Introduction

Recently, the industry-friendly online publication Intrafish reported that the “world’s salmon farmers can’t get offshore fast enough” (Cherry 2022). The pressure to expand salmon production offshore, according to the article, was in response to several key socio-ecological pressures, including rising water temperatures associated with climate change, followed by more challenging algae blooms and sea lice infestations. Together, these problems increase the costs of operating in the near shore sites that have sustained farmed salmon production for more than five decades. They also explain recent alarmingly high mortalities among farmed salmon across Europe and North America (CBC 2019a). Moving production into deeper offshore waters also has the potential to diffuse protests by coastal communities and non-governmental groups on the environmental and social problems associated with salmon aquaculture production (Martin et al. 2021; Wiber et al. 2021). This and other Intrafish articles reflect a growing consensus between industry and policy makers on the potential of the offshore as a new frontier for aquaculture production (see also Sapin 2023; Fujita et al 2023). Canada’s emerging Blue Economy Strategy, for example, claims that future exploitation of ocean spaces will generate huge economic benefits (Mediaplanet 2021). The industry meanwhile claims that deep-sea aquaculture will not only generate wealth, but provide high-quality protein and address world hunger, while preventing the continued decimation of wild fish stocks (Wenhai et al. 2019; Knott and Mather 2021; Morro et al. 2021). Such rhetorical claims make aquaculture expansion into the deep sea seem inevitable.

Such offshore ambitions are not new, however; the potential for offshore aquaculture has been a focus of academic debate and policy discussion for some time (e.g., Skladany et al. 2007). Yet the debate is clearly intensifying as a result of dramatic ecological changes and in the context of the rapid adoption of Blue Economy policies. Much discussion focuses on the perceived obstacles to offshore fish farming and how these might be overcome. A consistent argument across different geographical contexts is that offshore aquaculture development has been hampered by a weak or non-existent regulatory environment (Tiller et al 2013). Tiller et al. (2013: 128), for example, have argued that the “lack of a regulatory framework in US federal waters has thus effectively prohibited aquaculture ventures and the expansion of the industry for domestic seafood needs.” Offshore aquaculture can be encouraged, some have argued, through “smart policy” that provides an “objective and predictable policy framework for offshore aquaculture permitting and regulation.” Lester et al. (2018: 7163) reflect a broad position in writing: “The opportunity is right beyond our shores. We just need to seize it.”

Our contribution provides a different approach to questions around offshore aquaculture development, which, despite being in its infancy (Fletcher 2022), shows familiar patterns of claims and counter claims. We situate our contribution within the growing body of work on ocean privatization (as exemplified by this special issue in Maritime Studies) and ocean grabbing (Bennet et al. 2015). The renewed interest in the privatization of ocean spaces parallels the increased interest in ocean development globally especially in areas beyond national jurisdiction that have up until now remained firmly part of the commons (Tsiouvalas and Evans 2023).

Critics of such ocean enclosures, such as Braverman (2023), DeLoughry (2023), Mendenhall and Hassanali (2023), and Probyn (2023), argue that extending capitalist extraction into the open ocean will expose the weaknesses of legal protections in these spaces. Many of these weaknesses relate in turn to social-ecological unknowns and unknowables (see, for example, Cao et al. 2023; Clay et al. 2023). Such weaknesses in legal protections where property rights are granted in aqueous spaces are the focus of this paper; a process that we argue is already visible in court cases involving inshore aquaculture. These cases demonstrate how property relations in actual social practices diverge from existing regulatory constraints and yet are legitimated through court decisions.

Our paper engages with the regulatory and legal issues associated with aquaculture’s offshore ambitions. We ask: do aquaculture’s offshore ambitions represent a new development in ocean grabbing and resulting privatization, or are they merely an expansion of existing industrial exploitation of the sea? Further, do these ambitions align with the transformative sustainability frameworks outlined by Blue Economies globally? As Foley and Mather (2019) have illustrated, ocean grabbing is a complex process involving multiple claimants and contestation. To this end, our focus is not on the small number of existing offshore aquaculture production sites, but instead, we undertake a detailed analysis of 30 years of court cases involving inshore aquaculture in Canada. Through these legal cases, we explore the complex relationship between claims to ocean spaces and the legal framework within which such claims are heard. We focus on how ocean property claims get adjudicated in court decisions and frame our work through an understanding of property as a complex and often-contested process. Framing property as the process is critical to our analysis and to our contribution to the debates on ocean privatization, as it illustrates how the privatization of ocean spaces is recognized and entrenched through decisions made in the courts. Thus, we explore how courts become important sites for the contestation and maintenance of corporate and political power structures. In doing so, we briefly explore how legal and other critical scholarship has engaged with alternative or transformative ways to address this through legal reform.

