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CRITICAL ANALYSIS OF THE SALMON AQUACULTURE REVIEW (including the transcribed proceedings of a public forum held at UVic) [note from the AEC] [Only the title page, preface and the executive summary are included here, The AEC has a hard copy of the full report less the proceedings of the public forum. The AEC will email, as an attachment, the complete report on request (include the desired format). The Environmental Law Centre can be contacted directly with the address below] An Interim Report by The Environmental Law Centre (A Society of University of Victoria Law Students) 29 January 1998PREFACE
The Environmental Law Centre ("ELC") is a student run, non-profit organization dedicated to research and education on environmental law issues from a public interest perspective. Education, outreach, networking, and research programmes provide students with hands on experience and opportunities working in environmental law. The ELC draws its student-body primarily from the University of Victoria law school, but is open to any student with an interest in environmental law. This interim-report represents the ELC’s endeavor to critically evaluate the Salmon Aquaculture Review. The report was written by seven, second-year University of Victoria law students. All seven students participated in the research and writing of this report, solely on a volunteer basis. The major findings of the report were presented in a public forum held at the University of Victoria on January 29, 1998. The transcript for the public forum is appended to this printing of the report. The ELC gratefully acknowledges the financial support of the David Suzuki Foundation.
The authors express their sincere gratitude to the following individuals for the
assistance and advice they provided: Jim Fulton, Ann Rowan and Nick Scapillati of the
David Suzuki Foundation; Karen Wristen of Sierra Legal Defence Fund; ELC
Executive-Directors Wally Braul and Chris Tollefson; Pat Hutchins and Albert Peeling; and
fellow students Peter Macpherson and Ian Webb. Lynn Hunter and Aaron Welch are also
thanked for their valuable contributions to planning the public forum. Of course,
responsibility for this report rests solely and exclusively with its authors. The Environmental Law Centre The University of Victoria Tel: (250) 721-8188 EXECUTIVE SUMMARY Waste Discharges Open net-cage salmon farming allows for the direct discharge of wastes into the surrounding marine environment. The primary waste sources include uneaten feed, fish wastes (faeces or inorganic urea and ammonia), anti-foulants, pesticides, morts, human sewage, and other solid wastes such as empty feed bags, ropes and floats. The total quantity of waste produced by all salmon netcage operation in British Columbia is approximately equivalent to the human sewage produced by a city of 500,000 people. Unfortunately, the EAO’s final recommendations do not employ the precautionary
principle in any meaningful sense. It is clear that key information is lacking regarding
two critical impacts associated with wastes, carbon loading and phytoplankton blooms.
These information gaps prevented TAT from quantifying the magnitude of risk, which salmon
farming represents to local ecosystems. The EAO recommends further study and research
which, aside from being costly and slow to produce answers, cannot substitute for
information that must be known now. Fallowing is mentioned as an option, but is not
recommended as a mandatory and enforceable operational practice. Moreover, fallowing is
treated as a remedial action to be implemented only when certain standards are breached,
rather than as a preventative measure which would involve routine fallowing.
Closed-containment, the necessary basis of any truly precautionary approach, is derogated
to pilot project status with no firm commitment to implementation. Lastly, a comprehensive
monitoring system with independant oversight and publicly accessible results is not
included in the EAO’s recommendations. Siting of Salmon Farms The siting of salmon farms is directly related to the types of impacts and the magnitude of impacts the farms will have. Some serious limitations of the existing tenure approval process are that the existing process is not consistent with the precautionary principle, and does not provide local governments, First Nations and the public with a strong enough voice in siting decisions. Both the TAT report on siting and the final report from SAR recognizes these problems with the existing process. However on closer analysis SAR’s recommendations are not adequate to remedy them. Given the current lack of comprehensive information on which to base siting decisions, the precautionary approach would suggest that the moratorium on new tenures continue pending the development of integrated coastal zone planning, scientifically based siting criteria, and comprehensive resource inventories. Instead the EAO recommends a fast track, interim planning process using essentially the same criteria as were applied prior to the moratorium. Five conclusions are drawn from this review of the SAR’s treatment of the siting
issue: (1) Consistent with the precautionary principle, the moratorium on new tenures
should continue pending comprehensive coastal zone planning. (2) The Province should
develop siting criteria which are scientifically based and provide minimum distances to
promote clarity, consistency, and the precautionary approach in the application of the
criteria. (3) Consistent with the user pay principle, the cost of gathering the required
information to study comprehensively the appropriateness of each proposed open net pen
site should be born by the proponent; however, the Province should consider seriously
whether policies promoting investments in closed circulation technology might be more
worthwhile. (4) The approval of any First Nation directly affected by a proposed site
should be required for approval of the tenure. (5) The approval of local government should
also be required before tenures are issued, and serious consideration should be given to
reversing the restrictions placed on local governments’ zoning authority by the new Farm
Practices Protection (Right to Farm) Act and its attendant amendments to the Municipal
