Abstract
Mass farmed fish die-offs and escapes have brought attention to the aquaculture industry and raised concerns about whether the law regulating this industry is adequate to protect fish and the environment in which they live. Focusing on a “mass asphyxiation” mortality event that took place in Newfoundland, Canada, at the end of the summer of 2019, this chapter will survey some of the issues related to animal welfare and the “green harms” raised by this incident with an eye to the wider implications for fields of law relating to nonhuman animals and the environment. One would think that the law would be protective toward the vulnerable interests of these entities. What we find, on the contrary, is weak law and what law there is facilitating government-supported industry use. This case study demonstrates that the law is failing to protect nonhuman animals, specifically fish, reflecting and reinforcing their poor regard, and leaving them to a terrible fate.
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Notes
- 1.
Holly McKenzie-Sutter, “Mass salmon die-off in Newfoundland,” Canada’s National Observer, October 13, 2019, https://www.nationalobserver.com/2019/10/13/news/mass-salmon-die-newfoundland.
- 2.
Fisheries and Marine Institute, Memorial University of Newfoundland, A Review of the 2019 Newfoundland and Labrador South Coast Cultured Atlantic Salmon Mortality Event, March 16, 2020, Executive Summary, 3, https://www.gov.nl.ca/ffa/files/publications-pdf-2019-salmon-review-final-report.pdf [MUN Report].
- 3.
Ibid., Conclusion #1, 19.
- 4.
Ibid., Executive Summary, 3.
- 5.
Ibid., 20, point #6. If you are trying to imagine what kind of space we are talking about, each net pen is 100 m in circumference and is fifteen meters (i.e., about 50 feet) deep. See ibid., 11.
- 6.
Ibid., 19. This was the “hypoxic squeeze hypothesis,” which the report adopted over the “temperature hypothesis” and the “disease hypothesis,” and was described in the following way: “an unusual set of natural environmental conditions triggered a series of events that lead to mass asphyxiation of salmon, with up to 100% mortality at some sites.” The three hypotheses are laid out at p. 8. The Terms of Reference on p. 6 set out that six of the sites had 100% mortality rate, with most fish dead by Monday September 2 (mortality for the first site was reported to the provincial government on August 28). The remaining four sites were added to the official mortality event on October 11 and they had partial mortality by that time, 30–50%.
- 7.
S. 2 (1)(a), An Act Respecting the Health and Protection of Animals, SNL2010 Chapter A-9.1, amended 2013 cl, https://www.assembly.nl.ca/legislation/sr/statutes/a09-1.htm#9.
- 8.
See ibid., ss. 2(4) and 18.
- 9.
S. 2(b), Wild Life Act, RSNL 1990, Chapter W-8, https://www.assembly.nl.ca/legislation/sr/statutes/w08.htm.
- 10.
S. 18(3), An Act Respecting the Health and Protection of Animals.
- 11.
S. 3(a), An Act Respecting the Encouragement and Regulation of an Aquaculture Industry in the Province, RSNL 1990 Chapter A-13, https://www.assembly.nl.ca/Legislation/sr/statutes/a13.htm#4.
- 12.
Reference re Offshore Mineral Rights, [1967] S.C.R. 792. The United States, motivated by the desire to protect its offshore oil production, declared in 1945 that the country had the right to control mineral sources on its continental shelf. “No one had ever owned a continental shelf” before and given that “cod and most other commercial fish are mostly found on continental shelves, the implications for fishing were enormous” (Kurlansky, 1997, p. 160). Other countries, including Canada, followed the US lead, which eventually led to the United Nations Law of the Sea to set out a twelve-mile territorial sea and 200-mile “exclusive economic zones” which Canada started patrolling in 1977 (Wildsmith, 1982a, p. 17).
- 13.
See Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86, https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/5159/index.do.
- 14.
The judge ordered a temporary suspension of invalidity of most of the provincial legislation in order to give the federal and provincial government time to fix the problem. See Morton v. British Columbia (Agriculture and Lands) 2009 BC SC 136, https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc136/2009bcsc136.html (Morton v. B.C. [S.C. 2009]). The 1988 agreement is available here: https://www.gov.nl.ca/ffa/files/department-pdf-canada-nl-memorandum-understanding-aquaculture-dev-1988.pdf.
