1. INTRODUCTION

Nova Scotia is a small province on the East Coast of Canada. Being a long and narrow peninsula, it is very much shaped by its proximity to the ocean in terms of its economy and its culture. Among the many ocean dependent activities of economic, social and cultural importance to Nova Scotia are fishing, angling and aquaculture, shipping and boating, fossil fuel and renewable energy exploration, and a variety of tourism and recreational activities. Many of these endeavours are well established, are closely connected to communities along the coastline, and are of significant economic value to the province. Others are minor contributors today, but offer significant future potential. Some are on the rise, while others are considered to be in decline. Most importantly, perhaps, views on which offer the greatest future potential for integrated solutions to environmental, social and economic challenges, are varied and change over time.

Traditionally, decisions about conflicting uses and the balancing of economic, social and environmental goals and values has taken place on an ad-hoc basis. As new activities have been proposed, such as oil and gas exploration in the 1980s, or aquaculture in the 1990s, governments have determined where and under what conditions to approve these new activities on the basis of whether they could operate without imposing undue burdens on existing users or on the environment. In many cases, it was left to existing users, aboriginal peoples, community groups and environmental groups to voice concerns about impacts of these proposed new activities outside the formal decision-making process.

Over the past decade, there have been calls for integrated planning and management of the ocean surrounding the province of Nova Scotia as mechanisms to improve decision-making. Early efforts arose out of the enactment of Canada’s Oceans Act, reflecting the clear federal jurisdiction over fisheries, navigation, and marine pollution, and more generally over any ocean space beyond the boundaries of the provinces. Among these integrated management efforts was the Eastern Scotian Shelf Integrated Management (ESSIM) process, a lengthy process involving an offshore area close to Nova Scotia. The results of the ESSIM process were ultimately not implemented. More recently, the federal government has embarked on the Maritimes Regional Oceans Plan, but the process is still in its early stages.
Early provincial efforts toward integrated coastal planning and management date back to the late 1990s, but also failed in the transition from design to implementation.

Jurisdictional challenges due to the somewhat limited and uncertain jurisdictional basis for provincial involvement in coastal and ocean management contributed to the failure of these early efforts. Federal jurisdiction is clearer, and is exclusive with respect to fisheries, navigation and marine pollution. The province of Nova Scotia has jurisdiction over local works and undertakings and other matters of a local and private matters, as long as these matters are within the territory of the province and do not unduly interfere with subject matters of federal jurisdiction. An added complexity is that some of the marine boundaries of the province of Nova Scotia are under dispute. The end result is clear provincial jurisdiction over land-based activities in the coastal zone, clear federal jurisdiction over fisheries, navigation and marine pollution, and disputed jurisdiction over other matters in the coastal area.

New momentum for integrated coastal management arose from a controversial quarry proposal in Digby Neck along the coast of Nova Scotia that resulted in the joint federal-provincial environmental assessment panel reviewing the proposed project calling for an integrated coastal management process to enable better decision-making on coastal activities. Efforts to respond to this call for integrated coastal planning include a draft provincial Coastal Strategy released in 2011, and a federal provincial memorandum of understanding (MOU). To date, however, Nova Scotia has no coastal legislation in place, no integrated coastal management or planning process in place, and the draft Coastal Strategy has not yet been finalized or implemented.

In the absence of integrated coastal planning and management, ocean zoning has been proposed by some as a way of improving decision making in the face of potentially competing interests and priorities among the many ocean uses in coastal waters surrounding Nova Scotia. Of course, some form of ocean zoning has already been utilized informally for some time. For examples, fishing zones have been used to issue fishing licences for lobster, herring and scallops among other species. Exclusion zones have been established for oil and gas exploration, including a moratorium on George’s Bank, and a Marine Protected Area with an oil and gas exclusion zone in the Gully near Sable Island. A coastal protected area has been established in the form of the Kejimkujik Seaside Adjunct Park. So far, the use of ocean zoning, however, has been ad hoc and generally single-issue based rather than integrated.

