ARCHIVED — Pacific Aquaculture Regulations

Warning This Web page has been archived on the Web.

Archived Content

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Vol. 144, No. 28 — July 10, 2010

Statutory authority

Fisheries Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue: On February 9, 2009, the British Columbia Supreme Court (BCSC) ruled that aquaculture is a fishery and therefore of exclusive federal jurisdiction. In essence, this ruling means that the majority of the elements of the British Columbia provincial aquaculture regulatory regime lie outside the constitutional jurisdiction of the Province. The current federal regulatory regime does not adequately cover the British Columbia aquaculture fishery. In order to afford the federal government time to consider legislation (including regulations) of its own, the BCSC suspended its decision until December 18, 2010. A federal regulatory regime is required to be in place by this date to ensure that new and existing aquaculture operations are able to obtain licences to operate lawfully under the Fisheries Act (the Act).

Description: Applicable provisions of existing regulations, such as the Fishery (General) Regulations (FGR), combined with the proposed Pacific Aquaculture Regulations (the Regulations) would replace existing provincial regulations that applied to the cultivation of fish. The proposed Regulations would work synergistically and would provide for management and regulation of aquaculture on the Pacific coast.

The proposed Regulations would establish a licensing regime, consistent with the regime for other fisheries managed by the Department of Fisheries and Oceans (DFO) but tailor-made to address the uniqueness of the aquaculture sector. The licence conditions under the proposed Regulations would regulate most aspects of aquaculture that were covered in the former provincial regulations, while other aspects such as deleterious substance deposit authorizations (section 36) would be managed directly through the proposed Regulations.

Cost-benefit statement: The baseline for the cost-benefit analysis is the current situation in which aquaculture is managed by the British Columbia government. The proposed Regulations would contribute to the long-term sustainability of aquaculture in British Columbia and would provide clarity to the Canadian regulatory environment for aquaculture.

The proposed Regulations would maintain the current economic activity in rural communities (in 2007, the overall revenue generated by the aquaculture industry in British Columbia was approximately $385M) and boost investor and consumer confidence (approximately 90% of farmed salmon is exported to the United States).

For the federal government, it is expected that the implementation of the regulatory regime would cost $8–8.5M annually. The high end of the estimate assumes that the existing provincial program (which costs approximately $5.7M annually) would be replaced by federal programming. The net effect for taxpayers is an approximately 40% increase over current provincial costs.

Business and consumer impacts: The proposed Regulations would be designed to reduce regulatory burden while ensuring proper management of the sector, particularly with respect to protection and conservation of fish and fish habitat.

Due to the consolidation of federal and provincial licences and authorizations to one licence, it is expected there would be some savings of administrative costs by aquaculture companies. Financial uncertainty and risks for farms would also be reduced through specific provisions for management of environmental aspects.

The current duplication in the area of fish habitat protection (federal) and finfish waste water control (provincial) would be eliminated.

Domestic and international coordination and cooperation: Throughout the regulatory development process, DFO has been consulting with other federal agencies, such as Environment Canada, the Canadian Food Inspection Agency, Health Canada and Transport Canada.

The Department of Fisheries and Oceans is working with British Columbia to transition the existing provincial regulatory regime into a federal regime. A Memorandum of Understanding (MOU) is being negotiated to capture how the roles and responsibilities would be covered between the provincial government and DFO. Consultations have been held with First Nations and other stakeholders, including industry and environmental non-government organizations (ENGOs).

This proposal is not expected to impact Canada’s trading partners.

Issue

Historically, British Columbia issued land tenures permitting aquaculturists to use the provincial land base, usually the seafloor, and in so doing had primary control over where aquaculture takes place within the province. The province had also been regulating ongoing operations of aquaculture facilities through aquaculture licences addressing environmental impacts of the operations, production volumes, species to be produced, animal welfare and aspects of fish health. In addition, the province addresses worker safety and general business aspects of the sector.

The existing federal involvement is limited to assessing an aquaculture site applicant’s development plans as submitted to the province regarding a new aquaculture site approval request, including determining any expected impacts to fish and fish habitat, species at risk or navigational concerns and any follow-up monitoring at an existing site.

