New regulator shuts down questions on fish farm oversight in Nova Scotia

The Nova Scotia government was shielded from questions Tuesday about why it allowed a salmon farm owned by seafood giant Cooke Aquaculture to operate outside its lease boundary for years.

The decision to shut down the line of inquiry came from the province's newly created Aquaculture Review Board, which is hearing an application to expand the boundaries of Cooke's open net pen salmon farm near Digby.

"Nothing is to be gained by calling evidence that is an attempt to criticize the enforcement branch of the Department of Environment or Department of Fisheries and Aquaculture," board chair Jean McKenna said on the second day of hearings in Yarmouth.

"We are not a board of inquiry into the appropriateness or inappropriateness of aquaculture in the province."

Why this hearing matters

This is the first fin fish application to go before the quasi-judicial board, which was created to enhance public confidence in decisions surrounding aquaculture.

The media is not allowed to record proceedings. However, they are being livestreamed on the internet.

Cooke's 20-cage salmon farm at Rattling Beach has been operating outside the original — and much smaller — lease boundary for many years.

The company does not want to add more cages or fish at the site. Right now the pens hold about 660,000 Atlantic salmon.

Cooke subsidiary Kelly Cove Salmon is seeking a boundary amendment that would legitimize what has been going on at the site for decades.

The provincial Department of Fisheries and Aquaculture knew Cooke was out of compliance as far back as 2011, according to the company.

Several aquaculture sites belonging to Cooke and other companies were also found to be non-compliant after the advent of more sophisticated global positioning technology, a Cooke official said Monday.

The province allowed Cooke to continue operations while it overhauled aquaculture rules. The company first applied for a boundary amendment to Rattling Beach in 2016.

Province says criticism of its role is 'irrelevant'

Sarah McDonald, an environmental lawyer with Ecojustice Canada, is representing Gregory Hemming, a local resident and intervenor who fears the fish farm could damage a "re-wilding project" on his Annapolis Basin property.

McDonald tried to ask a department official about lease non-compliance Tuesday.

Nova Scotia Fisheries and Aquaculture lawyer Allison Campbell objected to the "implied criticism," arguing "the history of the department's enforcement in my submission is not relevant."

She said the board was obligated to consider only the boundary application's effects on eight factors set out in regulation.

Those are its impact on local fisheries and other water users in the area, the environment, navigation, wild salmon sustainability, community and provincial economic development, its effect on nearby aquaculture operations and optimum use of marine resources.

Cooke, through veteran regulatory lawyer Robert Grant, supported the objection.

Environmentalist argument rejected

McDonald argued the department's ability to regulate fish farms was relevant.

"Our submission is surely evidence that the Department of Fisheries and Aquaculture may not be as competent to regulate or as willing a regulator as it claims to be, is relevant to the board's assessment of impacts on all of those factors," McDonald argued.

McKenna dismissed that, saying "history has nothing to do" with any of the eight factors the board must consider.

"We're not here to offer a critique or dismissal of the Department of Fisheries and Aquaculture's ability to monitor aquaculture sites, either this one or any other one in the province. That's not our role, it's not our mandate. And whether they will or will not do a good regulatory inspection control in the future, we don't know. We have different people involved in the first place. We have a different regulatory scheme," McKenna said.

"There aren't going to be more cages on the site. There's going to be, if you will, more site underneath the cages."

Reaction to ruling

McDonald said afterwards she was disappointed by the ruling.

"The board has been clear that it is taking a more narrow view of this application than my client might like. However, we certainly do have evidence that will be coming out tomorrow about impacts or potential impact on wild salmon," she said.

A spokesperson for the Ecology Action Centre, one of three environmental groups denied intervenor status, called the ruling troubling and problematic.

"I think that what we've heard today is that we're not going to be allowed to assess the province's ability to regulate in these Aquaculture Review Board hearings. So that's a huge issue," said marine campaign coordinator Simon Ryder-Burbidge.

Province defends regime

On Tuesday, the provincial officials reiterated their findings that the fish farm at Rattling Beach poses no undue risk to wildlife or fisheries in the area and defended the new regulatory regime.

Manager of aquaculture operations for the province, Jessica Feindel, said on the key measurement of sulfide levels below cages — which reflects oxygen depletion — the new provincial threshold is stricter than that used by the federal government.

"This, in my opinion, is one of the best performing sites in Nova Scotia," she said.

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