Aquaculture Review Board approves Kelly Cove’s lease expansion at noncompliant site
HALIFAX, N.S./ TRADTIONAL TERRITORY OF THE MI’KMAQ — Nova Scotia’s Aquaculture Review Board (ARB) has approved a lease expansion for an aquaculture site that has been operating, without repercussions, outside its existing lease boundaries for more than a decade. Ecojustice says this decision sets an alarming precedent that aquaculture companies can not only break the law with impunity, but with assistance from the government bodies meant to hold them accountable.
For more than a decade, the Government of Nova Scotia has allowed Kelly Cove to illegally operate outside of its lease boundaries at its Rattling Beach site and several other open-net pen sites in Nova Scotia.
Although Kelly Cove’s existing lease boundaries at Rattling Beach encompassed 8.75 hectares, the company has been operating over 29.08 hectares, an area more than three times the size of their lease and licence. The company has 20 cages at the site, more than five times the number that could otherwise fit within its previously approved lease area.
Rather than bring the company into compliance with its lease boundaries, the ARB has legitimized the company’s unlawful actions by approving Kelly Cove’s application to retroactively expand its Rattling Beach site. It is likely Kelly Cove will now follow suit with its remaining noncompliant sites.
This was the first application for a new or expanded finfish site heard by the ARB. The ARB is an independent decision making body with a mandate to decide on aquaculture applications in marine areas for new sites, expansions to existing sites and the addition of finfish species to sites not currently approved to produce finfish.
Ecojustice intervened on behalf of literary ecologist (PhD) and writer, Gregory Heming, at a hearing before the ARB in November 2021. Ecojustice is seriously concerned about the dangerous precedent this decision sets as the Department of Fisheries and Aquaculture (DFA) may proceed to refer additional lease expansions applications at noncompliant sites to the ARB for approval.
Requests by affected Mi’kmaq communities to be consulted about the Rattling Beach expansion application were denied by the Government of Nova Scotia. The DFA claims this was not required as approval of the application would not result in increased production at the site. However, this is only true because the company was operating the site unlawfully outside of its lease boundaries. The ARB decision did not require any consultation to take place prior to approving the lease expansion.
Sarah McDonald, lawyer, Ecojustice said:
“The ARB’s decision to approve Kelly Cove’s lease expansion, in tandem with more than a decade of inaction by the provincial government, undermines the regulatory scheme’s focus on incentivizing compliance. There is very real concern that Kelly Cove may follow suit with its remaining noncompliant sites, a pattern which would be contrary to the rule of law.
“The decision puts critically endangered wild salmon populations at risk. Despite the known impacts fish farming has on wild salmon stocks and contrary to clear guidelines in the Aquaculture Lease and Licence Regulations, Kelly Cove Salmon is not required to study critically endangered local salmon populations to assess impacts.
“It is disappointing that the ARB was unwilling to properly scrutinize the clear misconduct by both Kelly Cove and DFA over the decades preceding this application. We are also very concerned about the lack of consultation with affected Mi’kmaq communities.”
Gregory Heming, literary ecologist (PhD) and writer, said:
“This decision from the ARB is certainly disappointing; however, it was unfortunately not unexpected. Their decision was simply wrong: it ignored Indigenous wisdom, First Nations land rights, and the rights of nature; it convoluted the precautionary principle so necessary to the survival of wild salmon; and most importantly, it legitimized unlawful open-pen fish farming activities by ignoring the rule of law and sidestepping the departments own mandate of transparency and oversight.
“The fact of the matter is the final decision; the seventeen-year process leading up to the decision; the economics of open-pen fish farming; and the role of government in the oversight of the department were all deeply rooted in a world-view I no longer hold to be true. In fact, the commonly held view that the earth’s natural resources are there for the taking without serious consequences is a narrow and obsolete one. If allowed to continue unchallenged, this view will likely collapse the ecosystems necessary for life on earth.
“The path wild salmon have taken since they first swam lakes and streams of Western Canada some fifty million years ago, and the much shorter one humans have followed in their two-million-year evolutionary history, have radically diverged. Salmon for the most part has stayed the course. We on the other hand have allowed ourselves to become deeply socialized and governed along a path that treats ecosystems as little more than dispensable and corporatized commodities.
“If enough community members join together in the struggle to save wild salmon, and if we continue to fund expert legal support organizations like Ecojustice, our future and that of wild salmon can be hopeful. We must give ourselves time to understand what it means to be salmon, and what it means to be human. It is a path in which we must educate ourselves to be ecologically competent and compassionate in our lives and in our livelihoods.”
In May 2013, Nova Scotia issued a moratorium on new open net pen aquaculture sites, and launched a review of the legislation governing aquaculture in the Province. The resulting Doelle-Lahey report (authored by two professors from Dalhousie’s Schulich School of Law) was released in July 2014. While the report did not recommend a permanent moratorium on open net pens, it did call for a fundamental overhaul of the Province’s aquaculture regulations.
The report led to an updated legislative and regulatory scheme governing aquaculture in Nova Scotia in 2015, and the moratorium on new open net pen sites was lifted the following year. Environmental groups criticized the new legislation and regulations for not going far enough to address the concerns raised in the report.
In October 2016, Kelly Cove submitted an application to the Department of Fisheries and Aquaculture (DFA) to expand its lease boundary at the Rattling Beach site. Applicable regulations required the DFA to move the application through the approval process and refer it to the Aquaculture Review Board (ARB) for public hearing. Instead, without announcing receipt of the application publicly, DFA sat on the application for more than four years while Kelly Cove continued to operate the site unlawfully. The lease expansion application was finally heard by the ARB in November 2021.
Despite concerns voiced by members of the public and local First Nations communities, neither the Department of Fisheries and Aquaculture nor the Department of Environment took any real action to enforce the lease boundaries at any of Kelly Cove’s sites, several of which remain noncompliant.