In May 2008, citing concerns related to impacts of aquaculture activities on wild salmon populations, Alexandra B. Morton, the Pacific Coast Wild Salmon Society, the Wilderness Tourism Association, the Southern Area (E) Gillnetters Association, and the Fishing Vessel Owners’ Association of British Columbia (Morton et al.) applied to the BCSC for a judicial review of the Province’s decision to issue fish farming licences to Marine Harvest Inc. in the Broughton Archipelago. The applicants argued that aquaculture is a “fishery” and that aquaculture is therefore an area of exclusive federal jurisdiction.

On February 9, 2009, the BCSC released its decision finding that “finfish aquaculture” is a “fishery,” and falls within the exclusive jurisdiction of Parliament under subsection 91(12) of the Constitution Act, 1867. As a result, it ruled that the majority of the provisions of provincial aquaculture legislation lie outside the constitutional jurisdiction of the province. For example, the Finfish Aquaculture Waste Control Regulations under the British Columbia Environment Act were declared invalid, and the Aquaculture Regulations under the British Columbia Fisheries Act were read down to apply only to the cultivation of marine plants. Noting that it would not be in the public interest for the decision to take effect immediately, the court suspended the application of its decision for a period of 12 months, until February 9, 2010, in order to allow the federal government time to consider legislation (including regulations) of its own. A further extension was granted by the BCSC until December 18, 2010. While the Court case focused on finfish, the federal government’s position is that the federal jurisdiction applies equally to shellfish.

In considering a new regulatory regime, the federal government has considered the importance of covering the following elements:

  • Aquaculture licensing for the purposes of regulating the sector;
  • Farmed fish containment;
  • Fish health and sea lice management; and
  • Waste management as it applies to protection of fish and fish habitat and the deposit of deleterious substances.

In the absence of federal regulation, these missing elements would constitute a significant regulatory gap. The aquaculture industry would be put in the position of operating in a manner that would contravene the Fisheries Act (the Act), and this could be regarded as a signal to markets that aquaculture may not be a viable industry in British Columbia.

Objective

The proposed Regulations, together with applicable provisions of existing federal regulations would create a regulatory regime for aquaculture management in British Columbia. The objective of the proposed regulatory regime is to ensure the proper management of aquaculture, particularly with respect to protection and conservation of fish and fish habitat, in an open and transparent manner.

Furthermore, the proposed regulatory regime decrease administrative regulatory burden by consolidating approvals into fewer individual documents.

Management plans and supporting operational policies and guidelines, greater visibility of compliance efforts, increased public reporting of compliance and environmental performance data, and commitment to improving environmental performance would be expected to contribute to improved public confidence in the sector.

This in turn would improve the investment climate, and may contribute to increased economic opportunities for disadvantaged communities through growth in the sector.

Description

The proposed Regulations would be made pursuant to sections 36 and 43 of the Act. They would require that a licence be obtained in order to engage in aquaculture and would also detail the conditions of the licence that would be imposed. The conditions would include

  • Measures to minimize escapes, introductions and transfers, incidental catch, predator control, impacts to fish and fish habitat, fish health, sea lice, etc.;
  • Monitoring requirements; and
  • Record keeping, notification and reporting.

Applicable provisions of the Fishery (General) Regulations (FGR), combined with the proposed Regulations would replace the existing provincial regulations that applied to the cultivation of fish, creating a new federal regulatory regime for aquaculture in British Columbia. The FGR lays out administrative procedures related to the issuance of documentation, and contain a core set of licence conditions that may be applied to fishery activities.

Not only would the proposed Regulations address the legal rulings imposed by the BCSC decision, but they would allow for improvements to be made to the previous aquaculture regulatory regime in British Columbia. The proposed Regulations would reduce the administrative and regulatory burden that now exists by consolidating existing federal permits and authorizations currently being issued to the aquaculture sector into the proposed licensing regime. The consolidation would include

  • Introductions and transfers licences, currently managed under the FGR, sections 54 to 57;
  • Nuisance seal permits, currently managed under the Marine Mammals Regulations;
  • Harmful alteration, disruption and destruction of habitat authorizations, currently authorized under the Act, section 35; and
  • Management of incidental catch, currently authorized under the FGR and the Pacific Fisheries Regulations (PFR).

