What we heard report: Proposed federal Aquaculture Act - 2020 general engagement

On this page:

• Legislative context
• Creation of an Aquaculture Act
• Aquaculture regulation in Canada
• Process
• Who we heard from
• What we heard
• Theme 1: Application, purposes and definitions
• Theme 2: Leases, licences and fees
• Theme 3: Indigenous reconciliation
• Theme 4: Cooperation
• Theme 5: Environmental protection
• Theme 6: Enforcement and alternative compliance measures
• Theme 7: Regulations
• Theme 8: Public reporting and legislative review
• Additional topics
• Conclusion and next steps

Legislative context

Creation of an Aquaculture Act

In 2016, the Standing Senate Committee on Fisheries and Oceans tabled a report, An Ocean of Opportunities: Aquaculture in Canada. The report called for a unified legislative framework to make the aquaculture industry in Canada more globally competitive. The February 2017 report of the Advisory Council on Economic Growth also highlighted the need for legislative reform. As a result, the Government of Canada committed to exploring the development of federal aquaculture legislation.

At the December 2018 meeting of Canadian Council of Fisheries and Aquaculture Ministers, federal, provincial and territorial ministers confirmed support for a federal Aquaculture Act of "limited scope that respects federal, provincial and territorial jurisdictions, and provides greater clarity to the sector." Building on the 2018 Canadian Council of Fisheries and Aquaculture agreement, the 2019 mandate letter from the Prime Minister to the Minister of Fisheries, Oceans and the Canadian Coast Guard asks the Minister to "begin work to introduce Canada's first-ever Aquaculture Act."

Based on recommendations from the Standing Senate Committee on Fisheries and Oceans and the Canadian Council of Fisheries and Aquaculture Ministers, work is underway to develop a federal Aquaculture Act that:

• respects federal, provincial and territorial jurisdictions
• fosters national consistency
• improves clarity for the sector
• enables the sustainable management of aquaculture
• helps sustainably grow the industry for the benefit of Indigenous and rural communities

This report provides a summary of what the department heard during a national engagement process with provinces/territories, industry, environmental non-governmental organizations, academia, the general public and other partners between August 2020 and February 2021. Some comments were also received from Indigenous groups, which are included in this report; however, engagement with Indigenous peoples is ongoing and a separate what we heard report will be published following the completion of that process.

Fisheries and Oceans Canada (DFO) led preliminary engagement to identify priority issues in 2017 to 2018 and also held a series of in-person and online consultations throughout the spring and fall of 2019 (a summary of the 2019 engagements is available).

Aquaculture regulation in Canada

In Canada, aquaculture has been regulated since the 1980s through existing federal-provincial/territorial legislation and regulations that apply to specific aquaculture activities. Over time, incremental changes to these multiple laws, regulations and associated policies have created a complicated regulatory system with different requirements across the country.

There are currently 3 distinct regulatory approaches to aquaculture across Canada. In British Columbia, DFO issues aquaculture licences under the Fisheries Act's Pacific Aquaculture Regulations and is directly responsible for environmental regulation of the sector. The province is responsible for land management and issues leases to grant exclusive use of submerged provincial land for the purpose of culturing aquatic organisms.

In Prince Edward Island, DFO issues aquaculture leases (with conditions on the lease agreements) to help ensure appropriate environmental performance of the sector through cooperative action with the province.

Elsewhere in Canada, provincial and territorial governments are the lead regulators on aquaculture-related matters within their provincial jurisdiction, including the issuance of licences and leases. Federally, DFO is the lead regulator and is responsible for environmental regulation of the sector. Provincial and territorial authorities license aquaculture production operations (that is, all activities related to the growing of finfish and shellfish), and authorize the allocation of space to carry out aquaculture operations. Many provincial/territorial jurisdictions also regulate for:

• potential environmental impacts
• animal welfare
• fish health, and/or
• pest control product sale and use

Overlaying these 3 approaches, the federal government plays a national, cross-cutting coordination role in aquaculture governance.

Process

Although the feedback received during the 2019 engagement was diverse, one common theme was the need for more substantive engagement based on specific elements that could be included in the proposed legislation. As a result, DFO developed a discussion paper that provided background on aquaculture in Canada, the rationale for the proposed Aquaculture Act, and key questions the department sought feedback on to further refine the proposed legislation.

Given the challenges posed by COVID-19, DFO had to modify its approach to engaging with key partners and stakeholders. Following national public health guidelines, all engagement sessions were held virtually and the discussion paper was posted online for an extended period to allow for meaningful participation from all interested parties.

The discussion paper was made available online for comment on August 17, 2020, and written submissions were welcomed until February 12, 2021. The discussion paper also served as a basis for discussion during the various engagement sessions that were held through the fall and winter of 2020.