In what follows, we begin by challenging normative approaches to property and instead argue for property as a process, which begins with claims made using rhetoric, followed by counterclaims and contestation. Our interest here is the role the courts play in such property processes. To explore these questions in Canadian territorial waters, we first examined c 150 Canadian court cases which cover a 30-year period and multiple Canadian jurisdictions. We focus on 46 cases to argue that there are lessons here regarding the relationship between law and the regulation of nearshore industrial aquaculture. The analysis of these cases provides insights into the inflection points where the aquaculture industry has been challenged and in turn has retreated behind privatization defenses, through court proceedings. We end the paper by drawing on critical legal scholarship, which points to hopeful methods of transforming the law with direct relevance to ocean privatization and resource extraction.

Property as process

Following recent literature on property as an often-contested process (von Benda-Beckmann et al. 2006; García and van Dijk 2019; Ribot and Peluso 2009; Sikor and Lund 2009), we draw a straight line from rhetoric (oceans as economic frontiers) to ocean access (permits and leasing), followed by disputes triggered by such enclosure and ultimate privatization. Foundational to a processual understanding of property is the recognition that property enters social phenomena at multiple levels, not all of them congruent. As von Benda-Beckmann et al. (2006, 15) point out, property exists in cultural ideals and ideologies, in legal institutions, in actual social relationships, and in social practices. How property operates at these different levels can vary such that the social unit holding property, the property object itself, and the rights and responsibilities attached to that relationship may not closely match preconceived ideas, or even what is laid down in legal rules and regulations.

Property claims often begin with rhetorical devices (García and van Dijk 2019; Rose 1994). The rhetoric around the Blue Economy, for example, falsely relies on a frontier imaginary of empty space—an empty space that deep-sea aquaculture will make use of in order to address environmental and food sustainability concerns. In fact, however, such aqueous spaces are already heavily utilized to meet human objectives. Thus, Blue Economy rhetoric can be usefully viewed through the critical literature on frontiers in colonial and capitalist expansion (see Lounela and Tammisto 2021). The frontier imaginary allows states to maintain and (re)create territories through processes of space-to-place making. Rasmussen and Lund’s (2018) term frontierization refers to a specific type of territory building that is connected not just to spaces deemed empty for conquering but also to capitalist exploitation of nature via resource-making and technological solutions. As Rasmussen and Lund (2018, 389) explain, “the frontier is not a purely spatial construct but a political, economic, and social one related especially to capitalist appropriation of space.”

Recently, such frontier rhetoric has become part of “a broader restructuring trend of the resource property question” (Alonso-Fradejas 202: 2), wherein claims are made to natural resources based on projected equity and sustainability outcomes. For example, Keen et al. (2018: 333) state: “The Blue Economy aims to balance sustainable economic benefits with long-term ocean health in a manner which is consistent with sustainable development and its commitment to intra- and inter-generational equity.” When successful, such rhetorical claims open the door to state-sanctioned access where no access previously existed but also creates contestation, counterclaims, and resistance such that “access and property are not fixed entities, but have to be maintained” (García and van Dijk 2019: 3). As part of that maintenance process, and as a significant point of legitimization, we focus here on the role of the courts, using cases involving inshore salmon aquaculture.

In terms of ocean areas under state management, such as the near shore and the exclusive economic zone (EEZ), state law offers several land-based mechanisms to grant access to these aqueous frontiers, thereby creating for itself the authority over the management of such spaces. Schlüter et al. (2020) explore the “existing transferable institutional structure” that can be deployed in ocean spaces. In the nearshore, the transferable institutions have been in the form of leases and permits, a regulatory structure already appearing within the offshore. Such leases include both access to the water column, where nets and cages will be placed, and also to the ocean floor, where mooring is required to fix these cages in place. Examples of expanding ocean exploitation through these land-based mechanisms can be found in both the developed and developing world. For example, in the USA, the National Oceanic and Atmospheric Administration (NOAA) has recently completed mapping of favorable sites for deep-sea aquaculture in the US EEZ zone, simultaneously acknowledging the “land rush” into ocean spaces and attempting to regulate it as to place. Meanwhile, other countries are negotiating access rights within their EEZ with corporate actors; thus, the CEO of Forever Oceans recently announced having secured 20-year leases on over 200,000 ha of ocean space for grow-out operations in Panama, Indonesia, and Brazil (Fletcher 2022).

States have agreed to extend such authority into the “high seas” through an international treaty known as the BBNJ (Biodiversity Beyond National Jurisdiction) (Mendenhall and Hassanali 2023). This agreement, adopted on 19 June 2023, adds to the United Nations Convention on the Law of the Sea (UNCLOS), the legal framework under which all activities in the ocean theoretically take place. It aims to protect the ecological diversity of at least 30% of the high seas and sets out conditions for exploitation, such as environmental impact assessments (see United Nations 2023).