- 15.
Morton v. B.C. (S.C. 2009), paras. 172, 173.
- 16.
Ibid., paras. 159, 160. The example given was an agreement similar to the 1912 Oyster Fisheries Agreement under the authority of an Order in Council delegating authority from Parliament to the province to grant farm licenses. See para. 186.
- 17.
See Government of Canada, “Aquaculture in British Columbia,” https://www.dfo-mpo.gc.ca/aquaculture/pacific-pacifique/index-eng.html. See also the Pacific Aquaculture Regulations, SOR/2010-270, https://laws-lois.justice.gc.ca/eng/regulations/SOR-2010-270/.
- 18.
See Frederick Gerring Jr. (The) v. R. (1897) 27 SCR 271. In the Gerring case, the Supreme Court of Canada upheld the seizure of an American ship caught “fishing” within the three-mile limit of Nova Scotia despite the fact that the fish were netted outside the limit and the crew were only bailing the fish in impermissible waters. Key to the three-judge majority ruling was the fact that the fish were not yet reduced to capture and many did and would escape in the bailing process. I am working on a co-authored book-length study of this case.
- 19.
Pierson v. Post, 3 Caines Reports 175 (1805) (NY SC). See Fernandez (2018, pp. 264–268) (discussing the Gerring case and its adoption of the capture rule).
- 20.
See Young v. Hitchens, (1844) 6 Q.B. 606, 115 E.R. 228.
- 21.
See s. 5(1) of the Newfoundland Aquaculture Act declaring that all aquatic plants or animals specified in the aquaculture license, while contained within the boundaries of the site, are “the exclusive personal property of, and belong to, the licensee”; s. 5(2) specifies that if any of these aquatic animals escape, they “shall remain the exclusive personal property of the licensee while within 100 m of the boundary of the site.” Wildsmith’s s. 28 used the language “the exclusive property of the lessee” (see Wildsmith, 1982a, p. 257). In 1996, s. 61 of the Nova Scotia statute used the “exclusive property” language, extending it also to escapes within 100 m. See Fisheries and Coastal Resources Act, RNS 1996, c. 25, https://www.canlii.org/en/ns/laws/stat/sns-1996-c-25/latest/sns-1996-c-25.html. This structure was carried over from the 1983 statute, which tracked Wildsmith’s proposal carefully, including his language of “aquatic flora and fauna.” It did not, however, specify, as he recommended in his s. 30, that “any person may, beyond one hundred metres” of release or escape “capture and appropriate for his own use” any fish released into or escaping to the natural environment, with two more provisions relating to interfering with fish on a farm (taking, appropriating, converting, or otherwise destroying or injuring, removing or mutilating) without the consent of the owner. See Wildsmith, 1982a, p. 258; ss. 17 & 18, An Act Respecting the Encouragement and Regulation of Aquaculture, 32 Eliz. II, SNS 12 1983, c. 2, The New Brunswick Act in 1988 used the “exclusive property” language but only while the animal is “contained within the boundaries of the aquaculture site.” See s. 16(5), Aquaculture Act SNB 1988, c A-9.2, https://www.canlii.org/en/nb/laws/stat/snb-1988-c-a-9.2/latest/snb-1988-c-a-9.2.html. This act was repealed in 2011. However, this provision was kept the same. See s. 22, Aquaculture Act, RSNB 2011, c. 112, https://www.canlii.org/en/nb/laws/stat/rsnb-2011-c-112/latest/rsnb-2011-c-112.html.
- 22.
See Morton v. Marine Harvest Canada Inc., 2009 BCCA 481, https://www.canlii.org/en/bc/bcca/doc/2009/2009bcca481/2009bcca481.html?autocompleteStr=Morton%20v.marine%20harvest&autocompletePos=1. Hinkson J. held the line, stating that he “made no finding … as to the ownership of the fish. I do not consider it necessary to resolve the matter in order to rule on the petition” (para. 38). A decision of “the extent and nature of the property rights in the fish … should be left for another day when it can be reached on a complete evidentiary record and a full argument on the issue” (para. 46). See Morton v. B.C. (Agriculture and Lands), 2010 BSC 100, https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc100/2010bcsc100.html?resultIndex=3T. The east coast laws that restrict the public right to fish by giving “exclusive” property rights to escaped salmon within a 100 m of the net pens are likely unconstitutional because “[o]nly Parliament can enact competent legislation to create an exclusive fishery in tidal waters” (see Clarkson, 2014, pp. 126, 133).
