Cooke Seafoods lands easy win in fish farming case

Cooke Aquaculture has won approval for a boundary expansion at its salmon farm outside Digby, N.S.

It was the first fish farming case heard by the Nova Scotia Aquaculture Review Board, a new regulatory body created by the provincial government to provide more transparency and accountability around aquaculture.

The decision legitimizes what has been taking place at the site for nearly two decades.

The 20-cage salmon farm has been operating outside the original — and much smaller — lease boundary for 18 years.

The provincial government has been aware of the situation for most of that time.

Cooke, through subsidiary Kelly Cove Salmon, did not ask to add more fish, cages or equipment.

Province shielded from questions

The board said the expansion had no effect on the eight factors it is required by regulation to consider. 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.

"As there are no new equipment, species, harvesting methods, yield, or structural change associated with the project, there can be no impact of the boundary expansion on any of the factors," the board wrote in a decision issued Friday.

During the hearing, the Nova Scotia government was shielded from questions about why it allowed the salmon farm to operate outside its lease boundary for so long.

The board shut down the line of inquiry.

"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 during public hearings in November.

Environment groups denied standing

Environmental groups opposed to fish farming had been denied standing in the application, which included three days of public hearings in Yarmouth, N.S.

The board said they had no direct stake in the case.

"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. Rather, we must consider this application (KCS/Rattling beach farm) in relation to this site, and the impact, if any, of changing the lease boundary," the board wrote.

The environmentalists alleged the three-member panel risked being a rubber stamp that allows governments to turn a blind eye to fish farm expansions

But the board found the company had been attempting to amend the boundary since 2008. Its efforts were repeatedly postponed by the province.

Cooke 'pleased' with outcome

"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 review board also rejected claims the fish farm infringed on Mi'kmaw rights and the boundary amendment triggered a duty to consult them.

Both positions were asserted by the Mi'kmaq Rights Initiative, also known as KMKNO. It is the negotiating arm of the Assembly of Nova Scotia Mi'kmaw Chiefs.

The board concluded there was a "'non-duty" to consult.

"The mere redrawing of the lease boundary could not be seen to have any potential adverse impact on First Nations' rights. If we are wrong in that regard, we conclude that consultation was at the very low end of the scale, and notice was sufficient to meet that duty," the board said.

"We also note that the impacts alleged by the KMKNO are vague, and non-specific as to potential adverse impacts on Aboriginal rights. For example, it does not explain how this ongoing operation has impeded traditional harvesting, and the exercise of traditional rights."

Environmentalist's claims scrutinized

The board was also skeptical of claims made by environmentalists.

Greg Hemming, a property owner who claimed to live 2.5 kilometres from the site, was granted intervener status. Cooke's lawyer later showed Hemming lived 14.5 kilometres away.

Hemming became a proxy for opponents and one of his witnesses was scientist Jonathan Carr, vice-president of research with the Atlantic Salmon Federation.

Carr acknowledged the company made improvements to the fish farm, but said there is not enough information to determine whether it has had or is having a negative impact on wild Atlantic salmon.

That did not sway the board as it considered the farm's impact on salmon.

"The board has heard an abundance of evidence that even before regulatory and statutory change (and since), this site has been well managed, and indeed, has strong mitigation efforts in place," the board wrote.

"Mr. Carr has produced no evidence that the dimensions of the Rattling Beach farm as it now sits, without any change in its infrastructure or production, will have any impact on any local salmon population. He has shown however, the possibility of a risk to salmon by the presence of any salmon farm. We find that appropriate mitigation is in place to deal with potential damage."

Environmental groups to speak out

A coalition of environmental groups opposed to open net pen fish farming have scheduled a media briefing on Tuesday to "break down the decision, the NSARB process, and what it means for the future of huge industry expansion plans in Nova Scotia."

Cooke has announced plans to expand its operations in the province. A more significant application from the company is heading to the aquaculture review board at some point.

The company is seeking approval for a major expansion that would add 46 pens and increase capacity to 1.8 million salmon at its site in Liverpool Bay.

Simon Ryder-Burbidge of the Ecology Action Centre said he was not surprised by the board's decision.

"This was their first hearing, and it's clear that they're very constrained by a limited mandate," Ryder-Burbidge said in a written response to CBC News.

"It does make you wonder why all the participants had to spend so much time, energy and money over the foregone approval of an already existing boundary line. Hopefully we'll have a chance to address issues like this during the upcoming aquaculture regulatory review."

The province is in the midst of a review of the rules around aquaculture.

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