February 28, 2019

Department of Agriculture Aquaculture and Fisheries

Hugh John Flemming Forestry Centre
P. O. Box 6000
Fredericton, NB, E3B 5H1

Attention: Kathy Brewer-Dalton

Email: Kathy.Brewer-Dalton@gnb.ca

RE: ASF Comments on the NB Aquaculture Act Engagement

Dear Kathy,

On behalf of the Atlantic Salmon Federation (ASF), we are pleased to submit the following comments
for consideration in the drafting of a new provincial Aquaculture Act. While we are encouraged that
New Brunswick’s government leaders are considering legislative changes to enhance industry
transparency and wild fish protection, we are concerned about parallel legislative processes unfolding
at the provincial and federal levels. Specifically, we are referring to recent commitments by Ottawa to
develop a national Aquaculture Act. ASF believes many of the environmental, fish health, and legal
crises that have flowed from finfish aquaculture in the Bay of Fundy were partly the result of confused
roles. Achieving national aquaculture standards enforced by a single regulatory body should the goal
of both levels of government.

Notwithstanding, the February 7 stakeholder engagement meeting was informative, and we appreciate
the one-week extension granted for the submission of our comments.

ASF’s mandate is to conserve and restore wild Atlantic salmon and their ecosystems. Salmon
aquaculture in open net-pen facilities has a variety of well-known, negative impacts on the environment
and wild salmon. While ASF recognizes the industry as a user of the marine space, the current New
Brunswick Aquaculture Act is extremely limited in its scope and purpose and contains sections that
effectively shield industry from public accountability and transparency requirements that apply to other
industries in New Brunswick and other aquaculture companies operating outside the province. It is
important that this legislative initiative results in a substantive broadening the Act’s scope, an increase
in transparency and accountability requirements, and improves protections for wild salmon and the
ecosystems supporting them.

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Our submission attempts to answer the questions posed during the stakeholder meeting held earlier in
February, bringing in specific references to the existing Act where possible.

1. Purpose of an Act

In its current form the New Brunswick Aquaculture Act does not include a purpose statement. ASF
concurs with departmental officials that developing a section devoted to describing the purpose of the
Act is an important starting point in the legislative process. The purposive approach is now the
dominant framework for statutory interpretation in Canada, reaffirmed in several instances by the
country’s Supreme Court.

Given the province’s responsibilities under the Clean Water Act, the Clean Environment Act, the Fish
and Wildlife Act, and linkages to the federal Fisheries Act, Environmental Protection Act, and more,
ASF contends that any new provincial Aquaculture Act should give equal weight to environmental
protection and the management of aquatic cultivation in its purpose statement.

A balanced purpose statement from which new legislation and regulations flow would help ensure that
managers fairly consider other users of the marine environment in aquaculture decision making. Other
users include professional and recreational fishermen, tourism operators, wild fish, birds, mammals,
plants, and more.

The purpose should align New Brunswick with Canada’s international commitments to wild salmon
conservation, including those agreed to at the intergovernmental North Atlantic Salmon Conservation
Organization (NASCO) where the federal government agreed to reduce to zero the effects of
aquaculture origin sea lice on wild salmonids, and reduce the number of aquaculture escapes to zero.
While it is indeed Canada that signed these agreements, if the province wishes to retain a role in
aquaculture management it must be committed to meaningful contribution toward achieving these
goals.

2. Definitions

ASF views the FAO’s definition of ‘aquaculture’ presented at the stakeholder meeting on February 7,
2019, as generally being appropriate. It encompasses a wide spectrum of activities by defining the
“farming of aquatic organisms” as “some form of intervention in the rearing process.” We believe this
language would improve the subjective nature of the current New Brunswick definition where
arguments could be made over what constitutes “cultivation.” The FAO example also captures
activities explicitly exempted by Nova Scotia’s definition of aquaculture such as the rearing of fish by
individuals for consumption. Historically, stocked ponds on private land have been a source of invasive
species in New Brunswick and should be appropriately governed and regulated as an aquaculture
activity.

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Furthermore, ASF notes that changes to the current New Brunswick Aquaculture Act have been
reactionary. For example, the establishment of bay management areas is attributable to the advent of
virulent ISA outbreaks. Although reacting to events as they unfold is inevitable, legislators should also
be predictive. Given that the aquaculture industry has developed and commercialized genetically
modified strains of Atlantic salmon, the Act should clearly define what these organisms are and
specifically prohibit their introduction in the marine environment.