The proposed Regulations would allow the Minister to authorize the deposit of prescribed deleterious substances (i.e. fish feed and feces) into fish bearing waters. In order to authorize this deposit, a licence holder would be required to provide the Minister with documentation relating to the extent and magnitude of the deposits, proposed measures to mitigate impacts to fish and fish habitat, and follow up environmental monitoring data. The Minister would need to be satisfied that the deposit would not result in harmful alteration, disruption or destruction of fish habitat or adverse effects on fish, fish habitat or use of fish by man in waters outside the aquaculture facility.

Supporting the implementation of the regulatory regime, there would be program policies and Integrated Management of Aquaculture Plans (IMAPs), modeled after the Integrated Fisheries Management Plans currently used by DFO in other fisheries. The IMAPs would publicly document management objectives for each major sector (e.g. finfish, shellfish), specific operational directives and other matters as appropriate for the management of the sector. DFO would consider developing IMAPs at the area level of key species such as salmon to support consideration of cumulative impacts, and intends to consult on their development and maintenance. The IMAPs would then be used to set detailed licence conditions. IMAPs and operational directives would be consistent with national guidelines, respect other national and regional departmental priorities, and would integrate advice from stakeholders.

An enforcement and compliance strategy will be developed as part of the regulatory regime.

Regulatory and non-regulatory options considered

In the development of this proposal a wide range of options were initially considered, from policy only responses to legislative changes.

Policy only option

This option would involve DFO using only internal policies to replace the provincial regulatory system and would not involve the creation of any new federal or provincial legislation or regulations. A new regulatory regime can only be created via a federal legal instrument (i.e. legislation or regulation). DFO could choose to use existing authorizations and permits, including the introductions and transfers permit regime, the general habitat protection provisions, and the prohibition against depositing deleterious substances. No mechanism, however, would exist to license sites or regulate other impacts (e.g. escape minimization), and the aquaculture industry would be put in the position of operating in a manner that would contravene the Act. This outcome would be counter to DFO’s objectives to promote sustainable fisheries and aquaculture through the presence of effective, efficient and transparent regulatory regimes that build public confidence in the management of the sector. This option would be regarded as a signal to investment markets that aquaculture is not a viable industry in British Columbia.

Modify existing federal regulations

Modification of existing federal regulations to apply to aquaculture was considered as a potential option. This option proved problematic as many of the provisions under these regulations are unique to specific fishing activities and would create a number of significant regulatory gaps if adapted for aquaculture. While some of the provisions were applicable to aquaculture, the majority of the provisions were either not relevant to aquaculture or impossible to regulate given the nature of aquaculture activities. It was concluded that the modification of these existing federal regulations was not a feasible option.

Regulatory measure (chosen option)

A federal regulatory regime for aquaculture in British Columbia would provide an effective legal framework for continued management of the sector. The recommended federal regulatory regime would strengthen the federal government’s ability to implement stated priorities on prosperity, regulatory streamlining and sustainable communities, among others. In addition, the federally led program offers the ability to consolidate regulation significantly, thus improving the competitiveness of the industry while maintaining environmental responsibility of the sector.

The proposed regulatory initiative would maintain regulatory oversight of the aquaculture industry in British Columbia.

Benefits and costs

The baseline for the cost-benefit analysis is the current situation in which aquaculture is managed largely by the British Columbia government with DFO managing a few aspects such as the introductions and transfers permit regime, and the general habitat protection provisions. Currently, regulatory responsibilities of the British Columbia government include licensing sites, production volumes, species to be produced, animal welfare, fish health, sea lice, fish containment and waste control.

The proposed regulatory regime would allow for the continuation of aquaculture’s contribution to the British Columbia economy. Salmon farming in British Columbia generates over $50M in wages annually and contributed $370M to the provincial economy in 2007. Salmon farming is now the single largest food production sector of the provincial economy. Its 2006 total sales of over $425M exceeded those of the beef sector by almost $150M. British Columbia is the world’s fourth-largest farmed salmon producer, after Norway, Chile and Scotland. In 2007, British Columbia produced 8 700 tonnes of shellfish for a farmgate value of approximately $18.5M. Aquaculture directly supported employment of 2 100 people in 2007 and is a key employer in rural communities, particularly for the youth, the women and the First Nations. The proposed regulatory regime would help maintain this important industry for the British Columbia and Canadian economy.

DFO would incur the cost to implement the proposed regulatory regime. The funding requirements for federal programming associated with the proposed regulatory regime are estimated to be $8–8.5M annually. The current provincial regime currently costs British Columbia approximately $5.7M, meaning that the federal delivery of the proposed regime would result in a net incremental cost to taxpayers of $2.3–2.7M annually.