- 23.
Infectious salmon anemia virus (ISAv) was found at two of the ten sites, one before and one six weeks after the mortality event (MUN Report, 16). I am not going to deal with this disease, however, as the controversies surrounding it could fill a book (and do fill much of Morton’s). Chile had a serious problem with ISAv in 2011 when it killed millions of fish and cost the industry $2 billion. See Alexei Barrionuevo, “Norwegians concede a role in Chilean salmon virus,” New York Times, July 27, 2011, https://www.nytimes.com/2011/07/28/world/americas/28chile.html. Those interested in “ag gag” legislation might take note of Bill 37, a 2012 attempt by the British Columbia government to criminalize the reporting of animal diseases, including a reportable fish disease such as ISAv, punishable by two years in jail and a fine of $75,000. It did not pass. See ss. 17 and s. 90(1)(b) of the proposed Bill 37-2012 Animal Health Act, https://www.bclaws.gov.bc.ca/civix/document/id/lc/billsprevious/4th39th:gov37-1. On this bill and the controversy around the lengths, the Department of Fisheries and Oceans (DFO) and the Canadian Food Inspection Agency went to not confirm there was ISAv in British Columbia, see Salmon Confidential, dir. Twyla Roscovich, October 2, 2013, https://topdocumentaryfilms.com/salmon-confidential/.
- 24.
“Warm water, not sea lice, caused massive salmon die-off, says chief vet,” CBC News, October 1, 2019, https://www.cbc.ca/news/canada/newfoundland-labrador/warm-water-salmon-die-off-1.5302950.
- 25.
See MUN Report, 15 (explaining that the Aquatic Health Division veterinary report provided to them on February 7, 2020 “included limited information about sea lice infestations, other than noting that average sea lice counts were below 6 adult females per salmon per site”; the company’s data “showed that average counts were below 2 on all but two of the sites in late July/early August”).
- 26.
Ibid., 19.
- 27.
The chemical name is Emamectin Benzoate. See Morton v. B.C. (S.C. 2009), para. 54.
- 28.
See Robin Levinson-King, “Inside Canada’s decades-long lobster feud,” BBC News, October 19, 2020, https://www.bbc.com/news/world-us-canada-54472604.
- 29.
See World Wildlife Fund, “Southern Resident Killer Whale,” https://wwf.ca/species/southern-resident-killer-whales/. For a short moving documentary on the plight of this species of whale, see “Coextinction,” dirs. Gloria Pancrazi and Elena Routledge, https://www.storyhive.com/projects/3820#project_video.
- 30.
This appears to be a typo for Gerald Bowen (no d), Coastal Aquaculture Law and Policy: A Case Study of California (Boulder, CO.: Westview Press, 1981), a book Wildsmith reviewed favorably in the journal Marine Policy (Wildsmith, 1982b).
- 31.
Giving estimates of uneaten food and waste and explaining that they cause “hypernutrification” on the seabed floor and “[t]he constant loading of feed and waste on the seabed can result in high levels of sulfur, creating a desert where a benthic community previously existed” (Clarkson, 2014, p. 88). Sulfur overload will lead to increased mortality for surrounding animals, as the bacteria that cause the decomposition of the feed and waste consume oxygen, which is depleted when the sea bed is overloaded with nutrients. This is known as “anoxic” condition (p. 91).
- 32.
See Greg Mercer, “Newfoundlanders raise a stink after as many as 1.8 million dead farmed salmon are dumped on south shore,” The Globe and Mail, October 8, 2019, updated October 9, 2019, https://www.theglobeandmail.com/canada/article-newfoundlanders-raise-a-stink-after-18-million-dead-farmed-salmon-are/.
- 33.
MUN Report, 22. A low estimate given the numbers of fish involved.