Another area where foresight could allay future problems is with regards to sterile strains of foreign
Atlantic salmon. In Newfoundland and Labrador, federal and provincial authorities have cleared the
way for the importation of triploid, Icelandic strain Atlantic salmon for introduction in Canadian
waters. ASF is aware of similar requests in the past from New Brunswick operators and depending on
the outcome in Newfoundland, pressures may come again from industry participants here to use similar
strains here. The triploid induction process is not 100% effective, meaning there are risks associated
with the escape of non-triploid, sexually mature farmed salmon that could result in introgression with
wild populations. Therefore, the new Aquaculture Act should clearly define what triploid salmon are
and subsequent regulations should deal explicitly with issues like triploidy verification and disease
screening. These are just two examples, but there may be other areas that should be defined or redefined
as well.

3. Environmental Protections & Externalities

i. Space Planning/Bay Management: Under Section 5 of the current Act, the Minister is
granted power to designate a bay management area, and under sections 13 and 14 the
registrar and the minister may apply additional terms and conditions to a license, but there
is no apparent language which indicates decision-makers must consider the total effects of
all sites within a bay management area. Therefore, officials and legislators have limited
power to set conditions within that area. Licenses are considered individually.

As a result, ASF recommends additional language in a new Aquaculture Act that compels
consideration of cumulative, far-field, and long-term effects of all licenses within a bay
management area. Subsequent regulations should tie water quality, sea lice levels, and fish
health measurements to permitted stocking densities and fallow periods. An important
consideration in spatial planning for salmon aquaculture sites that should apply to current,
amended, and new licenses is the proximity to wild salmon rivers, critical habitats and
migration routes. The existing New Brunswick Aquaculture Act contains provisions for
amending licenses under sections 11 and 12, however the amendment process must be
initiated by the licensee. A new Act should grant powers to the Minister and/or the registrar
to amend existing and new licenses, including the location of net pens, to accommodate

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 other marine users and wildlife migration routes, giving regulators the ability to modify
site locations as new information becomes available.

ii. Ownership of aquaculture produce/traceability: The present legislation is incredibly

narrow in scope with regards to the ownership of aquaculture produce. Section 22 states,
“All aquaculture produce of the species and strains specified in an aquaculture license,
while contained within the boundaries of an aquaculture site, are the exclusive personal
property of the licensee.” Over time, ASF and stakeholders have documented hundreds of
thousands of escaped aquaculture salmon within the Bay of Fundy, and DFO has detected
the fresh presence of illegal strains of European-origin farm salmon in Inner Bay of Fundy
salmon as recently as 2012. This can have devastating and irreversible effects on wild
Atlantic salmon. Modernized legislation must ensure that industry maintains ownership of
and responsibility for aquaculture produce including after it has escaped the physical
footprint of the sea-cage facilities. The industry must be held to account for escaped
salmon that inevitably migrate into Bay of Fundy rivers and their estuaries. Ownership
and responsibility should not be downloaded on the general public, something that is
completely irrational and irresponsible on the part of industry and the regulator. Escaped
salmon are the equivalent of biological contamination and must be treated as such with the
owner of the contaminant being held responsible the protection of rivers, interception and
removal after “discharge” into the environment.

In order to ensure accountability and enforce laws and regulations, the updated New
Brunswick Aquaculture Act must require companies to mark all finfish placed in the
marine environment so escapes can easily be identified as such and can subsequently
be traced back to their origin. In Maine, genetic mechanisms are in place that enable
tracing of escapes back to operator/farm and possibly cage site. In Nova Scotia, it is our
understanding that new regulations for traceability options are being developed. ASF urges
the province to make traceability a requirement in a modernized Act. Mandatory visible
external markings would enable intercepted escapees to be quickly identified and removed
from rivers without fear of violating provisions of the Fisheries Act and/or Species at Risk
Act that protect wild salmon. Escaped salmon in rivers are not wild and should be more
appropriately treated as an invasive species. Visible markings would provide this
capability for identification and removal.

In addition to enabling detection and removal from rivers, mechanisms are required
(genetic or otherwise) to trace escapees back to their owners and facilities such as is done
in Maine. This links closely to the concept we have suggested that ownership of
aquaculture salmon must remain with the industry operators even after – and especially in
the case of – escape from the sea-cage facilities.

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 Due to the presence of endangered species in close proximity to New Brunswick salmon
aquaculture sites, and industry’s demonstrated poor record of containment, the balance of
convenience and cost when it comes to marking aquaculture salmon must favour wild
species and the environment.

iii. Capturing externalities: New Brunswick’s existing Aquaculture Act grants the Minister
power to designate the sea floor and the superjacent water column as aquaculture land. As
land, aquaculture sites are taxed under the Real Property Tax Act subject to the Assessment
Act. A scan of three sites in close proximity to Deer Island reveal average assessment
values of $25,300 and average annual property tax bills of $808.50, a laughable sum
compared to nearby residential properties. Combined with the nominative lease fees
charged by the province, ASF is dismayed by the chronic undervaluing of aquaculture sites.
The services those sites provide to private industry are not recognized or captured by
legislation or regulation.