The federal government, through the regulatory program, would expect to have the opportunity to collect revenue through various means such as regulatory fees. In the short term, the proposed federal regulatory regime would not include a fee structure. However, it is expected that DFO will explore a fee structure in the future.

Aquaculture is viewed by many First Nations as an important economic activity. First Nations communities would benefit from the regulatory regime being in place through continued employment in addition to the potential for new opportunities (e.g. contracting for monitoring services, role in inspections). Currently, 6% of production jobs are occupied by First Nations.

Some aquaculture companies participate in habitat restoration and salmon enhancement programs of interest to First Nations. Continued regulation of aquaculture would allow for the continuation of these benefits for First Nations. In addition, some First Nations are receiving one-time and/or ongoing payments from companies operating in their territories and are entering into various forms of partnerships with such companies.

The aquaculture licence issued under the proposed regulatory regime would replace separate permits or authorizations for habitat, fish transfer permits, recapture permits, nuisance seals and incidental catch. This would reduce administrative burdens for industry. The proposed regulatory regime would also bring increased certainty to industry regarding the legality of activities under the Act. Continuing to regulate the industry, and improving its regulation, would contribute to a stronger reputation in the marketplace.

There would be no incremental costs anticipated related to environmental impacts. The current monitoring, mitigation and other measures required by the existing provincial and federal regime would continue under the proposed regulatory regime and be improved upon (e.g. environmental and sea lice monitoring). Enhanced reporting would build on existing industry processes to minimize any cost increases.

Under the proposed regulatory regime, DFO would license facilities and manage them in a manner which would decrease environmental effects by strengthening environmental protection measures compared to the current regulatory regime.

In summary, although the net incremental monetary cost to taxpayers of this program would be $2.3–2.7M annually, there would be several important qualitative benefits to aquaculture stakeholders. The industry in British Columbia would be able to continue operations, contributing to the British Columbia and Canadian economy, and would benefit from a reduction in regulatory burden. First Nations and the public (including ENGOs) would benefit by increased public reporting on performance, and through increased investment in compliance and enforcement. The aquaculture industry would continue to provide important economic activity in rural communities.

Rationale

In developing the proposed Regulations and its implementation program, DFO has considered consultation inputs, an assessment of current provincial and federal regulatory practice, provincial roles and responsibilities and environmental considerations.

By instituting the proposed regulatory regime, DFO intends to respond to the need to provide a new legal framework for aquaculture in British Columbia that would

  • be more efficient by reducing regulatory burden through fewer individual approvals;
  • be more effective by covering environmental matters within the scope of the Act; facilitate the use of integrated management of environmental impacts through IMAPs; support management of cumulative effects through area-based considerations of sector activities in IMAPs instead of considering environmental impacts solely on a site-by-site basis; and support the implementation of an integrated compliance and enforcement strategy; and
  • be more transparent by requiring increased reporting on environmental monitoring results and performance by licence holders, and providing increased and more timely public reporting of such environmental performance information.

Consultation

Discussions on federal options to respond to the Court’s decision began in March 2009, once the Province of British Columbia announced they would not be appealing the Court’s decision. Meetings were held with British Columbia provincial and municipal governments, First Nations and other stakeholder groups including industry, environmental groups and the general public. First Nations workshops were held in June 2009 in Vancouver and Campbell River. Official stakeholder consultations for the proposed Regulations began in December 2009, once the Minister had announced the intent to consider federal regulations, and concluded in March 2010. Workshops focused on the finfish and shellfish aquaculture sectors, as well as specific workshops for First Nations. In addition, a number of multi-stakeholder bilateral sessions were held. Workshops focused on discussions around a consultation document outlining the intentions of the proposed Regulations. DFO also provided an online consultation tool where stakeholders were given the opportunity to comment and make submissions concerning the proposed Regulations. Notice was posted on the DFO Web site and communicated to stakeholder groups through various other means. The online consultation remained open between December 4, 2009, and February 26, 2010.

In total, DFO received over 400 comments in response to the consultation document, not accounting for repetition within comments. These comments came from several stakeholder group submissions, individual’s emails and comments made at meetings. Most of the comments collected through the consultation process were positive and supported DFO in improving the regulatory regime for aquaculture in British Columbia. DFO has thoroughly considered all stakeholder comments during the regulatory drafting process. A summary of stakeholder comments is provided below. Consultations will be ongoing as the regulatory program develops.

