Discussion Paper: A Canadian Aquaculture Act

Discussion Paper: A Canadian Aquaculture Act
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Table of Contents

Introduction

Aquaculture is the farming of aquatic organisms in fresh or saltwater. It is an established practice in many parts of the world. In Canada, aquaculture was first used to enhance natural stocks. It is now a large-scale commercial industry across the country, providing direct and indirect economic benefits to many local and regional economies, and has the potential to nearly double production by 2028.

Aquaculture has been identified, both internationally and within Canada, as a key agri-food sector that will be important in supporting the world’s growing demand for animal protein, and contributing to food security and human health in a low-carbon production manner. Aquaculture in Canada occurs in all provinces and the Yukon Territory and employs thousands of Canadians, including many in rural, coastal and Indigenous communities. According to 2018 data from Statistics Canada, the sector generated 3,500 direct jobs and produced over 190 thousand tonnes of cultured product, which directly contributed over $2 billion (plus associated economic activity) to Canada’s gross domestic product.

Aquaculture regulation in Canada

In Canada, aquaculture has been regulated since the 1980s through existing federal-provincial/territorial legislation and regulations that find application to specific aquaculture activities. Over time, incremental changes to these multiple laws and policies have created a complicated regulatory system with inconsistent requirements across the country. Fisheries and Oceans Canada (DFO) is the lead federal regulator and manages aquaculture under the Fisheries Act—legislation which was designed for wild capture fisheries and does not reflect the distinct needs of aquaculture. However, regulatory activities in aquaculture span multiple federal organizations and several different pieces of federal legislation that retain jurisdiction.

There are currently three distinct regulatory approaches to aquaculture across Canada:

Overlaying these three approaches, the federal government plays a national, cross-cutting, coordination role in aquaculture governance.

Creation of an Aquaculture Act

The 2016 Standing Senate Committee on Fisheries and Oceans (SCOFO) report, Ocean of Opportunities and the February 2017 report of the Advisory Council on Economic Growth both highlighted the need for legislative reform. DFO conducted initial engagement on a proposed Aquaculture Act from the fall of 2017 to the spring of 2018 to assess preliminary views.

At the December 2018 meeting of Canadian Council of Fisheries and Aquaculture Ministers (CCFAM), federal, provincial, and territorial ministers confirmed support for a federal Aquaculture Act of “limited scope that respects federal, provincial and territorial jurisdictions, and provides greater clarity to the sector.” Following this direction, DFO again held a series of in-person and online consultations through the spring and fall of 2019 (a summary of the 2019 engagements is available here.)

The 2019 mandate letter from the Prime Minister to the Minister of Fisheries, Oceans, and the Canadian Coast Guard asks the Minister to “begin work to introduce Canada’s first-ever Aquaculture Act”. This commitment builds on the 2018 CCFAM agreement to develop a federal Aquaculture Act of limited scope.

Purpose

This discussion paper is designed to outline key elements and authorities that DFO is proposing as part of the proposed federal Aquaculture Act. Many of these elements would be replicated from relevant sections of the Fisheries Act and adapted for an aquaculture context, while some may be purpose-built for the proposed Act. This paper poses a series of questions on important public policy issues to help further refine the legislative proposal.

Based on the agreement between federal, provincial, and territorial ministers, as well as feedback provided during previous rounds of engagement, DFO intends to table federal legislation of limited scope that would:

This discussion paper provides an overview of the elements of the proposed Aquaculture Act, including potential enhancements to the existing management regime as well as possible new measures.

All those interested, affected, or involved in aquaculture are encouraged to participate in these consultations. Written comments in response to this discussion paper or the questions it poses can be e-mailed to AquacultureConsultations.XMAR@dfo-mpo.gc.ca or mailed to:    

Aquaculture Policy Directorate
200 Kent Street
Ottawa, Ontario
Canada
K1A0E6

The deadline for submission of written comments is January 15, 2021.

Element 1: Application, purpose, and definitions

Current framework

The purpose of the Fisheries Act is to help ensure the proper management of fisheries, and the conservation and protection of fish and fish habitat. The Fisheries Act begins with a purpose statement that outlines the Act’s scope and objective. Further, the Act states where it applies geographically—namely, everywhere in Canada, including all waters in its territorial sea.

The Fisheries Act also includes a list of relevant definitions that outline the meaning of important terms in the legislation. Of note, aquaculture is not defined under the Fisheries Act.