It is in this context that in 2013, the province of Nova Scotia initiated a review of the existing provincial regulatory approach to aquaculture, one of the emerging coastal industry sectors in Nova Scotia. The sector, and particularly the review of the current regulatory approach, offers valuable insights into the potential for integrated planning and management and ocean zoning to contribute to better decision-making in coastal areas. The following section offers an overview of the regulatory review process and its conclusions.

2. THE NOVA SCOTIA REGULATORY REVIEW OF AQUACULTURE

The regulatory review of the aquaculture sector in Nova Scotia was initiated in light of growing conflict among sectors of the industry, regulators, other users of coastal areas 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 the province of NS set up an independent Panel (that I had the privilege of serving on) to carry out a regulatory review of aquaculture. The Panel was asked to design a state of the art provincial regulatory system 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 better 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 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 identified 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 was 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 access to these resources. Key among these public resources were wild salmon, other aquatic species and the broader coastal ecosystem. Compatibility with other uses of public resources, such as fisheries and tourism, was 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 regulatory design were found by the Panel to be essential. Attitudes among regulators, proponents and community members had to become more constructive than was the case at the time of the regulatory review. The regulations had to serve to enhance the social license of the industry. Discretion had to be more limited than in the existing regulatory system. Regulatory capacity within the government had to be enhanced. Compatibility with other users of coastal waters had 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 recommended 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.

3. LESSONS LEARNED FOR ICZM, OCEAN ZONING & MARINE PLANNING

The coastal zone around the province of Nova Scotia is vital to the social, environmental and economic wellbeing of the citizens of the province. Currently, commercial and recreational activities, such as energy production, fishing, shipping, boating, angling, and tourism are regulated on a silo basis. Fishing and shipping are regulated federally, angling, and tourism activities are regulated provincially. Many activities involve both levels of government. Offshore oil and gas exploration is regulated by a jointly appointed board, the Canada-Nova Scotia Offshore Petroleum Board (CNSOPB). Aquaculture is regulated provincially, however, the industry is subject to federal rules regarding navigation and any impact on fisheries. Municipalities, though impacted by many of these activities, are generally not formally involved in regulating them. Some have taken steps to discourage or prevent activities not considered consistent with community priorities.

The lack of integrated coastal planning and management creates challenges for the regulation of each of these activities, including aquaculture. With integrated planning and management, potential use conflicts could be much more easily identified and resolved. Regulatory approaches to each of the activities in the coastal zone could take appropriate account of community priorities and could help maximize the social and economic benefits while minimizing environmental harm.
Without integrated planning and management, regulating each industry sector to maximize social and economic value while minimizing environmental harm becomes more difficult, but far from impossible. Careful consideration of the potential for use conflicts is critical. Zoning to encourage activities within areas most suitable for aquaculture while minimizing risk to other activities and the natural environment is another important step. In fact, with such an approach it is still possible to effectively regulate each of the activities, as long as it is carried out with proper coordination among responsible departments and levels of government.

A sector by sector approach is not likely to be as efficient as a regulatory approach developed and implemented in the context of integrated planning and management, and it does not offer the opportunity to move forward strategically with the best mix of activity to ensure long term social and economic prosperity while ensuring environmental protection. It can, however, be effective at reducing and eliminating use conflicts, and it can move each sector of activity gradually toward lower impact and higher value.
Active engagement of all key stakeholders and interested members of the public in the development and implementation of regulatory approaches for each of the sectors is key to achieving this improvement in regulatory approaches. Public information sharing about the range of coastal uses and their impacts can also be an important step forward. Zoning for each sector is an important step toward integrated planning and management. In the end, however, the greatest long term benefits of maximizing social and economic value while minimizing environmental harm and risk can only be realized through integrated planning and management.

Anything short of integrated planning must be expected to result in less than optimal use of coastal resources. It is unfortunate that jurisdictional squabbles and the early experience with integrated planning in NS, in the form of the EESIM process, have soured stakeholders and government officials to integrated planning in NS for the time being. Perhaps it will be up to other jurisdictions to demonstrate the value of integrated planning to create the necessary conditions in NS to return to the experience that was started with the EESIM process.

 

Meinhard Doelle,

Director, Marine & Environmental Law Institute

To download some of my publications, see http://ssrn.com/author=715387.