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Vol. 144, No. 25 — December 8, 2010

Registration

SOR/2010-270 November 26, 2010

FISHERIES ACT

P.C. 2010-1480 November 25, 2010

His Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 43 (see footnote a) of the Fisheries Act (see footnote b), hereby makes the annexed Pacific Aquaculture Regulations.

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 an imminent danger to the equipment used in the operation of an aquaculture facility, the safety of persons in the facility or the fish cultivated in the facility. (poisson nuisible)

“prescribed activities” means

(a) the catching of fish for the purpose of cultivation;

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

(c) the catching of fish for the purpose of complying with any monitoring condition specified in an aquaculture licence;

(d) the catching of fish that escape from an aquaculture facility for the purpose of returning them to the aquaculture facility or otherwise disposing of them; and

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

APPLICATION

2. These Regulations 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 that are not in that province;

(c) the internal waters of Canada in British Columbia; and

(d) any facility in British Columbia from which fish may escape into Canadian fisheries waters.

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

(e) the harvesting of fish in the aquaculture facility;

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

(g) 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;

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

(i) the catching of nuisance fish;

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

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

(l) 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;

(m) 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;

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

(o) 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 under the authority of the licence,

(iii) any diagnosis or 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, and the cause of death,

(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

(p) 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, if it is alive, to waters outside the aquaculture facility in a manner that causes it the least harm.

KEEPING AND PRODUCING LICENCE

6. Every holder of an aquaculture licence must

(a) keep the licence or a copy of it in the aquaculture facility and produce it on the demand of a fishery officer or fishery guardian; and

(b) when engaged in activities authorized by the licence outside the facility, produce the licence or a copy of it on the demand of a fishery officer or fishery guardian.

PROHIBITION

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

CONSEQUENTIAL AMENDMENTS

FISHERY (GENERAL) REGULATIONS

8. Subsection 3(4) of the Fishery (General) Regulations (see footnote 1) 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.

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

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

10. 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 those 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) shall perform those duties while at a fish landing station or in an aquaculture facility.

(5) An observer who is assigned the duties set out in paragraph (2)(c) shall perform those duties while at a fish landing station or in an aquaculture facility.

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

(3) Subsections (1) and (2) do not apply to any work or undertaking to which the Pacific Aquaculture Regulations apply.

PACIFIC FISHERY REGULATIONS, 1993

12. 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 that are not in that province,

(iii) the internal waters of Canada in British Columbia, and

(iv) any facility in British Columbia from which fish may escape into Canadian fisheries waters; or

MARINE MAMMAL REGULATIONS

13. 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

14. These Regulations come into force on December 18, 2010.

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 lies 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: The Pacific Aquaculture Regulations (the Regulations) and the applicable provisions of existing federal fishery regulations, such as the Fishery (General) Regulations (FGR), replace existing provincial regulations and some federal regulations that were previously applied in the management of aquaculture activities in British Columbia. The Regulations work synergistically and provide for the management and regulation of aquaculture on the Pacific coast.

The Regulations 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 in British Columbia. The Regulations apply to most aspects of aquaculture that were covered in the former provincial regulations, as well as those covered by the Marine Mammal Regulations, and individual Harmful Alteration, Disruption and Destruction (HADD) authorizations issued under section 35 of the Act.

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

The Regulations will maintain the current economic activity in rural communities (in 2007, the overall revenue generated by the aquaculture industry in the province 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 will cost $8 to 8.5M annually to implement. The high end of the estimate assumes that the existing provincial program (which costs approximately $5.7M annually) will be replaced by federal programming. The net effect for taxpayers is an approximately 40% increase over current provincial costs. These incremental costs are largely attributable to performance management, evaluation and reporting activities, such as increasing transparency through regular public reporting of performance information and the collection and synthesis of regulatory compliance information, as well as increased enforcement capacities.

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

Through the consolidation of federal and provincial licences and authorizations to one licence, it is expected that aquaculture companies will accrue some reductions in administrative costs.