Proposed modifications

The proposed Aquaculture Act would include a preamble section, a new feature found in contemporary Canadian legislation to help explain the philosophy of an act and what it is trying to achieve. It is proposed that the preamble for the Aquaculture Act include text reflecting the Government’s commitment to foster: the sustainable development of the aquaculture industry; healthy aquatic ecosystems; further Indigenous reconciliation; and an effective and nationally consistent regulatory system.

It is proposed that the Aquaculture Act would define in Canadian federal law—some for the first time—the many aspects of aquaculture, including definitions of aquatic species and the practice of aquaculture itself. It is proposed that the Act would also be forward looking by being inclusive of emerging aquatic species for cultivation, as well as enabling aquaculture in Canadian offshore waters.

Element 2: Leases, licences, and fees

A key element of the aquaculture regime is the Minister’s ability to issue leases and licences to aquaculture operations in areas under federal jurisdiction. An aquaculture lease grants exclusive access to a defined area of submerged land for the purpose of conducting aquaculture, while the licence enables the operation of the activity. Both leases and licences have conditions attached that help with the proper management of aquaculture operations, as well as mitigate potential impacts on the environment.

Establishing an effective, flexible, and comprehensive lease and licensing system that applies where the federal government issues leases and licences is a primary requirement of the Aquaculture Act.

Current framework

The Fisheries Act allows the Minister to issue leases and licences, as well as prescribe associated fees for fisheries or fishing. In British Columbia, DFO currently issues aquaculture licences, while in Prince Edward Island, DFO issues leases with conditions on the lease agreements. Elsewhere, the provincial or territorial government issues both the lease and licence.

The Minister also has the authority to issue management orders to temporarily prohibit an activity or impose a requirement to address threats to the proper management and control of fisheries and the conservation and protection of fish. There are other licences the Minister issues that apply to aquaculture, one example being introduction and transfer licences for the movement of fish to particular areas to mitigate the potential ecological, genetic, and disease impacts of those movements.

Proposed modifications

Aquaculture is an area of shared jurisdiction and a federal Aquaculture Act would respect the existing regulatory framework. DFO, provinces and territories would continue to issue leases and licences where they currently do so.

As under the Fisheries Act, the authorities to issue, suspend or cancel leases and licences would be included in the proposed Act and detailed in regulations. Unlike under the current framework, DFO would propose that the regulations under the new Act would specify the Minister’s ability to amend, suspend, cancel, renew, revoke, or otherwise modify the lease or licence documents. Further, it is proposed that the Act also include the authority for the Minister to issue emergency management orders to temporarily prohibit an activity or impose a requirement, and enable the regulations under the Act to issue them.

The Aquaculture Act would also seek to establish a forward-looking licensing regime that captures new types of aquaculture, including new species, methods and locations. For example, it is proposed the Act consider including a clear mechanism to enable alternative forms of aquaculture in federal jurisdiction, including offshore waters, as well as an experimental leasing and licensing system to facilitate the development of novel or experimental aquaculture methods.

Element 3: Indigenous reconciliation

The Government is committed to reconciliation with Indigenous peoples and the Prime Minister has directed every Cabinet minister to determine what they can do in their specific portfolio to accelerate reconciliation with First Nations, Inuit, and Métis.

The role of Indigenous peoples in the aquaculture industry is significant and growing, with many groups participating directly in the industry across Canada. Indigenous groups are seeking wider collaboration on numerous fronts in the sector, as well as further recognition of the articles of the United Nations Declaration on the Rights of Indigenous peoples. There are more than 255 First Nations across the country that are currently involved in various aspects of aquaculture activities. Additionally, over 75% of the salmon farmed in British Columbia is produced in areas with agreements between Indigenous nations and the Federal and Provincial governments.

Current framework

Amended in 2019, the Fisheries Act now includes multiple mechanisms that promote reconciliation. Specifically, the Act allows the Minister to enter into an agreement with any Indigenous governing body and any body—including a co-management body—established under a land claims agreement for purposes such as facilitating cooperation and enhanced communication. Further, when making a decision under the Act, the Minister must “… consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982”. The Act also protects any Indigenous knowledge provided to the Minister by classifying the information as confidential.

Proposed modifications

It is proposed that the Aquaculture Act replicate these newly developed elements of the Fisheries Act. Since aquaculture occurs in or near the traditional territories of many Indigenous nations in Canada, and multiple Indigenous peoples participate directly and indirectly in aquaculture, the Aquaculture Act would establish a clear method to enable participation, while respecting Indigenous rights.