A number of stakeholders voiced concerns over the scope of the proposed Regulations, including how shellfish aquaculture would be treated in comparison to finfish aquaculture and if enhancement facilities would be considered within the scope of the proposed Regulations. The proposed licence conditions would enable DFO to tailor specific requirements to each sector (e.g. finfish, aquaculture, enhancement facilities), with IMAP processes and associated plans, operational directives and strategies being the primary vehicle for development and consultation on these requirements.

Some stakeholder groups proposed that the Regulations should include provisions to require observers, paid for by licence holders, and the use of First Nations or other external Fisheries Guardians as additional compliance and enforcement measures, as a complement to, or in addition to, DFO Fishery Officers. As a consequential amendment to the proposed Regulations, the FGR observer provisions would be amended to encompass aquaculture-related activities and the observer provisions may be used to manage benthic, fish health and pest monitoring requirements. The use of Aboriginal Fisheries Guardians will remain possible.

Additionally, a number of stakeholders submitted input on the type of information that should be captured by the reporting requirements of the proposed Regulations. These suggestions were broad ranging, including reporting on escapes, sea lice numbers, use of therapeutants, and compliance and monitoring reports. The proposed Regulations lay out areas of notification and reporting that the Minister may require through licence conditions. The Privacy Act and the Access to Information Act govern what may be publicly released.

Environmental issues which have been raised during consultations include near and far field effects of aquaculture operations on the surrounding environment, sea lice and fish containment management, impact on wild resources, site requirements and conditions, and factors related to human enjoyment of property. The majority of comments received focused on the type of impacts that should be regulated, the need for monitoring, siting requirements, and reporting on performance. DFO is proposing requirements which are intended to reduce the impact of aquaculture activities on the surrounding environment. These provisions are within the authority of the Act. DFO will closely monitor environmental impacts and has developed an enforcement and compliance regime with the goals of proper control and management of fisheries and the conservation and protection of fish and fish habitat.

Some stakeholders also submitted comments related to fees. Some were concerned that fees might be increased while others suggested that fees should be tied to use of feed or other related environmental impacts associated with aquaculture activities. DFO is currently not proposing to include fees in the Regulations. However, further consultations and analyses will be conducted with the aim of including a fee structure in the Regulations in the future. Any future amendments to the Regulations regarding fees would comply with the requirements of the User Fees Act, if applicable, and would follow the federal regulatory development process, including pre-publication.

Implementation, enforcement and service standards

The proposed regulatory regime would be implemented through existing and new federal investments in

  • An Aquaculture Program Management (APM) element that would provide capacity to implement activities such as the following:
    • program oversight and management;
    • establishment and maintenance of program policies, and IMAPs at the sector and area level, with related operational guidelines for matters such as facility integrity, potential impacts of excess food and waste from aquaculture on the seabed, fish containment and escape management, fish health and sea lice;
    • ongoing consultation processes in support of IMAPs and other external engagement (e.g. with First Nations, Industry, ENGOs); and
    • overall regulatory program liaison with other initiatives such as ocean planning, national initiatives, the Province of British Columbia, and other federal government departments (e.g. Environment Canada, Canadian Food Inspection Agency, Transport Canada, Western Economic Diversification Canada);
  • An Information Management System element that would establish and maintain information management systems to support the licensing of aquaculture operations, regulatory management of the sector, decision-making, and public reporting;
  • A Regulatory Operations element that would include licence administration, site inspections, environmental monitoring, effectiveness assessments of mitigation of environmental impacts, and compliance and enforcement;
  • Science advice and research/new knowledge generation in support of regulatory delivery; and
  • Corporate Service support including financial administrative services, human resources, policy, communications, legal services, etc.

The mechanisms adopted to ensure compliance would include the use of licensing with enforceable conditions of operation, prohibitions, notification and reporting, environmental monitoring, inspection and warnings, with the ability to prosecute and prosecution. A detailed compliance and enforcement strategy would be developed. Compliance would be achieved through a combination of activities including unannounced site inspections by DFO staff, site audit activities to compare reported data and actual data, use of a triage approach to select sites for inspections (e.g. based on compliance history, environmental performance), public reporting of environmental and regulatory performance, and use of warnings. DFO would have the ability to not approve transfer of new fish to sites before certain environmental thresholds are achieved, to undertake prosecutions and to require “site observers” where other measures prove insufficient to achieve compliance.