The new provincial Aquaculture Act should define ecosystem services and subsequently
recognize the value those services lend to aquaculture land. The current system defies the
stated objectives of New Brunswick’s market value assessment regime. As a result of these
low assessments and annual rents, the province is extending a massive subsidy to industry,
effectively allowing companies to completely externalize the cost of waste processing and
water quality control. Companies are freely disposing of drugs, parasites, fecal matter, and
disease in public waters. Subsequent regulations that accompany a new Act must require
companies to pay fair market value for the use of these publicly owned services.

4. Transparency and Accountability

i. Public information: As we expressed at the St. George meeting, ASF has long been
concerned with the “cloak of secrecy” that has shielded industry (and government) from
scrutiny in New Brunswick. Section 38 of the current Aquaculture Act has created an
absurdity in law for the exclusive benefit of for-profit corporations. A revised Act must
not include such sweeping exceptions to disclosure and must not be placed above the rights
guaranteed to citizens through the Right to Information and Protection of Privacy Act. Any
company using public ecosystem services to generate profits must be held to a higher
standard of transparency, not a markedly lower one. The public expects nothing less. To
facilitate regular and proactive disclosure, ASF supports the development of a publicly
accessible, online “Aquaculture Registry”, enshrined in the updated Act and described in
regulation. This concept is consistent with federal plans to create a public registry under
the Fisheries Act (Bill C-68) which ASF also supports.

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 At a minimum, the registry should contain all the data currently published by the Canadian
government in relation to salmon aquaculture in British Columbia. This open data portal
has been developed by Fisheries and Oceans Canada. It can be found here:
https://open.canada.ca/data/en/dataset?keywords=Aquaculture&page=1

Given the current confusing division of aquaculture responsibilities between Ottawa and
the provinces in Atlantic Canada, a public aquaculture registry in New Brunswick should
include data from both levels of government. It is not reasonable to expect the general
public to search multiple sources for information about a single site.

ASF believes that cost figures internal to the industry, such as feed costs, drug treatment
costs, and hatchery associated costs can remain confidential as per established exceptions
in the Right to Information and Protection of Privacy Act, but other details related to those
costs, such as the type and frequency of pesticides and drugs used, escape events, sea-lice
abundance, etc, should be available to the public. Again, the balance of convenience should
favour disclosure and the public interest, not industry’s desire to avoid public scrutiny.

ii. Enforcement: Given the troubling history and brazen disregard for the law demonstrated
by New Brunswick based aquaculture companies at home and abroad, ASF supports the
addition of new enforcement tools in an updated Aquaculture Act, particularly the ability
to ticket for minor offences as a means of denunciation and deterrence. Considering the
recent case of Northern Harvest Seafood’s illegal use of sea lice chemicals near
Campobello, which was subsequently described as a “business decision” in court, it is
apparent that fines must be set at a level that disincentivizes such grotesque behaviour.

Despite the addition of alternative monetary penalty mechanisms in a new provincial

Aquaculture Act, language giving inspectors and officers the ability to prosecute violations
under the Provincial Offences Procedure Act where warranted or deemed beneficial to the
public interest should remain.

5. Farm Management Plans

ASF supports the addition of requirements for farm management plans in new provincial aquaculture
legislation. These plans should be publicly available so comparisons can be made to actual performance
measures that would be posted in the public registry. Farm management plans should be tied to
enforcement, with failures to comply sanctionable. Ultimately, a serious, uncorrected failure to comply
with a farm management plan should result in suspension or termination of the license. Some items
that should be included in farm management plans are stocking plans, biosecurity and waste
management measures, lice treatment plans and thresholds, and more. The introduction of FMPs and
linking them to licenses would enable better outcomes. ASF emphasizes the need for sufficient auditing

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and compliance monitoring and enforcement resources and mechanisms to ensure that operators are
complying with their FMPs and achieving the required performance outcomes. Self-regulation will not
suffice or instill confidence in the public.

6. Regulation

The Province has indicated that regulations are presently prescriptive in terms of “how” things should
be done, but not in terms of the desired outcomes. The Province also seemed to suggest that they are
considering a move away from this type of prescriptiveness in future aquaculture regulations because
it constrains the ability for industry to adopt innovative technologies and approaches that may lead to
better performance outcomes. ASF supports the notion of specifying (i.e. prescribing) performance
outcomes in regulations, particularly in relation to those aspects that affect the environment and wild
salmon (e.g. containment, sea-lice, etc) as long as the necessary audits, compliance monitoring and
enforcement mechanisms are in place to detect and take enforcement action when there is non-
compliance. ASF suggests that the Act be stringent in its performance measures, especially those that
relate to environmental and wild fish protection, in a manner that encourages industry to adopt new
technologies that serve to eliminate problems in the marine environment (e.g. the development of land-
based, closed containment facilities).