Who we heard from

DFO held 27 virtual engagement sessions with over 360 participants from September 2020 to February 2021 (Figure 1), including:

• provinces and territories
• industry
• environmental non-governmental organizations
• academia
• the general public
• and other federal departments

Text version:

• 6 national-level sessions
• 6 sessions conducted in the Pacific Region
• 7 sessions conducted in the Ontario and Prairie Region
• 4 sessions conducted in the Quebec Region
• 4 sessions conducted in the Atlantic

In addition, a total of 66 submissions were received in response from various stakeholders and partners (Figure 2) in response to the online discussion paper, as well as 12,000 e-mails received through an e-mail campaign.

Note: Some comments were received from Indigenous groups in response to the discussion paper by the February 12, 2021 deadline. Nevertheless, a separate process to engage Indigenous partners was developed and is expected to run throughout 2022. A dedicated "What We Heard" report will be published following the completion of that process.

Text version:

Submissions received in response to the discussion

Submission source	Total	%
Individual	17	26
Industry	14	21
Environmental Non-Governmental Organization	8	12
Academic	8	12
Indigenous Groups	8	12
Provincial/Territorial Government	4	6
Animal Protection Organization	2	3
Municipal Government	2	3
Animal Health Products Organization	1	1
Member of Parliament	1	2
Other Federal Government Department	1	2

What we heard

During the engagement process, DFO received input through sessions and written submissions on a wide-range of issues. For the purpose of this report, we will categorize input by the broad themes/elements outlined in the discussion paper. While some comments received fall outside of the limited scope of the proposed Aquaculture Act, they will be considered as part of future legislative and regulatory work, as appropriate. Comments received that do not fall within DFO's mandate will be shared with the appropriate federal partners for their consideration.

Theme 1: Application, purposes and definitions

Throughout the engagement, it was suggested that the preamble of the proposed Aquaculture Act outline guiding principles for the legislation. This could include:

• acknowledging aquaculture as a legitimate user of the marine environment
• referencing Canada's international commitments
• clarifying the roles and responsibilities in administering the new act
• referencing both the precautionary principle as well as performance-based approaches to regulating the sector

Additional guiding principles suggested by participants include:

• protection of the marine environment and conservation and preservation of fish and fish habitat
• minimum regulatory guidance that could be followed by all jurisdictions
• address issues around ownership of aquatic organisms
• promote reconciliation with Indigenous communities
• distinguish between the various forms of aquaculture, including land-based and multi-trophic
• acknowledge new and emerging technologies in the sector

On application of the proposed Aquaculture Act, many participants sought clarification on whether the act would distinguish between, and apply differently for, various forms of aquaculture, including land-based, multi-trophic, freshwater and marine. Participants also requested clarification on how the act could apply to current and future operations. For example, would existing operations be grandfathered into the new legislative framework.

Some participants raised that the purpose of the act should not include references to the promotion or development of the aquaculture sector, while others suggested it is an opportunity to define aspirational or visionary goals for the development of the industry. The comments specifically mentioned the potential for tension if DFO were perceived to be both the regulator as well as the promoter of the industry.

On the definition of aquaculture, many comments supported use of the United Nations Food and Agriculture Organization (FAO) definition, as it defines aquaculture as a farming activity:

"(…) the farming of aquatic organisms, including fish, molluscs, crustaceans and aquatic plants. Farming implies some form of intervention in the rearing process to enhance production, such as regular stocking, feeding, protection from predators, etc. Farming also implies individual or corporate ownership of the stock being cultivated. For statistical purposes, aquatic organisms which are harvested by an individual or corporate body which has owned them throughout their rearing period contribute to aquaculture, while aquatic organisms which are exploitable by the public as a common property resources, with or without appropriate licences, are the harvest of fisheries." (1988)

References were also made to the definition included in the National Aquaculture Act in the United States, which defines aquaculture as "the propagation and rearing of aquatic species in controlled or selected environments."

Some participants stressed that the definition of aquaculture should include aquatic plants, shellfish and other invertebrates. Participants also suggested that the department include definitions for the following terms:

• sustainable
• acceptable impact
• deleterious harm
• area-based management
• cumulative effects
• precautionary approach

Theme 2: Leases, licences and fees

Some comments received touched on aspects of the leasing and licensing process that should be defined or clarified in the proposed Aquaculture Act. Many participants sought clarification on how this element would apply in provinces and territories that regulate and administer leases/licences in their own legislation. As clarified during the engagement sessions, the proposed Aquaculture Act would be based on the existing licensing regime under the Fisheries Act, and the legislation's scope will not encroach on provincial and territorial jurisdiction.