The federal government is also in the process of negotiating a new Canada–British Columbia Memorandum of Understanding (MOU) with respect to aquaculture. The MOU is expected to lay out new roles and responsibilities for each party considering the Court decision, including that

  • the province of British Columbia would continue to be responsible for issuing land tenures (to occupy the seabed with moorings), for related land-use decisions, and for matters such as worker safety and the general business aspects of the sector; and
  • the federal government would be responsible for regulating and licensing ongoing operations of aquaculture facilities with respect to conservation and protection of fish and fish habitat and proper management and control of fisheries, and for pollution prevention measures (Fisheries and Oceans), as well as continuing their responsibilities for issuing approvals to aquaculture operations affecting navigation (Transport Canada); and addressing aspects of international and trade-related fish health and food safety (Canadian Food Inspection Agency).

The MOU would also lay out processes for the two parties to work together on issues of mutual interest such as the consideration of siting guidelines, the review of applications for new sites and site expansions, and sharing of information.

Performance measurement and evaluation

The proposed Regulations would reside under the Program Activity of Fisheries and Aquaculture Management (sub-program activity Aquaculture), and would contribute to the fulfillment of the departmental strategic outcomes of Sustainable Fisheries and Aquaculture.

As a distinct and new program within the department, DFO is in the process of finalizing a Performance Measurement Strategy (PM Strategy) for the British Columbia Aquaculture Regulatory Program. The PM Strategy components relate to program results, risk assessment, monitoring and evaluation.

Evaluation of this program will be conducted in accordance with the Policy on Evaluation (2009), which requires that comprehensive evaluation coverage of all direct program spending be completed over a five-year cycle. The evaluation will take a Value for Money approach and examine issues of relevance and performance.

An evaluation of this program will be scheduled for 2014–2015 and will be reflected in the Departmental Evaluation Plan (DEP) updated annually.

The evaluation will review the program against the following outcomes:

  • A foundation for a regulatory program and operational policies;
  • Effective and transparent integrated operational policies and regulatory requirements;
  • Informed First Nations and coastal communities;
  • Reliable data management for timely and accurate information;
  • Effective and integrated management and regulation of the sector to meet departmental mandates of conservation and protection of fish, proper control and management of fisheries and pollution management;
  • Prioritization of resources to mitigate highest risks in cost-effective manner;
  • Stakeholder awareness of the new regulatory regime;
  • Stakeholder confidence in the new regulatory regime; and
  • More timely and accurate information to support decision-making.

Achievement of these intermediate proposed Regulations outcomes are expected to support the final program outcome of increasing conditions to support a more vibrant and innovative aquaculture sector that is environmentally and socially sustainable and internationally competitive.

Contacts

Edward Porter
Team Leader
Regulatory Development
Aquaculture Management Directorate
Stewardship Unit
Department of Fisheries and Oceans
200 Kent Street, 14th Floor
Ottawa, Ontario
K1A 0E6
Telephone: 613-990-1459
Fax: 613-993-8607
Email: PAR-RPA@dfo-mpo.gc.ca

Peter Ferguson
Legislative and Regulatory Affairs
Department of Fisheries and Oceans
200 Kent Street, 14th Floor
Ottawa, Ontario
K1A 0E6
Telephone: 613-990-9325
Fax: 613-990-0168
Email: Peter.Ferguson@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to sections 36 and 43 (see footnote a) of the Fisheries Act (see footnote b), proposes to make the annexed Pacific Aquaculture Regulations.

Interested persons may make representations concerning the proposed Regulations within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Ed Porter, Team Leader, Regulatory Operations, Aquaculture Management Directorate, Fisheries and Oceans Canada, Room 14S010, 200 Kent Street, Ottawa, Ontario K1A 0E6 (tel.: 613-990-0184; fax: 613-993-8607; email: PAR-RPA@dfo-mpo.gc.ca).