- 34.
Ibid., 24–25.
- 35.
Mi’kmaq Alsumk Mowimsikik Koqoey Association (MAMKA), Post Event Environmental Monitoring of the High Temperature Mortality Event in Fortune Bay: Final Report, April 24, 2020, ii, http://mamka.ca/wp-content/uploads/2020/04/04_24_20-MAMKA-Northern-Harvest-Mortality-Event-2019-Final-Report.pdf.
- 36.
See Simon Little and Paul Johnson, “Environmentalists, fish farm spare over mass fish die-off at Vancouver Island facility,” Global News, November 25, 2019, https://globalnews.ca/news/6217229/environmentalists-fish-farm-die-off-vancouver-island/. An astonishing number of penned salmon, thirty-nine million, are reported as having died from a toxic algal bloom they could not swim away from in Chile. See Andrew Nikiforuk, “Harmful Algal Blooms Kill Farmed Salmon Near Tofino,” The Tyee, November 20, 2019, https://thetyee.ca/News/2019/11/20/Algal-Blooms-Tofino/ (surveying massive algal bloom suffocations in Norway, Scotland, and Chile, in addition to the events in Clayoquot Sound and Newfoundland).
- 37.
An Act Respecting Fisheries, R.S.C., 1985, c. F-14, https://laws.justice.gc.ca/eng/acts/F-14/page-8.html#docCont.
- 38.
See ibid., s. 34(1)(a) and (b) (“any substance that, if added to water, would degrade or alter […] the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat” or “any water that contains a substance in such quantity or concentration […] that it would if added to any other water, degrade or alter […] the quality of that water so that it is rendered or is likely to be rendered deleterious to any fish or fish habitat”).
- 39.
MUN Report, 30.
- 40.
Ibid. The interpretation was based on s. 13(1) of the Aquaculture Activities Regulations, SOR/2015-177, https://laws.justice.gc.ca/eng/regulations/SOR-2015-177/page-1.html#docCont setting out that “fish morbidity or mortality” triggered a reporting requirement for the facility owner only for deaths “outside the aquaculture facility” observed from any part of the facility. However, this provision only applies to the situations of deposits of drugs or pesticides in s. 2(a) and (b), not (c) the “biochemical oxygen demanding matter” (BODM).
- 41.
See s. 7, An Act Respecting Environmental Protection, SNL 2002 Chapter E-14.2, https://www.assembly.nl.ca/legislation/sr/statutes/e14-2.htm. However, s. 12(a) allows the Minister to “classify or allow the releases of substances.” S. 4(2) permits an approval “under another enactment” if it is stated in the regulations. The regulations may cover releases of substances. See s. 111(1)(b). According to the Office of the Information and Privacy Commissioner, the Department of Municipal Affairs and Environment played a limited role in the mass mortality event, specifically, confirming through its Pollution Prevention Division with the Department of Fisheries and Land Resources that mortalities would be disposed of at approved facilities (Harvey, 2020, p. 4, para. 5).
- 42.
MUN Report, 30.
- 43.
See Aquaculture Activities Regulations, s. 2.
- 44.
MUN Report, 30.
- 45.
See ibid., s. 8(1)(a). The provision does not apply if the facility’s license “permits a maximum standing biomass of 2.5 t or less or a maximum annual production of 5 t or less.” See s. 9(2). The licenses in question likely do not meet this exception, as these numbers indicate very small operations.
- 46.
Fisheries and Land Resources, “Public Advisory: Provincial Government Reinstates Northern Harvest Sea Farms Aquaculture Licenses,” May 6, 2020, https://www.gov.nl.ca/releases/2020/flr/0506n02/.
- 47.
MUN Report, 22.
- 48.
Ibid., 30. See Aquaculture Activities Regulations, s. 4.
- 49.
MUN Report, Final Recommendations 1(b), 33.
- 50.
Ibid.
- 51.
See Owen Evans, “NL’s fisheries minister says Northern Harvest lost ‘no more than 2 million fish’ and ‘would caution before anyone draws a conclusion on photos,’” Salmon Business, October 10, 2019, https://salmonbusiness.com/nls-fisheries-minister-says-northern-harvest-lost-no-more-than-2-million-fish-and-would-caution-before-anyone-draws-a-conclusion-on-photos/.
