The regulatory review of the aquaculture sector in Nova Scotia was initiated in light of growing conflict among sectors of the industry, regulators, existing users of coastal resources, environmental organizations and coastal communities. At the heart of the conflict were commercial scale marine-based finfish operations. These operations were seen by some as critical to rural development, while others viewed them as a threat to existing industries such as fishing and tourism, the natural environment, and their way of life. The existing regulatory process offered limited transparency, and few legislative requirements to ensure the protection of the local environment from fecal matter, nutrient loading, escapes, anti-fouling agents, medication, and pest control products.

It was in this context that in May, 2013, the province of NS set up an independent Panel to carry out a regulatory review of aquaculture. The Panel was asked to design a state of the art provincial regulatory framework for the aquaculture industry in NS. The review was mandated to include fin-fish, shell-fish, and plant-based aquaculture. While the focus was clearly on marine-based operations, the review was to include land-based operations as well. The Panel was asked to propose a new state of the art regulatory system that would best serve the long-term best interest of the province. The Panel’s mandate included the full range of social, environmental and economic considerations, guided by the priorities and principles of the Environmental Goals and Sustainable Prosperity Act (EGSPA). At the heart of the Act is the integration of environmental protection and economic prosperity.

The Panel engaged in an 18 months long process to carry out its mandate. It set up an Advisory Committee of seven individuals representing aboriginal communities, municipalities, coastal communities, the fishing industry, the aquaculture industry, salmon anglers, and environmental organizations. The committee met monthly to advise the Panel throughout the review process. The panel held 42 community meetings early in its mandate to understand the views and concerns of all interested parties. This was followed with over 20 individual stakeholder meetings, numerous written submissions, a 20 person round table process to try to resolve differences among the major stakeholders and a series of science and knowledge workshops to clarify the state of knowledge on key issues. The panel released a draft report in July, 2014. The Panel received feedback on its draft report through 4 public meetings and numerous written submissions between July and September. It submitted its final report in December, 2014.

The final report recommends a comprehensive overhaul of the regulatory system. The overall goal of the regulatory approach is framed as low impact, high value aquaculture. The Panel identifies a number of guiding principles for the design of the regulatory system to enable the pursuit of high value, low impact aquaculture. The principles include effectiveness, openness, transparency, accountability, proportionality, integration, and precaution.

This set of principles are supplemented with a number of regulatory goals. Among these goals are the protection of the environment, sustainable use of the public resources it contains, and the fair allocation of the use of these resources. Key among the public resources are wild salmon, other aquatic species and the broader coastal ecosystem. Compatibility with other uses, such as fisheries and tourism, is also identified as a regulatory goal. The regulatory system should ensure that the benefits to the province are proportional to the resources used and affected by the industry. The regulatory system should be attentive to community needs and ensure meaningful public engagement. Finally, it should support the sustainable growth of the industry, and be enforceable, affordable, efficient and effective.

In order to be able to achieve these regulatory goals, a number of elements and conditions beyond the regulatory design were found by the Panel to be essential. Attitudes among regulators, proponents and community members have to become more constructive than was the case at the time of the regulatory review. The regulations have to serve to enhance the social licence of the industry. Discretion have to be more limited than in the existing regulatory system. Regulatory capacity within the government has to be enhanced. Compatibility with other users of coastal waters has to be a key consideration in the regulatory system. The panel identified a need for research to fill important knowledge gaps, such as with respect to the impact of aquaculture operations on lobster. Finally, continuing commitment to the goal of low impact high value aquaculture was identified as critical to the success of the new regulatory system.

The report identifies the absence of integrated coastal planning and management as a challenge for the design and implementation of an effective regulatory system for aquaculture. In particular, the Panel emphasizes the challenge of giving due consideration to community priorities and existing and potential future uses of coastal waters in the absence of an integrated planning and management process. The report deals with this limitation by proposing a process for zoning areas of potential interest for aquaculture that takes into account community priorities and potential use conflicts. Specifically, the Panel recommends the development of red, yellow and green zones for marine based fin-fish operations based on their suitability for fin-fish aquaculture based on clearly established criteria. Included in the development of these red, yellow and green zones would be the biophysical suitability of the area as well as its potential for use conflict. The resulting regulatory process, the likelihood of approval, and the terms and conditions for approved sites would differ depending on whether the proposed site is in a red, yellow or green zone.

A copy of the report is available for downloading at: http://ssrn.com/abstract=2463759

Meinhard Doelle,

Director, Marine & Environmental Law Institute