Opponents deride first fish farm decision from new N.S. regulator

Opponents of marine fish farms lashed out Tuesday at the Nova Scotia Aquaculture Review Board after the newly created regulator sided with industry in its first decision, related to a salmon farming case.

The board approved the boundary expansion of a Cooke Aquaculture salmon farm near Digby, N.S.

Critics claim the decision sets a precedent for a number of other Cooke-owned salmon farms in Nova Scotia that have been operating outside their original — and much smaller — lease footprints.

"It certainly sets a poor precedent for enforcement of lease boundaries at other problematic sites and certainly sets a poor precedent in terms of transparency and social licence for these kinds of operations," said Sarah McDonald, a lawyer for Eco Justice.

McDonald was one of seven speakers at a virtual news conference called to "break down the decision, the NSARB process, and what it means for the future of huge industry expansion plans in Nova Scotia."

For 18 years, Cooke subsidiary Kelly Cove Salmon has been operating a 20-cage salmon farm at Rattling Beach that exceeds the lease footprint. If the original boundary were enforced the fish farm would hold four cages.

Decision legitimized informal government acceptance

The review board decision issued Friday legitimized what had been going with government acceptance.

Because Cooke did not want to add more fish or equipment to the site, the board ruled the amendment amounted to a line on a map and had no impact on environmental and other factors it must consider.

"This boundary creep expansion was intentional and benefited the operator. But where is the sanction by the regulator? Why the tolerance for such deliberate expansion?" asked Karen Traversy of the Association for the Preservation of the Eastern Shore.

"The board has clearly sent a message regarding the possible outcome of four more of these boundary expansions up for approval, all involving the same operator," she said.

During public hearings last fall the board ruled the province could not be questioned about why it allowed the company to operate when it was not compliant with its government lease.

The province asserted questions about its past conduct were outside the scope of the hearing. Cooke agreed, as did board chair Jean McKenna.

"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," McKenna said on the second day of hearings in Yarmouth.

'A lot of insulation from scrutiny'

"There was a lot of insulation from scrutiny at the provincial level. We saw the province sort of pushing to ensure that enforcement capacity and regulatory capacity in the past could not be challenged during the hearings," said Simon Ryder-Burbidge of the Ecology Action Centre in Halifax.

"We do think that's like a major problem."

"It would have saved us a lot of time and effort because we would have seen that the approval was preordained and that there was zero interest in hearing evidence relating to the conduct of both government or the operator," said Derek Purcell of the Twin Bays Coalition.

In the decision released on Jan. 28, the board noted the company had been trying to amend its lease since 2008 but was prevented by the province which repeatedly put off its request.

The board denied intervenor status to three of the groups speaking at the news conference on the grounds they were not directly affected by the Rattling Beach fish farm. It said it was not a forum for opponents — or supporters — of fish farming.

The quasi-judicial board was created to enhance public confidence in decisions around aquaculture.

Undermining confidence

Speakers at Tuesday's news conference repeatedly attempted to undermine that confidence.

"The ARB needs to be dismantled," said Brian Muldoon of Protect Liverpool Bay.

The group is fighting a large expansion to an existing Cooke salmon farm in the area.

Sarah McDonald represented a local resident, Gregory Hemming who was granted standing by the board.

Hemming became a proxy for opponents.

McDonald said the board repeatedly "interpreted the evidence put forward by the other parties, being Kelly Cove and DFA (Department of Fisheries and Aquaculture) in an extraordinarily positive light, particularly when it came to the long history of lease violations at the site."

"The board sort of characterized that history as being an innocent mistake, despite significant evidence to the contrary," she said.

"So clearly the board was willing to give DFA and Kelly Cove significant leeway in contrast to the intervenor."

Cooke pleased with outcome

Kris Hunter of the Atlantic Salmon Federation said the board was created to provide input by communities on aquaculture development — and it failed.

He said the board put the onus on opponents to show Rattling Beach posed a risk to wild salmon populations.

"That burden should be on the government and the proponent to demonstrate that the operation would not have an impact on wild salmon and the environment," said Hunter.

"There were a number of cases where there seemed to be misrepresentation of the conversation that happened during the ARB or at least cherry-picking of different arguments."

In its response, Cooke said the case demonstrated that Rattling Beach did not have a negative impact on any of the factors the board had to take into consideration.

"We are pleased with the outcome of this application and look forward to engaging with this process for the other applications we have before the ARB," Cooke said in a news release issued after the decision.

"Kelly Cove has operated on this lease since 2004, and the site has been an active aquaculture operation since 1994. Our application was to bring all moorings and equipment within the lease boundary, with no changes in equipment, location or production increases.

The Aquaculture Review Board declined to comment telling CBC in a statement: "An adjudicative tribunal or court must not respond or speak to a decision, and it would be improper to do so."

The province is about to begin a review of the rules around aquaculture development.

The review will be carried out by the Nova Scotia Aquaculture Regulatory Advisory Committee, co-chaired by Chief Terry Paul and deputy minister April Howe from the Department of Fisheries and Aquaculture.

The committee is made up of members that represent industry, stakeholder groups, municipalities, environmental non-government organizations, and Mi'kmaq communities.

The committee last met in December to begin planning the regulatory review that was requested by Minister Steve Craig. The department is currently in the process of hiring a facilitator to support the review.