- 52.
The request was made on March 16, 2021 (amended March 17) and denied on April 13, 2021. See https://atipp-search.gov.nl.ca/public/atipp/requestdownload?id=15005.
- 53.
MUN Report, Final Recommendations 1(a), 33.
- 54.
Ibid., Executive Summary, 3.
- 55.
See Lynda V. Mapes, “Fish farm caused Atlantic salmon spill near San Juans,” The Seattle Times, January 30, 2018, https://www.seattletimes.com/seattle-news/fish-farm-caused-atlantic-salmon-spill-state-says-then-tried-to-hide-how-bad-it-was/.
- 56.
MUN Report, Recommendation #4, 34.
- 57.
Ibid., Recommendation #5, 34.
- 58.
Ibid., 36.
- 59.
Ibid., 22.
- 60.
Aquaculture Act, s. 6(3)(b).
- 61.
See Lynda V. Mapes, “State kills Atlantic salmon farming in Washington,” The Seattle Times, March 2, 2018), https://www.seattletimes.com/seattle-news/politics/bill-to-phase-out-atlantic-salmon-farming-in-washington-state-nears-deadline/. It must be noted that the bill only applies to non-native fish. See Wash. Rev. Code, Title 79, Ch. 79.105, s. 79.105.170, https://app.leg.wa.gov/RCW/default.aspx?cite=79.105.170.
- 62.
Mapes, “Fish farm caused Atlantic salmon spill near San Juans”.
- 63.
License # AQ15-LIC-0885, for a twenty-hectare farm in McGrath Cove South, Belle Bay, Lease # C-119897, https://atipp-search.gov.nl.ca/public/atipp/requestdownload?id=8845 (see pp. 18–19 of the 241 page PDF obtained via an October 31, 2018 Access to Information request). Licenses are not made publicly available, except in Quebec (see https://www.mapaq.gouv.qc.ca/Fr/Peche/md/Services/Pages/etablissementspermis.aspx). Lack of transparency is a serious problem at the present time when a public access request can take months and changes in licensing conditions can be made without notice. See Clarkson (2014, p. 168). See also s. 4(3)(f) of the Aquaculture Act, which requires the licensing application to state that the operation will be conducted “with diligence, in a reasonable manner and in accordance with standards, practices, and procedures set by the Minister.” The AAHD is the Aquatic Animal Health Division of the provincial Department of Fisheries and Land Resources.
- 64.
Information obtained by Research Assistant River Sommerhalder.
- 65.
See ss. 4(6)(b), (f) and (g) of the Aquaculture Act.
- 66.
See interview “Alexandra Morton: Why Salmon are Sacred,” The Green Interview, October 2011, https://thegreeninterview.com/interview/morton-alexandra/.
- 67.
For one such Tlingit teaching, see Shanyaak’utlaax: Salmon Boy (February 6, 2019), https://www.youtube.com/watch?v=iGH8cmKKZ78.
- 68.
See McGregor (2018, p. 282), explaining how lands and waters are relatives or teachers in Anishinaabe knowledge systems. See also Salmón (2000, p. 1327) on “kincentric ecology” understood in part as the insight from Indigenous people in North America “that life in any environment is viable only when humans view the life surrounding them as kin”.
- 69.
Newfoundland and Labrador, Fisheries and Land Resources, Aquaculture Policy and Procedures Manual September 2019, “AP-17—Public Reporting,” ss. 4 and 8, pp. 61–62 (revised October 10, 2019 and November 4, 2019), https://www.gov.nl.ca/ffa/files/licensing-pdf-aquaculture-policy-procedures-manual.pdf. The licenses already required reporting to the Aquatic Animal Health Division “[m]ortality and morbidity events greater than 0.05% per day for three consecutive days or greater than 400 kg of 2% of the inventory over a 24-h period or greater than 10,000 kg or 5% of the inventory over a 5-day period.” See Condition #6, License # AQ15-LIC-0885.
- 70.
See Aquaculture Policy and Procedures Manual, s. 11(f), p. 62. The MUN Report is critical of the policies in this manual for being too vague (see pp. 31–32).