Element 4: Cooperation

The Act would be designed in a flexible way to reflect the different relationships that exist between orders of government across the country. This would facilitate the administrative cooperation between governments, Indigenous partners, and communities.

Current framework

The Fisheries Act includes various mechanisms that enable cooperation and delegation agreements. The Minister may form agreements with other governments and Indigenous governing bodies to clarify any overlap that may exist between their respective jurisdictions. The Act also provides the required authority to delegate part of the Act’s administration. The Act also allows the Minister to establish advisory bodies to advise the Minister on any decision that needs to be made under the Act.

Proposed modifications

It is proposed that the Aquaculture Act would clearly outline and enable forms of regulatory cooperation between governments, including Indigenous governing bodies, by mirroring the current Fisheries Act construct for agreements and delegation.
The Aquaculture Act would also include authorities similar to those under the Fisheries Act to enable/support area-based management. The Minister would be able to establish areas that represent a unified ecological or social unit, as identified through a collaborative process, and allow Indigenous groups and local stakeholders to provide advice on decisions made in a given area. The intention would be to allow the Minister the opportunity to discuss the spatial allocation of aquaculture sites with provinces, Indigenous groups and local communities, and to harmonize aquaculture activities with other users of the aquatic resource in a defined area.

Element 5: Environmental protection

Aquaculture must respect wild fish, fish habitat, and other users in the aquatic space. The Aquaculture Act would clearly and appropriately prohibit specific harmful activities, and enable the sustainable management of the aquaculture sector.

Current framework

The Fisheries Act establishes multiple environmental prohibitions, which apply unless the prohibited activities are authorized under the Act. These prohibitions are:

The Fisheries Act also includes a variety of specific prohibitions pertaining to unauthorized fishing, non-compliance with licence conditions, or obstructing enforcement officers. Additionally, the different fishing regulations establish more specific prohibitions.

Proposed modifications

It is proposed that the Aquaculture Act maintain and potentially enhance the environmental prohibitions found under the Fisheries Act, but modify what, and the conditions under which, otherwise-prohibited activities may be authorized. There are many other issues impacting fish and fish habitat, that can be addressed under the Act and more precisely outlined in regulations. Whether included in the Act or in regulations, the regulatory framework governing aquaculture would prohibit (with exceptions):

Since the Aquaculture Act would have environmental protection provisions that would mirror those under the Fisheries Act, the proposed Act would exclude application of Fisheries Act provisions, to avoid duplication where relevant. Issues related to navigation would continue to be addressed by the Canada Shipping Act, 2001 and the Canadian Navigable Waters Act ; similarly, issues related to animal health and disease would continue to be addressed by the Health of Animals Act. Environmental prohibitions under the proposed Act would apply across Canada and be additional to any provincial/territorial requirements.

Element 6: Enforcement and alternative compliance measures

The Aquaculture Act must include a broad and modern range of tools to enforce the Act to help ensure DFO is able to meet its commitment to sustainably manage aquaculture and protect fish and fish habitat.

Current framework

The Fisheries Act and its regulations include many provisions related to enforcement. In general, the Act enables specific enforcement powers and outlines the roles of enforcement personnel. The fishery officer is the principal agent enforcing the law and has powers that include the right to search, seize, detain, and arrest. The Fisheries Act also outlines the powers of fishery guardians, inspectors, and analysts.
There are a range of tools available to enforce DFO legislation commensurate with the level of harm involved. One tool is the power to prosecute individuals and corporations guilty of violating the Fisheries Act or its regulations. The Fisheries Act also allows the issuance of tickets and inspector’s directions, as well as the use of alternative measures agreements to support effective enforcement, restorative measures, and promotion of future compliance.

Tickets allow a fishery officer to penalize offences as they occur, with the goal of promoting immediate compliance. Alternative measures agreements allow a guilty offender to negotiate an alternative to a monetary or custodial penalty in favour of a restorative action that is more appropriate.

Proposed modifications

The Aquaculture Act would consider making available a full range of enforcement tools to manage aquaculture activities, such as tickets, an administrative monetary penalty system (AMPS), inspector’s directions and alternative measures resolutions, as well as the traditional route of judicial prosecution. These options would allow DFO the discretion to match a consequence to each offence to help ensure appropriate corrective action and remediation, where warranted.

The Contraventions Regulations generally limit tickets to a maximum value of $500, making them more appropriate for minor infractions. An AMPS would target more severe violations and allow DFO to, for the first time, impose much larger monetary penalties. Issuing an administrative monetary penalty for a violation would not preclude the Minister’s ability to prosecute.