Act. Escaped Farm Salmon Escaped salmon is one of the most visible, and potentially devastating problems with the aquaculture industry in British Columbia. Both farmed Atlantic and Pacific pose risks to wild salmon when they escape from netpens. Overall, the basic concerns stem from escaped salmon's potential impacts on the wild stocks of B.C. salmon. The wild salmon fishery is already in decline and reduced genetic fitness, spread of disease, increased competition, and spawning site disruption are dangers inherent when farmed salmon are escaping into the wild. The Salmon Aquaculture Review, while realizing the scope of the problem, has failed to
adequately address these risk. Their conclusions are based on inconclusive science which
only addresses the dangers at current escape levels. By ignoring the lack of
certainty in the science and using it as a guide when the large expansion of the
aquaculture industry is a virtual certainty, the EAO has disregarded the precautionary
principle and put the future of British Columbia's wild salmon stocks at risk. Farm and Wild Fish Health The TAT report espouses a "proactive policy of disease prevention". A reduction in risk is not a solution that can adequately protect wild fish populations and protect the marine ecosystem. The precautionary approach is not satisfied by the TAT or SAR recommendations. Problems regarding scientific uncertainty can not be solved just by writing more legislation. The SAR report is curious in that it is a product of the Environmental Assessment Office, yet it really doesn’t seem to focus on the environment and avoids considering alternatives to the open netcage operations. Wild salmon, the marine ecosystem and even human health are all at stake in the issue of aquaculture operations. No recommendation, nor any regulation, can offer protection against diseases
transmitted within a fish egg, as so many are. Research into fish disease is in its
infancy and drugs effective to control diseases are in short supply. Strains of disease
already resistant to two and three antibiotics are known to occur in B.C. fish
populations. Therefore, only a strict prohibition on egg and live fish imports can be
considered precautionary. Interactions with Coastal Mammals and Other Species Current salmon farm operational practices pose undesirable impacts and threats to marine mammals and other wildlife. The extent of the impacts and threat to local populations of marine mammals and other wildlife is largely unknown. The existing regulatory scheme is ineffective at protecting marine mammals and other wildlife from being killed, and preventing loss of habitat due to salmon farming operations. Wildlife is being killed because there are not adequate physical barriers to stop predation from occuring in the first place. The deficiency in the existing regulatory scheme is due to the lack of regulations with respect to the standards of operation and technologies required to prevent interactions between farmed salmon and local species. SAR recommends implementing a system that regulates the standards of operation and technologies through the aquaculture operating licence on a site specific basis. SAR does not recommend general regulations to implement current proven predator prevention technologies, such as predator net systems, on an industry wide basis. To be effective, the proposed regulatory system must be monitored and enforced through site specific requirements in combination with general regulations. Research will have to be undertaken to establish acceptable standards of operation and technologies, along with establishing the effects of these ‘practices’ on local species. SAR does not adequately address the issue of how to monitor and enforce the proposed regulatory scheme. Notwithstanding the above gaps in SAR recommendations, both government and industry
would be required to invest large amounts of capital and labour to effectively implement
the recommendations. Perhaps the possible costs of implementing the SAR recommendations,
and ensuring compliance with them are sufficient justification for the government to
require industry to move towards closed containment marine systems. A closed containment
system would virtually eliminate interactions between farmed salmon and local species. First Nations And the Salmon Aquaculture Review In addition to the serious ecological concerns raised by salmon farming, the recent need for a Salmon Aquaculture Review (SAR) can also be traced to development of the law protecting aboriginal rights to traditional fisheries. There is now a real concern that many of the existing salmon aquaculture tenures are infringing on such aboriginal rights enshrined in s.35(1) of Constitution Act, 1982. In this context, affected First Nations have been active in making their voices heard during the SAR, though their participation did not include involvement in decision-making about recommendations. The ecological concerns expressed during the SAR by non-aboriginal groups echoed the submissions made by Kwakiutl, Nuu-chah-nulth and other aboriginal groups. These First Nations also passionately voiced their unique and serious vulnerability to the risks associated with salmon farming which operates exclusively within their territories. Deprivation of a safe, traditional wild food diet, still clearly available to most coastal peoples until very recently, is considered a serious threat to the health and cultures of aboriginal people and communities. Affected First Nations thus collectively supported the continuation of the provincial moratorium on the salmon aquaculture industry until their concerns are satisfactorily addressed. Although the Environmental Assessment Office made many recommendations on the issues of concern to First Nations the standards, specificity and breadth of the recommendations are inadequate to ensure these concerns are met. Last month’s Supreme Court of Canada decision in Delgamuukw v. British Columbia
has profoundly advanced the law of aboriginal title and rights since the SAR’s
completion. It will apply to salmon aquaculture tenures (and licenses) so far as the
sites, previously thought to be on provincial Crown lands, are subject to claims of
aboriginal title and rights. Development of the aquaculture industry in such areas will
always require First Nation consultation, may require First Nation consent, and will
likely require compensation to First Nations. Where future negotiations over these issues
and the protection of aboriginal fisheries proves unsatisfactory to First Nations, legal
recourse may include actions seeking a declaration of aboriginal rights (which would
likely involve injunctions), judicial review of government approvals and even the common
law torts of negligence, nuisance and trespass to lands. The Environmental Law Centre The University of Victoria Tel: (250) 721-8188 |
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