Ottawa, July 5, 2010

JURICA ČAPKUN
Assistant Clerk of the Privy Council

PACIFIC AQUACULTURE REGULATIONS

INTERPRETATION

1. The following definitions apply in these Regulations.

“Act” means the Fisheries Act. (Loi)

“aquaculture” means the cultivation of fish. (aquaculture)

“nuisance fish” means fish that represent a danger to the equipment used in the operation of an aquaculture facility or the safety of persons in the facility. (poisson nuisible)

“prescribed activities” means

(a) the catching of fish for use in aquaculture;

(b) the catching of fish that is incidental to the operation of an aquaculture facility;

(c) the catching of fish that escape from an aquaculture facility; and

(d) the catching of nuisance fish. (activités réglementaires)

APPLICATION

2. These Regulations, except for section 10, apply in respect of aquaculture and prescribed activities in

(a) the territorial sea of Canada off the coast of British Columbia; (b) the internal waters of Canada off the coast of British Columbia; and

(c) the internal waters of Canada in British Columbia.

AQUACULTURE LICENCES

3. The Minister may issue an aquaculture licence authorizing a person to engage in aquaculture and prescribed activities.

4. For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify, in addition to the conditions respecting the matters set out in subsection 22(1) of the Fishery (General) Regulations, conditions in an aquaculture licence respecting any of the following matters:

(a) the species and quantities of fish that are permitted to be cultivated and their place of origin;

(b) the age, sex, stage of development or size of fish that are permitted to be cultivated;

(c) the waters in which aquaculture and prescribed activities are permitted to be engaged in;

(d) the composition of the fish feed that is permitted to be used in aquaculture, as well as the storage of fish feed in the aquaculture facility;

(e) the measures that must be taken to control and monitor the presence of pathogens and pests in the aquaculture facility;

(f) the measures that must be taken to monitor the presence of pathogens and pests in wild fish in the waters that may be affected by the operations of the aquaculture facility;

(g) the measures that must be taken to minimize the escape of fish from the aquaculture facility and to catch the fish that escape;

(h) the catching of nuisance fish;

(i) the measures that must be taken to minimize the impact of the aquaculture facility’s operations on fish and fish habitat;

(j) the measures that must be taken to monitor the environmental impact of the aquaculture facility’s operations;

(k) the equipment that is permitted to be used in the operation of the aquaculture facility and the manner in which it is permitted to be used;

(l) the notice that must be given to the Minister before

(i) a substance is used to treat fish for pathogens or pests,

(ii) fish are transferred to the aquaculture facility, or

(iii) fish are harvested;

(m) the verification by an observer of any activity that is part of the aquaculture facility’s operations;

(n) the records that must be kept in relation to any matter referred to in paragraphs 61(2)(a) to (f) of the Act, including records of

(i) the species, quantity, age and sex of fish transferred to the aquaculture facility and the date of their transfer and harvest,

(ii) the species and quantity of any fish found in the aquaculture facility that were not transferred to the facility by the licence holder,

(iii) any diagnosis or recommended treatment of a fish pathogen or pest present in the aquaculture facility, including the extent to which the pathogen or pest affects the fish in the facility,

(iv) any substance used to treat fish for pathogens or pests, including the quantity used and the date and method of its administration,

(v) the number and species of fish that die prior to harvest,

(vi) the number and species of nuisance fish that die as a result of the aquaculture facility’s operations,

(vii) the inspection and maintenance of the equipment used in the operation of the aquaculture facility,

(viii) any major failure of the aquaculture facility’s containment structures and the quantity of any fish that escape from the facility,

(ix) the data collected in the monitoring of the environmental impact of the aquaculture facility’s operations, and

(x) the data collected in the monitoring of the health of fish in the aquaculture facility and in the waters that may be affected by its operations; and

(o) the manner and form in which the records are to be kept, the times at which and the person to whom the records are to be produced and the period for which the records are to be retained.

INCIDENTAL CATCH

5. Unless the retention of incidental catch is expressly authorized by an aquaculture licence, every person who catches a fish incidentally must immediately return it to waters outside the aquaculture facility and, if the fish is alive, in a manner that causes it the least harm.

DELETERIOUS SUBSTANCES

6. For the purposes of paragraphs 36(4)(b) and (5)(f) of the Act, the Minister is prescribed as the person who may authorize a deposit in connection with an aquaculture facility of any of the following deleterious substances:

(a) fish feed;

(b) fish fecal matter;

(c) any liquid that contains more than 50 per cent by volume of fish blood;

(d) any liquid from a container that was used for transporting fish to, from or within the aquaculture facility;

(e) disinfectants;

(f) anti-foulants; and

(g) wastewater from the aquaculture facility.