Administrative measures targeting aquaculture could also prove to be a powerful incentive to discourage/correct unlawful activities. Offenders could be issued a surety bond or refused a licence until a certain incident is resolved. In all cases, these different measures would only be paired to aquaculture activities that are regulated under the Aquaculture Act. Provincial/territorial laws outline the penalties associated under each provincial/territorial regulatory regime.

Element 7: Regulations

One of the central purposes of an Act is to enable the making of regulations, which in turn define the application and enforcement of the legislation.

It is DFO’s intention to consolidate all existing aquaculture provisions—currently spread across a number of separate regulations under the Fisheries Act—into a single set of aquaculture-specific regulations under the proposed Aquaculture Act. Further, it is the Department’s intention that all aquaculture-related activities be managed under the new Act; as a consequence, the Fisheries Act would no longer apply to aquaculture activities, where feasible, and consequential amendments to the Fisheries Act and its regulations would be made to reflect this shift.

Current framework

The Fisheries Act allows the creation of regulations which target specific issues related to the general purpose of the Act. Regulations made under the Fisheries Act can be scoped to a portion of the Act’s application and purpose, leading to multiple geographically- and activity-specific fishery regulations. The Fisheries Act also enables the incorporation by reference of documents, and the Aquaculture Activities Regulations currently incorporates by reference the Aquaculture Monitoring Standard.

Proposed modifications

Many of the current regulatory provisions that impact aquaculture operators were not originally designed with aquaculture in mind. DFO would take this opportunity to improve the federal regulatory management of aquaculture through this legislative and regulatory renewal. The Aquaculture Act would provide authorities to make aquaculture-specific regulations to address, among other topics, environmental protection, enforcement, leasing and licensing, and reporting.

The regulation-making authorities would be developed in a manner to provide flexibility to address emerging issues without having to amend the Act for every novel situation. For instance, the proposed Act would enable the federal government to regulate offshore aquaculture, even though the practice is in its nascency. If and when offshore aquaculture becomes viable, the Government would be able to develop regulations to lease and license offshore activities, without having to amend the Act.

Further, as the aquaculture industry develops innovative technologies to address new opportunities and meet federal legislative and regulatory environmental requirements, the proposed Act would be developed from a technology-neutral, outcomes-based perspective that would not hinder the sustainable development of the industry.

It is also proposed that the Act allow technical documents to be incorporated by reference in regulations; this allows these documents to be progressively amended from time-to-time to reflect the latest science and innovation without the burden of amending the regulations. Examples include standards, guidelines, or codes of practice. These documents also provide an opportunity to collaborate with other regulators through co-development.

Element 8: Public reporting and legislative review

The Aquaculture Act would include a modern range of measures to support effective public reporting, accountability and transparency. These tools would foster public confidence in the sustainable management of the aquaculture industry.

Current framework

In an effort to promote good governance, the Fisheries Act has a number of public accountability mechanisms and was recently amended to include a public registry. This registry (not yet in force) would allow Canadians to view documents that contain important information regarding fisheries management. DFO publishes environmental data on its website that reports on a host of indicators, including fish escapes, fish health, and sea lice counts. Further, the recent amendments established a five-year legislative review process: in the event that certain aspects of the Act are no longer functioning as intended, Parliament would be able to make amendments on a regular basis.

Proposed modifications

The proposed Aquaculture Act would have similar requirements for public reporting, detailing how the federal government implements the law. Among the transparency and accountability mechanisms that could be incorporated into the Aquaculture Act is a public registry that could include agreements and orders made by the Minister to administer the Act, as well as relevant reports, standards, policies and guidelines. The Act would enable DFO to require operators to, among other things, monitor and share records of diverse environmental parameters, notify DFO of mass mortality events occurring on or near aquaculture sites, and notify DFO of escapes of cultured species.

It is proposed this information be included in the public registry and be used to inform management decisions taken by the Minister. It is also proposed that the Act include a legislative review process to help ensure the legislation could be progressively adapted and improved to address emerging issues.

Additional topics

The aim of this discussion paper is to provide the reader with a clear sense of the federal government’s legislative intent for the federal management of aquaculture in Canada, as well as foster engagement with and between Canadians on the topic. There may be additional ideas not captured here that Canadians may propose in the course of this engagement process; these will be considered as part of the legislative engagement process. All those interested, affected, or involved in aquaculture are encouraged to participate in this national conversation.