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

DFO is working with the Province of British Columbia to transition the existing provincial regulatory regime into a federal regime. A Memorandum of Understanding (MOU) has been developed, defining roles and responsibilities between the provincial government and DFO. First Nations and other stakeholders, including industry and environmental non-governmental organizations (ENGOs) were consulted on the development of the Regulations.

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, 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 province’s 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 designing 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 a new federal regulatory regime, concerns related to these issues would remain unaddressed. The aquaculture industry may be put in the position of operating in a manner that is not in compliance with the Act. This, in turn, may undermine the long term viability of this industry in British Columbia.

Objectives

The Regulations, together with applicable provisions of existing federal regulations, will create a regulatory regime for aquaculture management in British Columbia. The objective of the 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 regulatory regime decreases 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 will be expected to contribute to improved public confidence in the sector.

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

Description

The Regulations are made pursuant to section 43 of the Act. They require that a licence be obtained in order to engage in aquaculture and outline a range of conditions that may be imposed as part of this process. The conditions 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;
  • Record keeping, notification and reporting; and
  • Measures to minimize the impact of organic and inorganic matter on fish and fish habitat.

Applicable provisions of the FGR, in combination with the Regulations will 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.

In addition to satisfying the BCSC decision, the Regulations provide flexibility for improvements to the previous aquaculture regulatory regime in British Columbia. The Regulations will 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 licensing regime. The consolidation will 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;
  • management of incidental catch, currently authorized under FGR and Pacific Fisheries Regulations (PFR); and
  • the management of substances such as fish feed, faeces, bloodwater, transport water, waste water from aquaculture facilities, etc.

While DFO originally intended to include provisions related to the deposit of deleterious substances in the Regulations, DFO has determined that risks associated with drugs, pesticides as well as their possible presence in feed, faeces, blood water and transport water could be better managed within a potential new national framework. To this end, DFO commenced additional policy research and consultations on separate regulatory and non-regulatory alternatives in August 2010.

Program policies and Integrated Management of Aquaculture Plans (IMAPs), will be modeled after the Integrated Fisheries Management Plans currently used by DFO in other fisheries. The IMAPs will be used to set detailed licence conditions and are considered key cornerstones in the implementation of the Regulations. The IMAPs will publicly document management objectives for each major sector (e.g. finfish, shellfish), and define specific operational directives and other matters as appropriate for the risk-based management of each sector. Most importantly, DFO will consider developing IMAPs at the area level of key species such as salmon. Further, to better assess cumulative impacts in areas where multiple risk characteristics need to be considered, DFO intends to consult on the development and maintenance of the IMAPs. IMAPs and operational directives will be consistent with national guidelines, respect other national and regional departmental priorities, and will 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. No mechanism, however, would exist to license sites or regulate other impacts and the aquaculture industry would not be able to operate in a sustainable manner without potentially contravening 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 B.C. provides an effective legal framework for continued management of the sector. The recommended federal regulatory regime strengthens 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 regulatory initiative maintains 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 regulatory regime will 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 young adults, women and First Nations. The regulatory regime will help maintain this important industry for the British Columbia and Canadian economy.

DFO will incur the cost to implement the regulatory regime. The funding requirements for federal programming associated with the 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 regime will result in a net incremental cost to taxpayers of $2.3–2.7M annually. These incremental costs relate to DFO’s stated objectives of increasing transparency of the regulatory regime through more regular and increased public reporting of regulatory performance information; increased management and synthesis of regulatory information; and increased enforcement presence.

The federal government, through the regulatory program, will expect to have the opportunity to collect revenue through various means such as regulatory fees. DFO will pursue such fees through a separate process laid out under the User Fee Act, and may amend these regulations in the future to reflect the outcome of this process.

Aquaculture is viewed by many First Nations as an important economic activity. First Nations communities will 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 will 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 under the regulatory regime will replace separate permits or authorizations for habitat, fish transfer permits, recapture permits, nuisance seals and incidental catch. This will reduce administrative burdens for industry. The regulatory regime will also bring increased certainty to industry regarding the legality of activities under the Act. Continuing to regulate the industry, and improving its regulation, will contribute to a stronger reputation in the marketplace.