Participants noted that the act should clearly define under what conditions or considerations the minister would consider revoking federal leases or licences. In addition, it was suggested that consideration should be given to:

• limiting the ability to revoke federal leases or licences where animals are still present, or
• include provisions for immediate action to manage stock, as it could result in animal welfare issues

Some participants suggested that the proposed Aquaculture Act define service standards across federal, provincial and territorial governments for the processing of lease and licence applications. Participants noted this could increase participation in the sector, particularly from Indigenous communities.

Additional comments on leases and licences included:

• in areas of federal jurisdiction, licences should be issued for a term of not less than 6 years (for example, in order to allow more than one grow cycle)
• define where aquaculture can operate in areas where federal leases can be issued
• require licence holders to implement contingency plans to recapture escaped salmon
• establish a restoration bond in support of environmental conservation efforts
• require industry to consult with Indigenous groups that may be impacted when planning to apply for a lease and licence for an aquaculture site
• define the process for evaluating impacts of discharge of effluent from land-based aquaculture facilities, including what types of discharge are acceptable

Theme 3: Indigenous reconciliation

At the time of publication of this report, engagement with Indigenous partners was ongoing. Input provided for this section is preliminary and was collected via a general engagement process. A separate report will be published following the conclusion of this dedicated process and will include a complete summary of comments received.

Throughout the general engagement process, participants expressed that the proposed Aquaculture Act should be consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and support free, prior and informed consent in the development of aquaculture operations. Many participants also noted that meaningful engagement with Indigenous peoples was an important element for the successful development of the legislation.

Some participants raised that the proposed Aquaculture Act must consider new ways to involve Indigenous communities and assist them to build capacity with an aim to collaboratively manage the sector. Furthermore, participants suggested acknowledging Indigenous peoples as environmental stewards and as primary deciders of ecological and cultural parameters of aquaculture facilities within their territory. Some called for area-based management approaches as one way to increase involvement of Indigenous communities in aquaculture governance.

The following points were also raised:

• including Indigenous knowledge and Indigenous knowledge systems in support of sound evidence-based decision-making
• recognition of Indigenous aquaculture operators' band licences within their territory in lieu of licences issued by the lead regulator (province/territory)
• the act should respect existing agreements between Indigenous peoples and the Government of Canada

Theme 4: Cooperation

Many comments received throughout the engagement process sought clarity on how federal, provincial, territorial, Indigenous and local governments would cooperate under the proposed Aquaculture Act. The following points were raised for consideration to help address the complex legislative and regulatory framework that governs the sector:

• overlaps and duplications in roles and responsibilities should be addressed and coordinated amongst federal departments and provinces/territories
• further clarification should be provided to define where the federal role ends and provincial authority begins, enabling the negotiation of formal agreements where required
• decision-making processes that meaningfully engage industry, Indigenous and coastal communities and other parties should be clearly defined, particularly with respect to area-based management
• local governments should play an active role in decision-making and governance of the sector
• consider the creation of an oversight body or working group amongst all interested parties to promote cooperation and collaboration

Theme 5: Environmental protection

Environmental protection and the sustainable management of the sector was raised in nearly all virtual engagement sessions and written submissions. The need to ensure that environmental protections are both sufficient and abided by was raised by all partners and stakeholders alike.

Some participants raised that the proposed Aquaculture Act should primarily focus on supporting the Fisheries Act in protecting marine biodiversity and should not conflict with existing provincial environmental protections. More specifically, participants commented that the proposed act should authorize the minister to:

• amend conditions of licence to prohibit against equipment and practices that would harm, alter, disturb or destroy fish habitat
• include animal welfare standards similar to those applied to all terrestrial farmed animals
• address genetic interactions between farmed and wild salmon
• provide that it is a regulatory offence for a licensed aquaculture operator to cause irreparable harm to aquatic organisms
• require the removal of net-pens from coastal areas and provide support to transition marine operations onto land
• require that a licensed aquaculture farm operator must notify an inspector of an occurrence at an aquaculture site that poses a risk to aquatic organisms or their habitat within a specified period of time
• include similar environmental protections as in the Fisheries Act, at a minimum, if aquaculture were excluded from the Fisheries Act in an effort to avoid duplication

It was raised that the proposed act should reflect recent recommendations and reports regarding best practices for sustainably managing the sector. This could include assessments on water quality, phosphorus loads, aquatic biota and fish escapes and their potential impact on the marine environment. Participants noted that decisions should be science- and evidence-based, including risk assessments following identified cases of escapes.