On the question of whether there is a role for 3rd party standards (e.g. ISO) that could be adopted as
regulations, ASF supports this notion. We see it as an opportunity for the government of New
Brunswick to work very closely with the federal government and other provinces on the development
of national standards. The federal Environment Commissioner highlighted in her 2018 report that there
is a lack of national standards on such things as preventing escapes and regulating how much
therapeutants and pesticides may be used.

7. Bonding and Performance Guarantees

The posting of bonds or contributions to remediation is a prudent approach to ensuring that remediation
takes place, particularly considering the risk/possibility that lease holders could go bankrupt or
otherwise abandon sites. Such bonds may have prevented the horrific situation that unfolded in
Passamaquoddy Bay after the collapse of Gray Aqua Group when caged salmon were left to suffer and
die from untreated sea-lice infestations. The term “site remediation” needs to be clearly defined and
not limited strictly to the physical footprint of the site itself. Damages from site operations can and
likely will extend beyond the physical location/footprint, particularly if the “damages” are the result of
escapes/introgression, disease/parasite transfer, and from the settling of waste, feed and other chemical
and biological materials and contaminants beyond the physical footprint of the site. If too limited, then
the bonds required and/or contribution levels to remediation funds could fall well short of what is
needed to properly conduct remediation.

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8. Ties to Other Legislation

It is our understanding that licenses may be cancelled if the license holder is convicted of violations of
the Aquaculture Act. ASF supports this as a matter of course, but particularly so under a modernized
Act that will be broader in scope with respect to the environment and aimed at ensuring better
performance standards.

While those who violate the current Aquaculture Act may have their license suspended or revoked,
there are no legislative ties to other related acts and regulations. Among others, the provincial Clean
Water Act, federal Fisheries Act, Species At Risk Act and Canadian Environmental Protection Act are
all relevant and should be linked to the Provincial Aquaculture Act. Failure to comply with the federal
Introductions and Transfers regulations, perhaps in the case where non-authorized genetic strains are
confirmed, should result in license suspension or cancellation. An analogy to this concept comes from
recreational fisheries whereby the convictions for violation federal fisheries regulations (e.g. the
poaching of wild Atlantic salmon) will result in the termination or suspension of provincial fisheries
licenses.

Recognizing the extent of well-known environmental impacts of open net-pen finfish aquaculture
operations and associated threats to wild salmon populations, it is absurd that the legislative framework
in New Brunswick does not include proposed operations on the provincial list of projects that require
Environmental Impact Assessment (EIA). ASF urges the relevant departments (i.e. DAAF, DELG,
perhaps others) to ensure that the legislative mechanisms are in place that would require an EIA to be
conducted for proposed new finfish aquaculture projects.

9. Administrative Officers

Notionally, ASF supports the creation of the position of a Chief Veterinary Officer, as long as the
responsibilities are not constrained or limited only to the health of farmed fish. A Chief Veterinary
Officer should have responsibility for the health of wild fish given that they are affected by aquaculture
operations. For example, a Chief Veterinary Officer should have powers to order the depopulation of
a cage site or bay management area if they deem the risk of disease or parasite transfer from cultured
to wild fish to be unacceptable.

Furthermore, being responsible solely for fish health is a narrow scope. A Chief Veterinary Officer
appointed under the new Aquaculture Act should also be responsible for the welfare of fish. Conditions
that benefit captive salmon should be spelled out in regulation and violations punishable under the Act,
particularly regarding the aforementioned and highly preventable Gray Aqua Group incident in which
thousands of farmed salmon suffered a horrible fate.

10. Regulation Development Process

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On the question of what process would be helpful/useful in developing regulations, ASF recommends
the creation of a multi-stakeholder advisory committee that will work closely with the Province.
The committee would serve as a sounding board and check-point for regulation and policy
considerations. Draft regulations and policies could then be advertised to the public via the online
Aquaculture Registry for open and active public consultation. Submissions could be made available
to the general public through this registry, in much the same way submissions on the federal Fisheries
Act were made public during the consultation phases.

We trust that our perspectives and recommendations will be considered by the Province in drafting a
modernized Aquaculture Act, and we will actively engage going forward in reviewing draft legislation
and subsequent regulation and policy development to support the revised Act.

Sincerely, and in the spirit of wild Atlantic salmon conservation,

Geoff Giffin, Neville Crabbe

Director, Regional Programs Executive Director, Communications

Atlantic Salmon Federation (ASF) Atlantic Salmon Federation (ASF)

The Atlantic Salmon Federation (ASF) is an international conservation organization founded in 1948
to conserve and restore wild Atlantic salmon and their ecosystems. ASF is headquartered in St.
Andrews, NB, Canada and maintains offices in Brunswick Maine, Quebec, and Atlantic Canada.
Through ASF's membership and affiliated volunteer network, the organization represents more than
25,000 individuals who share ASF's commitment to wild rivers and wild salmon.