7. The Minister may only authorize the deposit of any deleterious substance set out in section 6 if

(a) the request for the authorization is made by a person who holds or who has applied for an aquaculture licence;

(b) the request is accompanied by the following information:

(i) the deleterious substance that the person proposes to deposit and the quantity to be deposited;

(ii) an analysis, based on a scientifically acceptable methodology, of the composition of any fish feed, disinfectants or anti-foulants that the person proposes to deposit,

(iii) an analysis, based on a scientifically acceptable methodology, that identifies the waters outside the aquaculture facility that are likely to be affected by the deposit and the consequences of the deposit to fish and fish habitat in those waters,

(iv) the measures proposed to mitigate and monitor the consequences of the deposit to fish and fish habitat in the waters referred to in subparagraph (iii), and

(v) in the case of a request for an authorization made by a holder of an aquaculture licence who was previously authorized under this section to deposit a substance, the information collected in the monitoring of the consequences of the deposit; and

(c) the Minister is satisfied that the deposit would not result in

(i) any harmful alteration, disruption or destruction of fish habitat in waters outside the aquaculture facility, or

(ii) adverse effects in waters outside the aquaculture facility on fish, fish habitat or the use by man of fish.

8. The Minister may only authorize the deposit of any deleterious substance set out in section 6 for periods of one year or less.

PROHIBITIONS

9. A person must not engage in aquaculture or prescribed activities except under the authority of an aquaculture licence.

10. A person must not dump dead fish cultivated in an aquaculture facility in Canadian fisheries waters off the coast of British Columbia or the internal waters of Canada in that province.

CONSEQUENTIAL AMENDMENTS

FISHERY (GENERAL) REGULATIONS

11. The definition “document” in section 2 of the Fisheries (General) Regulations (see footnote 1) is replaced by the following:

“document” means

(a) a licence, fisher’s registration card or vessel registration card that grants a legal privilege to engage in fishing or any other activity related to fishing and fisheries; and

(b) an authorization to deposit, in connection with an aquaculture facility, a deleterious substance prescribed under the Pacific Aquaculture Regulations; (document)

12. Subsection 3(4) of the Regulations is amended by striking out “and” at the end of paragraph (j), by adding “and” at the end of paragraph (k) and by adding the following after paragraph (k):

(l) the Pacific Aquaculture Regulations.

13. Subsection 35(1) of the Regulations is replaced by the following:

(1) This section does not apply in respect of marine mammals or fish cultivated in an aquaculture facility.

14. Subsections 39(3) to (5) of the Regulations are replaced by the following:

(3) An observer who is assigned the duties set out in paragraph (2)(a) shall perform the duties while on board a fishing vessel or in an aquaculture facility.

(4) An observer who is assigned the duties set out in paragraph (2)(b) or (c), as the case may be, shall perform those duties while at a fish landing station or in an aquaculture facility.

15. Section 58 of the Regulations is amended by adding the following after subsection (2):

(3) Subsections (1) and (2) do not apply to works or undertakings to which the Pacific Aquaculture Regulations apply.

PACIFIC FISHERY REGULATIONS, 1993

16. Paragraph 3(2)(c) of the Pacific Fishery Regulations, 1993 (see footnote 2) is replaced by the following:

(c) aquaculture or prescribed activities, as defined in the Pacific Aquaculture Regulations, in

(i) the territorial sea of Canada off the coast of British Columbia,

(ii) the internal waters of Canada off the coast of British Columbia, and

(iii) the internal waters of Canada in British Columbia; or

MARINE MAMMAL REGULATIONS

17. The Marine Mammal Regulations (see footnote 3) are amended by adding the following after section 3:

3.1 Despite paragraph 3(a), these Regulations do not apply to fishing for marine mammals that is authorized by an aquaculture licence issued under the Pacific Aquaculture Regulations.

COMING INTO FORCE

18. These Regulations come into force on the day on which they are registered.

[28-1-o]

Footnote a
S.C. 1991, c. 1, s. 12

Footnote b
R.S., c. F-14

Footnote 1
SOR/93-53

Footnote 2
SOR/93-54

Footnote 3
SOR/93-56