- 71.
Minister Byrne said, at least initially he did not make a public disclosure regarding the incident, as he understood (incorrectly it turned out) that he would be in violation of the Access to Information and Protection of Privacy Act, S.N.L. 2015, c. A-1.2. See Harvey (2020, 10, para. 26). This is the same legislation relied on to deny the Access to Information request as to maximum stocked populations. Hence, despite the Privacy Commissioner’s decision, the Department appears to be continuing to rely on a capacious understanding of what it would mean to release information that would harm the business interests of MOWI.
- 72.
MUN Report, 31.
- 73.
Aquaculture Policy and Procedures Manual, s. 7, pp. 61–62.
- 74.
Ibid., “AP-40—Integrated Pest Management Plans—Including Sea Lice Management Plans,” s. 7, pp. 118–119.
- 75.
Wildsmith speaks about the important role that insurance will need to play in the industry. See Wildsmith (1982a, pp. 128–130). At the time of writing, there was only one insurance company in Halifax that would provide aquaculture insurance. See 134, n. 47. It is almost quaint.
- 76.
A diver was injured in the 2019 Newfoundland event. See “Diver Airlifted from Salmon Clean-Up in Fortune Bay, Work-Stop Order Issued,” CBC News, October 7, 2019, https://www.cbc.ca/news/canada/newfoundland-labrador/stop-work-order-fortune-bay-1.5311394. There was quite a lot of attention to this aspect of the event. See e.g., “As Diving Resumes at Salmon Die-Off Site, Doctor Wants More Action to Avoid Decompression Sickness,” CBC News, October 10, 2019, available at https://www.cbc.ca/news/canada/newfoundland-labrador/diving-compression-sickness-treatment-improvements-1.5315927. Most of the twenty divers brought in to help the usual two company divers had never dived in a fish pen (MUN Marine Institute Report, p. 24). The Report noted that “diver safety was a major concern” but did not mention the injury or the work stop-order and its impact on the company’s response time in terms of mort removal.
- 77.
S. 4(15) of the Aquaculture Act allows the Minister to cancel the license but only where directives relating to the maintenance of the site have not been followed, there are repeated breaches for which there have been suspensions under s. 4(10), or if the licensee stops owning or holding a lease or right of occupancy for the site, perhaps if they were to sell or transfer it.
- 78.
There are provisions for penalties in ss. 15 and 16 of the Aquaculture Act (fines not exceeding $5000 and/or imprisonment of not more than six months, as well as administrative penalties). These can apply in situations in which a person knowingly provides false or misleading information. However, there must be a duty to provide the information in the act or under the regulations, which were not there before the new Policy Manual was adopted. See s. 14(e).
- 79.
See Salmonid Association of Eastern Newfoundland v. Her Majesty the Queen in Right of Newfoundland and Labrador, 2020 NLSC 34, para. 109, https://www.canlii.org/en/nl/nlsc/doc/2020/2020nlsc34/2020nlsc34.html?resultIndex=1 (the statute is the Species at Risk Act, S.C. 2002, c. 29). This case, brought by the group Ecojustice just one month after the mass mortality event resulted in another Northern Harvest (MOWI) fish farm in Newfoundland being ordered to conduct an environmental assessment of the impact of expanding its operations in Stephenville.
- 80.
The program is called “Aboriginal Aquatic Resource & Oceans Management.” See MAMKA Report, Executive Summary, p. i.
- 81.
MUN Report, p. 8.
- 82.
Aquaculture Policy and Procedures Manual, “AP 42—Animal Welfare,” s. 1, p. 122.
- 83.
See MUN Report, Recommendation 6, 34. The Report refers to “the next ME [mortality event],” “future ME [mortality events],” and “similar future events” (27, 27 and 28, 28).
- 84.
See Aquaculture Policy and Procedures Manual, “AP 42—Animal Welfare,” ss. 2 and 3, p. 122. These provisions require the facility’s designated veterinarian perform the euthanasia or employees overseen and instructed by that veterinarian using the “[p]roper tools necessary for humanely euthanizing animals”.
- 85.
