A row of nets line the surface of Annapolis Basin near Rattling Beach on a clear blue day.
Kelly Cove’s fish farm near Rattling Beach on the Annapolis Basin. Photo: Simon Ryder-Burbidge (contributed)

The province’s Aquaculture Review Board (ARB) failed to hear community concerns and hold industry to account in its first decision involving a salmon farm, environmental advocates say.

On January 28, more than two months after a hearing before the ARB, the new decision-making body approved an application from Kelly Cove Salmon Ltd. (KCS) to expand the boundary of its salmon farm at Rattling Beach near Digby, NS.

KCS, a subsidiary of Cooke Aquaculture, applied for the boundary amendment in 2016, but had been operating beyond the borders of its lease since it acquired it in 2004. As such, the board’s decision won’t change the size, production capacity, or location of current operations at KCS’s Rattling Beach fish farm, but will bring the existing site into compliance with its lease boundaries.

In its nearly 18 years of operations at Rattling Beach, KCS never faced a penalty for operating outside the boundaries of its lease.

In a virtual press conference hosted by the Healthy Bays Network on Tuesday, representatives from environmental advocacy groups and community organizations weighed in on the ARB’s decision.

The seven speakers at the event agreed on three main points: it was difficult for the public to express their concerns at the ARB hearing; the board didn’t adequately weigh the risk the farm could pose to wild salmon in the area; and KCS’s 17-year boundary violation was met with impunity, setting a problematic precedent for other fish farms in the province currently operating outside their lease boundaries.

“Redrawing a line in the water”

Kris Hunter, who spoke on behalf of the Atlantic Salmon Federation, said he thought the board’s 34-page decision contained “misrepresentation” of the conversations that happened during the hearing.

“We were under the impression that the whole purpose of sending these lease violation cases to the ARB was to have an independent review of the impacts that the expansions are having on the environment and wild Atlantic salmon by operating beyond the boundaries,” Hunter said.

“Yet [the board] chose instead to only look at this in the context of, as they said it, moving lines on a map, and not relating moving lines on a map to the actual expansion that they’re retroactively making legal.”

In its decision, the board took into consideration eight factors, including the sustainability of wild Atlantic salmon. The others, as outlined in the province’s Aquaculture Lease and License Regulations, range from the economic contributions of the site to the impact the farm will have on other parties using the surrounding public waters.

In considering these factors and what impact the boundary amendment would have, the three-person board, chaired by Jean McKenna, wrote “the short answer is none,” given KCS had already been operating in the proposed zone for nearly two decades.

“This ‘proposed operation’ consists only of redrawing a line on the water, so to speak,” the decision reads.

The only way operations would have changed is if the board had refused the application; the farm’s production would have reduced by 80% as over three-quarters of its 20 cages had been outside its approved boundary.

The Examiner requested an interview with a member of the board following the decision, but were told board members are not available for public comment.

Public participation “constrained”

The ARB was established following the Doelle-Lahey report, an independent review of aquaculture in the province completed in 2014. The report recommends the creation of an independent board to hear complaints and concerns from the public about the negative impact of an aquaculture site’s operations on the environment or instances where a company is violating the terms of their lease.

But Karen Traversy, who represents the Association for the Preservation of the Eastern Shore, said on Tuesday the board has not met its mandate.

“This first hearing, essentially a ratification of an already existing boundary expansion, was a process with such a narrow focus that valuable input from coastal communities was significantly constrained,” she said. 

The Ecology Action Centre, Healthy Bays Network, and St. Mary’s Bay Protectors had all applied for intervenor status at the hearing, which, if approved, would have given them the opportunity to make a case against the expansion, present evidence, and call witnesses to the board’s hearing. The board denied the applications of all three organizations, saying in its decision that the groups opposed open-pen aquaculture in general and did not bring forward enough concerns specific to the Rattling Beach site.

“It is essential to point out that the role of this Board is not to provide a platform for general opposition to, or support of, open pen aquaculture in general,” reads the decision. “Rather, we must consider this application.”

Also of concern to Tuesday’s speakers was the lack of formal consultation with Mi’kmaq First Nations in the area on how they would be impacted by farm operations at the site.

The ARB found there was no duty to consult the Mi’kmaq because the site had been operating within the area at hand since 2004, and therefore there would be no new impact on Aboriginal or treaty rights. The Office of Aboriginal Affairs (now the Office of L’Nu Affairs) also concluded there was no duty to consult for this reason.

But Sarah McDonald, a lawyer with Eco Justice, condemned the lack of consultation.

“I would suggest that it is appalling that DFA could avoid its constitutional obligation to consult with First Nations by tacitly allowing Kelly Cove to complete its expansion before going through the required application process and then retroactively claiming that the lease expansion won’t have any impacts on Indigenous rights,” she said.

The Examiner reached out to Kwilmu’kw Maw-klusuaqnalf — which represents most of the Nova Scotia Mi’kmaq communities in consultations with the federal and provincial governments — but did not hear back by the time of publication.

Proving environmental impact

McDonald, who represented the only approved intervenor in the hearing, said it’s hard to say for sure whether the site is having a negative impact on wild salmon populations because of a lack of population monitoring. It should fall on the Department of Fisheries and Aquaculture to carry out that monitoring, she argued.

“The board, of course, rejected that argument,” she said at Tuesday’s event. “And in doing so, essentially imposed a burden on groups and communities concerned about open-net pen aquaculture to produce positive evidence of impacts on wild salmon, which is a huge hurdle.”

McDonald said it would be unreasonable to expect communities to have the resources or expertise to produce proof that wild salmon populations are impacted by the farm’s operations. Instead, she said, provincial regulators and the proponent should be required to produce evidence that there is no negative impact on the endangered species.

Concerns over the impact of farmed salmon on wild populations has led the federal Department of Fisheries and Oceans to start phasing out open-net pen aquaculture in British Columbia and move solely to land-based fish farms there by 2025. No such ban has been announced on the Atlantic coast. Concerns over open-net pens include the transfer of parasitic sea lice to wild populations and the interbreeding of escaped farm fish with wild fish, which can produce offspring less suited for survival in the wild.

An emailed statement attributed to Fisheries and Aquaculture Minister Steve Craig explained the government provided proponents who were operating outside the terms of their lease with the opportunity to bring their sites into compliance following the implementation of the Doelle-Lahey report in 2014.

The ARB’s decision notes the provincial government repeatedly told KCS to hold off on applying for its boundary amendment before placing a moratorium on applications in 2013 in anticipation of the Doelle-Lahey report. The ARB’s decision makes it clear the province was aware KCS was operating outside its boundaries at Rattling Beach since at least 2008.

Minister Craig did not comment on whether Cooke Aquaculture was or should have been penalized for violating the terms of its lease, and wrote that enforcement of aquaculture regulations was the responsibility of the Department of Environment and Climate Change. 

With regard to KCS’s boundary expansion, the minister wrote: “We respect the independent judgement and ruling of the board.”

The Examiner asked to speak with a KCS representative about the decision, but instead received an email from Cooke Aquaculture’s public relations office with a link to a statement the company issued Friday. The statement reads, “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.” 

The company said it employs 205 full-time Nova Scotian workers and supports another 240 jobs through spending on goods and services from local suppliers, and that its salmon farming in Nova Scotia generates annual taxation of $7.4 million. The company did not say how many workers are employed at the Rattling Beach site specifically.

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Ethan Lycan-Lang is a Morning File regular, and also writes about environmental issues, poverty, justice, and the rights of the unhoused. He's currently on hiatus in the Yukon, writing for the Whitehorse...

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