Annex 1: Crosswalk between Fisheries Act Provisions and Proposed Aquaculture Act

Crosswalk between the Fisheries Act Provisions and the proposed Aquaculture Act
Element Fisheries Act (FA) Aquaculture Act (AA)
1.   Application, purpose, and definitions 1  Short Title  
Not in FA May consider inclusion of a Preamble.
2  Interpretation General definitions section.
2.1  Purpose FA purpose includes objectives of managing fisheries and protecting fish and fish habitat
3  Application General issues of application; otherwise application clauses would be found under appropriate sections.
2.   Leases, licences, and fees 4  Licences to take spawn  Address under AA or leave to FA?
7  Fishery Leases and Licences Develop authorities to issue and cancel licences, and prescribe fees.
8  Fees
9  Suspending or Cancelling licences
9.1-9.7  Fisheries Management Orders Develop authority for the Minister to issue management orders to temporarily prohibit an activity or impose a requirement.
43.4  compliance with terms and conditions Develop equivalent authorities to FA 43.4.
3.   Indigenous reconciliation 2  Indigenous governing body Develop equivalent definition.
2.3-2.4  Rights of Indigenous peoples of Canada Develop equivalent section in AA.
61.2  Indigenous Knowledge of the Indigenous peoples of Canada Develop equivalent section in AA.
4.   Cooperation 4.01  Advisory Panels Develop aquaculture specific advisory panels that can include any subset of stakeholders
4.1-4.4(3)  Agreements, Programs and Projects Develop authorities for making equivalency agreements with provinces, territories and Indigenous governing bodies, as well as programs and projects, (e.g., grants, loans contributions, guarantees, and insurance).
5.   Environmental protection 34.2  Standards and Codes of Practice Develop authority to design standards, codes of practice, guidelines, or recognizing existing ones.
34.4  Death of Fish Develop equivalent prohibitions to s.34.4, 35, 36 in AA.

Amend FA 35 and 36, as necessary, to recognize relevant activities authorized under AA regulations.

Create equivalent of FA s.35.1 in AA.
35.  Harmful alteration, disruption, or destruction of fish habitat.
35.1  Designated projects
36.  Deposit of deleterious substances
37  Minister may require plans and specifications, etc. Address under AA or leave to FA?
Not in FA May want to develop authorities to manage aspects of animal husbandry (not addressed by the CFIA) that may impact the environment.
Not in FA May include mechanisms to enable area-based management of aquaculture.
6.   Enforcement and Alternative Compliance Measures 5  Fishery Officers and Fishery Guardians Develop powers to designate officers and guardians for purposes of AA.
38  Power to designate inspectors, etc. Develop power to designate inspectors for purposes of AA.
56.1  Analyst Develop power to allow specialists to be deemed a ‘technical analyst’ for court proceedings.
39  Search (officer/inspector) Develop aquaculture-specific authorities for officers, etc.
49-56  Powers of Fishery Officers and Fishery Guardians
23  Fishing in limits leased to another Develop aquaculture-specific offence, punishment, ticketing, administrative monetary penalty, and alternative measures agreements sections. Tiered approach.
40-42  Offence and punishment, etc.
62-63  Obstruction and False Information
70-77  Disposition of Seized Things
78-79.61  Offence and Punishment (punishment not otherwise provided for)
79.7  Ticketable Offences
80-88  Applications of Penalties and Forfeitures
86.1-86.95  Alternative Measures Agreements
7.   Regulations 34.1  Factors Develop list of factors that the Minister must consider before recommending to Governor in Council (GIC) that regulations be made.
43  Governor in Council may make regulations Develop a section with broad GIC regulation-making authorities, similar to FA s.43.
43.3  Regulations – Minister Develop a section with Ministerial regulation-making authorities, similar to FA s.43.3.
89-91  Incorporation by reference Develop section(s) in AA that permit (ambulatory) incorporation by reference.
8.   Public reporting and other 2.5  Considerations for decision making Develop set of considerations specific to aquaculture sector.
11-16  Cost recovery for using facilities Develop cost recovery mechanism for letting others use DFO facilities.
42.2  Public registry (currently not in force) Develop requirement for Minister to establish public registry to facilitate access to records relating to specific sections of the AA.
57-59  Culture of fish (i.e., oysters) Move from FA to AA.
61.-61.1  Information returns Develop authorities for information returns.
92. 5-year review Develop similar mechanism for a mandatory regulatory review under AA.