See the Final Report of the European Commission, Welfare of Farmed Fish: Common Practices During Transport and at Slaughter, September 2017, s. 9.2 “Canada,” http://publications.europa.eu/resource/cellar/facddd32-cda6-11e7-a5d5-01aa75ed71a1.0001.01/DOC_1.
- 86.
See ibid., Executive Summary, 6.
- 87.
Ibid.
- 88.
The Animal Protection Regulations are made pursuant to ss. 29 and 66 of the Animal Health and Protection Act. See ss. 11(e) and 11(j), Newfoundland and Labrador Regulation 2012, https://www.assembly.nl.ca/legislation/sr/annualregs/2012/nr120035.htm. However, s. 29 is in Part II, which does not apply if farmed salmon are considered (anadromous) fish under the Wildlife Act (as explained at the outset of the chapter) and s. 66 is in Part VI, which does include fish as a protected animal.
- 89.
“Positive animal welfare” focuses on an animal’s individual experience without respect to their human-centered utility. The idea is that animals need positive experiences to have a normal life and appreciate what they lose when confined and manipulated in terms of culture, sense of self, personality, social bonds, cognitive potential, autonomy, play, and curiosity. Becca Franks, “Positive Animal Welfare for Aquatic Animals,” Canadian Animal Law Conference, September 13, 2020.
- 90.
See Paul Withers, “Liberal promise to end open-pen salmon farms in B.C. making waves on east coast,” CBC News, October 1, 2019, https://www.cbc.ca/news/canada/nova-scotia/liberal-promise-open-pen-salmon-farms-bc-canada-1.5303565. The promise has been scaled back to a commitment to develop a plan to transition away from the open net but they will not be removed by that date. See Sarah Cox, “Trudeau government backpedals on election promise to phase out B.C. open net salmon farms by 2025,” The Narwhal, February 13, 2020, https://thenarwhal.ca/trudeau-government-backpedals-on-election-promise-to-phase-out-b-c-open-net-salmon-farms-by-2025/.
- 91.
Wildsmith noted that “one of the biggest expenses in many aquaculture operations is feeding the aquatic stock being cultivated,” citing from a Report of the FOA Technical Conference on Aquaculture, Kyoto, Japan, 26 May–2 June 1976, estimating that 40% to 70% of the operating cost of most aquaculture operations is for food (Wildsmith, 1982b, pp. 126, 134, n. 33). Morton thinks that bright lights are used on farms to attract herring and other marine life in order to help feed the salmon stock (Morton, 2021, pp. 258, 260). The industry claims that the salmon are too domesticated to hunt wild fish. However, how are they able to survive and be found upriver if they cannot do this? Morton’s footage from inside a pen showed them doing just this (p. 219). She also thinks herring are being caught and rendered into feed, which is illegal because the stocks are in a collapse and other herring fisheries are prohibited (p. 245).
- 92.
Alberta, Ontario, and Prince Edward Island all passed ag gag statutes in 2019 and 2020. Manitoba passed one in 2021. And there is a national bill in the works. See Animal Justice, “Fighting Canada’s dangerous ‘Ag Gag’ laws,” September 10, 2020 (updated April 2021), https://animaljustice.ca/blog/fighting-canadas-dangerous-ag-gag-laws. See also Lazare, 2020.
- 93.
See their video “Aquaculture: A Sea of Suffering”. https://animaloutlook.org/investigations/.
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Acknowledgement
The author wishes to thank the members of the Brooks Institute for Animal Rights, Law and Policy 2021 Summer Academic Workshop, especially Jennifer Jacquet and Becca Franks. Thanks also to Angela Lee. The author also gratefully acknowledges the able research assistance of Clara Pencer, John River Sommerhalder, and Deniz Yilmaz. Sooin Kim of the Bora Laskin Law Library provided heroic reference support during the first and second Covid-19 lockdowns when this chapter was written. The editors were especially patient in waiting for the piece to be completed despite delays caused by that challenging time.
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Fernandez, A. (2022). Fish Farms in Canada: Where Is the Law?. In: Gacek, J., Jochelson, R. (eds) Green Criminology and the Law. Palgrave Studies in Green Criminology. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-82412-9_6
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