Some participants suggested that environmental impact assessments should be conducted prior to the approval of aquaculture operations and should actively engage local communities and governments. In particular, it was raised that the following categories of aquaculture-specific environmental impacts be considered in the assessment:

• effluent
• farm siting
• chemical use
• feed
• escapes
• tracking interactions
• source of stock
• wildlife mortalities
• shipment considerations

Some participants also raised that although the environmental protection of fish and fish habitat is very important, the act should provide that it is not a contravention if harm occurs as a result of an activity that is authorized or permissible.

Theme 6: Enforcement and alternative compliance measures

Many participants expressed widespread support for the inclusion of enforcement measures that addressed non-compliance to the proposed Aquaculture Act and associated aquaculture regulations. It was raised that the framework should include modern and flexible enforcement provisions that adequately address all potential infractions.

It was also frequently raised that enforcement mechanisms should recognize and align with all provincial measures already in place to avoid duplication and redundancies.

Additional suggestions and comments:

• enable authorities for seizure and civil forfeiture of assets in the event of egregious non-compliance situations
• allow for licence sanctions, such as temporarily suspending a licence, cancelling a licence or varying a licence to provide the fullest range of enforcement tools possible
• equip enforcement officers with a variety of tools (for example, fines, administrative monetary penalty system, prosecution, etc.) to address breaches of the proposed act, including additional funding as required to address gaps in capacity
• incorporate educational components to the enforcement framework as part of a pro-active measure
• consider offences for any person who interferes with an aquaculture facility or its operation in a way that compromises its biosecurity, such as trespassing

Theme 7: Regulations

Comments from participants were limited with respect to the regulation-making provisions that could be included in the proposed Aquaculture Act. During the virtual engagement sessions, some questions were raised with respect to the consolidation of all aquaculture-related regulations under the proposed act. More information on ongoing efforts to improve and consolidate existing aquaculture-related regulatory provisions under the Fisheries Act are available in DFO's General Aquaculture Regulations in the Forward Regulatory Plan (2021 to 2023)

Participants raised the following comments:

• enable the incorporation by reference of material produced by a person or body other than the minister, including by a government, a government agency or an international body
• distinguish between marine and freshwater aquaculture in future regulations
• develop all regulations with active participation of Indigenous groups
• in British Columbia, include the existing conditions of licence for cultured bivalve shellfish as part of future regulations under the proposed Aquaculture Act
• address the process for determining what the permitting criteria should be for ocean discharges of effluent from land-based aquaculture facilities
• address the process for issuing aquaculture licences to land-based aquaculture facilities with a clear and specified approval timeline

Theme 8: Public reporting and legislative review

Participants were generally supportive of the establishment of a public registry. It was raised that the public should be able to easily access as much information as possible about aquaculture facilities and include:

• reporting on mass mortality events
• information about feed composition
• peer-reviewed science relevant to aquaculture
• escapes
• violations of the act with what enforcement measures were undertaken

It was suggested that Norway's BarentsWatch could be used as an example on how to publicly report on aquaculture operations.

Given the jurisdictional complexity of the regulatory framework, it was raised that the proposed act should clarify how public reporting requirements would apply in jurisdictions where DFO is not the lead regulator.

Participants were also supportive of a future legislative review 5 to 10 years after the passing of the bill.

Additional topics

Participants were encouraged to share additional topics that could be included as part of the proposed Aquaculture Act. The following items were listed in response to this section of the discussion paper:

• stipulate that occupational safety laws must be applied and enforced in all aquaculture facilities
• include labelling standards that outline area of origin, where the animal was processed, whether production is wild-caught or farmed, and if farmed, which type of facility it came from (for example, net-pen, land-based, etc.)
• support for the creation of an agency or identification of a champion that has an economic mandate to support the growth of the aquaculture industry or include a growth vision for the industry in the act
• establish national standards to ensure consistency across the country with respect to best practices for regulating the industry
• integrate the government's commitment to establish a plan to transition open net-pen aquaculture out of British Columbia's coastal waters by 2025
• recommend that aquaculture facilities be built to withstand unpredictable weather due to climate change and enhanced storm impacts
• require extensive engagement on all forward-looking regulatory initiatives, including off-shore aquaculture

Conclusion and next steps

The department thanks all partners and stakeholders for participating in this latest round of engagement as well as the preliminary engagement sessions held from 2017 to 2019. DFO is committed to working with its partners and stakeholders to support the development of a federal Aquaculture Act and will analyze and consider all input received during the next stage of policy and legislative development.

At the time of publication of this report, engagement with Indigenous communities and organizations is ongoing. A separate report will be published following the conclusion of this dedicated process and will include a complete summary of comments received.

Upon the completion of all engagement, DFO will work to draft Canada's first-ever Aquaculture Act, to be tabled in parliament in the future. For additional updates, visit the federal Aquaculture Act web page where additional updates and timelines will be provided as the legislative project progresses.