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

Under the regulatory regime, DFO will license facilities and manage them in a manner which will 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 will be $2.3–2.7M annually, there will be several important qualitative benefits to aquaculture stakeholders. The industry in British Columbia will be able to continue operations, contributing to the British Columbia and Canadian economy, and will benefit from a reduction in regulatory burden. First Nations and the public (including ENGOs) will benefit by increased public reporting on performance, and through increased investment in compliance and enforcement. The aquaculture industry will continue to provide important economic activity in rural communities.

Rationale

In developing the 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 regulatory regime, DFO intends to respond to the need to provide a new legal framework for aquaculture in British Columbia that will

  • 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

Prior to pre-publication, stakeholders were invited to provide input that was taken into account during the development of the Regulations. Consultations 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, were used to collect and analyze feedback and were further supplemented by specific workshops for First Nations. In addition, a number of multi-stakeholder bilateral sessions were held. DFO also provided an online consultation tool where stakeholders were given the opportunity to comment and make submissions concerning the Regulations.

On July 10, 2010, the Regulations were pre-published in the Canada Gazette, Part I, for a 60-day public comment period. DFO received over 900 emails, letters and faxed responses. Comments and recommendations received assisted in the refinement of a number of provisions of the Regulations. DFO received a range of comments on both specific regulatory changes and matters to be addressed through potential changes to the Fisheries Act or through the policy development and implementation process. Overall, comments recognized the need for federal regulations of the aquaculture industry in British Columbia. Many, particularly from those in the licence-holder community, provided feedback focused on the anticipated details of licence conditions. Other comments were more general in nature, suggesting that the Regulations needed to be more prescriptive in nature and/or that open structure aquaculture should be banned.

DFO noted that most groups, including Environmental Non-governmental Organizations (ENGOs), found that the scope of the Regulations adequately encompassed the activities and environmental matters that needed to be managed. There were, however, concerns on the part of some ENGOs that DFO should have included prescriptive requirements pertaining to measures and thresholds for the management of sea lice, by-catch, predator control, containment, fish feed, by-catch, monitoring, record keeping and requirements for public reporting. DFO has determined that such specificity would be unnecessarily onerous and would be redundant under the regulatory regime, which allows for the inclusion of such requirements as conditions of licence. Furthermore, this approach promotes collaboration and efficacy since licence holders, First Nations and other stakeholders will be engaged in the development and continued refinement of program policies over time.

It was recommended that DFO develop performance-based indicators in the form of ecological thresholds in order to mitigate potential effects on fish habitat. Without further changes to the Regulations, ecological thresholds can and will be explicitly stated in the regulatory regime within the context of a coordinated area management approach. The Regulations require compliance with licence conditions that may be province wide, area-based and/or site-specific measures as appropriate, in a wide range of listed areas. Detailed thresholds and critical parameters could, therefore, be identified in policy, directives, IMAPs and conditions of licence. Previous experience has shown that IMAPs are most effective when they incorporate advice from stakeholders on a regional basis. Therefore, regional and site-specific issues such as this one can be better addressed though flexible and innovative IMAP advisory committees and review processes rather than through a prolonged and complex regulatory amendment process. A number of comments argued that the Regulations should include specific provisions to manage cumulative effects of multiple farms within a region on an ongoing basis. The Regulations as drafted at pre-publication included measures that would support setting of conditions of licence in this area.

Some First Nations suggested that they had not been adequately consulted during the development of the Regulations. Coastal First Nations requested to be treated as a party with a legal interest in the resources rather than a stakeholder through the explicit recognition of aboriginal rights in the Regulations. DFO’s consultation process has been consistent with the Government of Canada’s policy in this area as outlined in “Aboriginal Consultation and Accommodation: Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult (February 2008).” Section 35 of the Constitution Act, 1982, recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada and it is not necessary to repeat that recognition or the constitutional protection provided by section 35 in the Regulations.

Some First Nations expressed the view that that the Regulations should integrate local and traditional knowledge into area-based management and the science of ecosystem health. Further, Coastal First Nations feel they should have a meaningful role in the development and implementation of IMAPs. DFO will contact First Nations, licence-holders and other stakeholders to seek their input on the development of IMAPs. As with Integrated Fisheries Management Plans, DFO’s Pacific Region is considering the creation of Advisory Committees in early 2011, which would include First Nations representation. Consultations through IMAP advisory bodies will be supplemented through other forums such as the First Nations Fisheries Council and the Aboriginal Aquaculture Association as well as bilateral engagement with interested First Nations.

