This talk of similarities and contrasts between terrestrial farming and open net-cage salmon farming in an aquatic environment – also brings-up other glaring inconsistencies – how Section 35(2) And 36(3) of the Fisheries Act are applied to other industries; but not open net-pen salmon farming.
First, what is Section 35(2) of the Fisheries Act?
Subsection 35(2) of the Fisheries Act states: “harmful alteration, disruption or destruction of fish habitat” such as: “spawning grounds and nursery, rearing, food supply and migration areas on which fish depend” is prohibited.
What is Section 36(3) of the Fisheries Act?
Section 36 (3) of the Fisheries Act states: “Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water”.
A "deleterious substance" is then defined as:
• any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water” which would include anti-louse treatments and anti-fouling chemicals for nets such as tin and copper compounds, or
• “any water that contains a substance in such quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water”.
Sea lice and their free-swimming juvenile stages, as well as other disease vectors are a “biological attribute” of fish habitat, and an increase in background levels that affect the long-term health of one or more fish stocks would be at the very least a “harmful alteration” or even a “destruction”, dependent upon scope and longevity of the problem. Krkosek's and Ford's peer-reviewed scientific papers prove this (yes they do sockeyefry).
It is routine that DFO inspects and often charges various industries that destroy habitat or release deleterious substances into fish-bearing waters. Mines sites, pulp mills, construction zones, and forestry harvest areas are frequently visited and all of these industries have been charged under sections 35(2) or 36(3); as applicable, when necessary:
http://www-heb.pac.dfo-mpo.gc.ca/habitat_policy/enforcing_the_act_e.htm
Yet the open net-cage salmon farming industry - the only industry IN THE WATER – is the only industry which has not yet been successfully charged under sections 35(2) or 36(3). Why?
Why is it if you let clean rinse water from a net-washing operation leach into a creek, you are in contravention of section 35(2) (HADD) and/or Section 36 (3) (deleterious substance), while if you load it up with dripping, fresh toxic chemicals; it’s okay to set it out front of that same creek in the ocean on a pen, with thousands of more interactions, risk and impacts to deal with?
Why is it that to date, this has not happened with the open net-cage operations for sea lice releases or toxic chemical releases? Why has “HADD” not been applied there?
Maybe it is because if a “HADD” is triggered by the review of the site application by FOC managers, a Canadian Environmental Assessment (CEA) is initiated – a full assessment, or even a panel review with mandatory public involvement and scoping (determining geographic boundaries of impacts) during the assessment process.
DFO managers are however, required to review the following when reviewing aquaculture tenure applications:
1. Is fish habitat present at the project site or in an area potentially impacted by the project?
2. Could the proposed project cause of “Harmful Alteration, Disruption or Destruction” (HADD) of fish habitat?
3. Can the impacts to fish habitat be fully mitigated?
4. Should the HADD be authorized?
5. Can the HADD be compensated?
Fish habitat is then defined as “those physical, chemical and biological attributes of the environment (e.g. substrate type and structure, aquatic macrophytes, water depth, water velocity, water temperature, dissolved oxygen, riparian vegetation, etc.) which are required by fish to carry out their life processes (e.g. spawning, nursery, rearing, feeding, overwintering, migration)”.
Although not defined in the Fisheries Act, HADD of fish habitat is defined in the “Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat” as:
“any change in fish habitat that reduces its capacity to support one or more life processes of fish. In assessing a project proposal for its potential to cause a HADD, habitat managers identify changes to the bio-physical attributes that would be of a type and magnitude sufficient to render the habitat less suitable, or unsuitable, for supporting a fish’s life processes.”
There are also additional relevant sections within the Fisheries Act:
Section 78.2 of the Fisheries Act states: “Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted.”
Section 32 of the Fisheries Act states: “No person shall destroy fish by any means other than fishing except as authorized by the Minister or under regulations made by the Governor in Council under this Act”.
Appendix 6 of the Fisheries Act Guide identifies unacceptable HADDs for which DFO would not issue a subsection 35(2) Fisheries Act authorization’s for habitat such as spawning areas, or restricted migration routes, etc. Migratory routes are not identified in the current CEAA screening process. Why?
I guess the aquaculture bunch within DFO has noticed this embarrassing contradiction. Their first recommendation is to:
“It is recommended that the federal government establish regulations pursuant to S. 36 of the Fisheries Act to authorize the deposition of deleterious substances in relation to aquaculture operations under prescribed circumstances and protocols.”, see:
http://www.dfo-mpo.gc.ca/Aquaculture/ref/Recommend_e.htm#3a
The auditor General is also very concerned about this process:
http://www.oag-bvg.gc.ca/internet/English/esd_pet_054_e_28761.html
I believe we have a bunch of criminals in DFO reviewing the site applications and “managing” the industry. Anyone else similarly shocked?