DFO’s intent in proposing provisions specific to deleterious substances through pre-publication was primarily focused on managing risks associated with substances introduced through medication in feed (e.g. medicated feed and residual medication in faeces, bloodwater and transport water) and substances regulated for pathogens and pests (e.g. anti-foulants, disinfectants). Based on the comments received, sections 6–8 as proposed in pre-publication were removed from the Regulations. Such substances will be managed through licence conditions under section 4 of the Regulations to ensure that fish and fish habitat are adequately protected.

Further consultation on deleterious substances is required before additional regulatory requirements can be introduced. DFO intends to develop a risk-based national framework for aquaculture drugs and pesticides. This strategy would ensure harmonization of authorizations that exist across the country at both the federal and provincial levels. Preliminary policy consultations and development of this approach are ongoing.

Comments received included recommendations for the addition of provisions requiring that aquaculture operators submit bi-weekly reports of sea lice levels on a farm-by-farm basis to DFO. It was argued that all fish farms must be required to monitor and report salmon farm sea lice counts, disease outbreaks requiring treatment or culling, and the use of antibiotics or sea lice treatments. In the view of DFO, the health of fish and fish habitat can be monitored without these suggested changes to the Regulations. Through the IMAP consultative process, conditions of licence will be developed to ensure that all facilities develop and maintain detailed Fish Health Management Plans and Sea Lice Management Plans. Such plans would be mandatory and would contain procedures and reporting protocols in order to ensure fish and fish habitat are being protected from sea lice outbreaks.

Several comments proposed that the Regulations should include broad powers to strengthen compliance and enforcement measures up to and including licence cancellation. The Act and the FGR currently provide robust enforcement powers which provide for licence cancellation by the Courts. Other measures with respect to Inspection provisions and strengthened enforcement measures would require amendments to the Act and/or the FGR. Such significant legislative changes would affect the fisheries community across Canada and are outside the scope of the Regulations.

A number of comments called for new regulatory and non-regulatory (for example, support for research and development) tools to shift aquaculture operations to closed containment with the goal of removing open net-pens from the coastal environment. DFO supports innovation and the assessment of the feasibility of new technologies; however, DFO’s strategic environmental assessment and numerous environmental assessments under Canadian Environmental Assessment Act have identified that, when appropriately managed, open net-pens culture is sustainable.

Some shellfish growers in British Columbia focused on operational issues related to the requirements of the Management of Contaminated Fisheries Regulations. While it is recognized that these are important issues that should be addressed by DFO, they fall outside the scope of the Regulations.

Overall, comments signalled significant interest in seeing the policy documents that would provide details on how the Regulations would be implemented. DFO anticipates that an interim set of policies and procedure will be in place before licences are issued, and will review their effectiveness through a transparent consultative process on an ongoing basis.

Implementation, enforcement and service standards

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

• An Aquaculture Program Management element that will 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, etc.);
  • 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, etc);

• An Information Management System element that will establish and maintain the systems to collect and manage the licensing of aquaculture operations, regulatory management of the sector, decision-making, and public reporting;

• A Regulatory Operations element that will 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 will 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 will be developed. Compliance will 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 will 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 define new roles and responsibilities of each party in light of the Court decision, including that

  • the province of British Columbia will 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;
  • the federal government will 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 (DFO in consultation with Environment Canada); 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 will also lay out how 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 information sharing.

Performance measurement and evaluation plan

The Regulations will reside under the Program Activity of Fisheries and Aquaculture Management (sub-program activity aquaculture), and will 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 for the British Columbia Aquaculture Regulatory Program. The Performance Measurement 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, 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 the highest risks in a 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 regulatory 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.

Contact

Trevor Swerdfager
Director General
Aquaculture Management Directorate
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: 613-949-4919
Email: Trevor.Swerdfager@dfo-mpo.gc.ca

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