Leasing three-dimensional ocean spaces in the nearshore (through the legal enclosure of the water column above submerged land) has generated many disputes, as have the aquaculture operations within them. These inshore disputes and how they are heard in court can tell us much about how an offshore industry might be regulated. Finally, exploring the relationship between law and aquaculture suggests a great deal about extractive capitalism and the future role of privatization in the Blue Economy.

The Blue Economy imaginary involves the recognition of deep-sea aquaculture as possible and desirable for achieving transformative sustainable development but requiring new spaces and technologies, as well as innovations in institutions and rules. However, if developed along existing national and international policy directions, these innovative institutions and rules will constrain our understanding and uses of ocean spaces as they become fixed parts of corporate holdings. We call attention to crucial barriers to sustainability and effective governance through what we are calling jurisdictional opaqueness in regulatory issues. The results include poor regulation and overlapping or contested jurisdictions, which relates in turn to inadequate consultation, frequent environmental problems (toxic chemicals, anoxia, salmon escape, marine debris), and scientific disputes. These Canadian legal cases demonstrate not only the difficulty of enforcing regulation but also how corporate law arguments around property rights and economic benefits defuse local resistance to the enclosure of ocean commons.Footnote 1 We demonstrate that the courts—for a variety of complex and interrelated reasons—play a limited role in regulating what is a highly contested and controversial nearshore ocean industry.

As the aquaculture industry continues to expand offshore (Davies et al. 2019; Watson et al. 2022), we raise concerns about how (and by whom) the sector will be regulated given its highly industrialized and energy-intensive systems of production and its distance from coastal communities. Our analysis also contributes to scholarship on critical legal geographies that extend into spaces beyond those controlled by sovereign states and where the more-than-human is central to the problematic. Thus, who gets a voice and whose voice is heard are key to the possibilities of transformative change. Voice is important in our analysis because of the role that communities and other civil society groups play in legal cases to challenge and hold corporations accountable to government policies and sustainability goals. Voice is also vital to consider given that the vast majority of ocean inhabitants are not human and rarely heard in the courts. As the ocean is fluid and in constant movement, what is put into (or escapes) in one location (such as specific fish species, waste, chemicals) will travel to other locations, the ramifications of which may be felt quite far from the farm sites, impacting distant ocean coastal spaces and communities.

Methodology

Relying on the CanLII (Canadian Legal Information Institute) database of Canadian court cases, we downloaded c 150 cases involving aquaculture from different jurisdictions across Canada into our own database. Given Canada’s mix of legal traditions, these included cases heard before both civil (Quebec) and common law courts, as well as cases that dealt with Indigenous claims to land/ocean spaces and rights/claims to manage them under their own legal systems. The cases range from 1990 to 2021. Key search terms included “aquaculture” and the names of prominent aquaculture companies in Canada (Mowi, Northern Harvest, Marine Harvest, Cermaq, and Cooke Aquaculture and their subsidiaries such as Kelly Cove). Cases in our resulting database involve all jurisdictions (municipal, provincial, federal) and court levels as well as a plethora of dispute types. To narrow the field, and with some regret over the loss of interesting problems, we set aside cases involving taxation, insurance, liability, worker’s compensation claims, wage or benefits disputes, and bankruptcy. After further consideration, we considered only some cases involving First Nation claims given the commentaries already published in reference to them (Rappaport 2005; Mahaney and Watt 2017; Lee and Cloutier de Repentigny 2019). We were then left with 46 cases that involved some aspect of local challenge to industrial expansion, including access to information requests (12/46), judicial review of ministerial decisions (8/46), leases and spatial conflict (7/46), defamation (7/46), failure to consult (5/46), infractions (2/46), and community resistance (5/46). In addition, we monitored media reports of aquaculture conflicts, escapements, disease outbreaks, mass mortalities, and environmental complaints.

The Canadian context

Before considering the results of our analysis, we provide a brief introduction to the legal framework of the Canadian governance system, a system shaped by Canada’s status as a federation. This results in “the cohabitation of the federal and provincial governments in many legislative fields” (MacKay 2004, 25). With regard to aquaculture, both the federal government and provinces govern different aspects of the industry, such as site approval, seabed management, animal health, drugs and pesticide approvals, transport, and food safety. For example, while marine fisheries and oceans fall under the jurisdiction of the federal government, via 91.12 of the Constitution which covers “seacoast and inland fisheries” (Stanley 2023), licensing for natural resource development and business falls under provincial jurisdictions (Young et al. 2019). The most common approach allows provinces and territories to approve and regulate the leasing of the water column for aquaculture purposes, including permits for the farms to be built in specific areas, and licenses, which allow fish to be raised (or shellfish cultivated) within the leased space. However, there are two outliers in Canada with regard to the way aquaculture is regulated, Prince Edward Island and British Columbia. In Prince Edward Island, representatives from the federal department of Fisheries and Oceans Canada (DFO), the province, and industry make up a regulatory board, and all jointly approve aquaculture leases and licenses. In British Columbia, a significant producer of both finfish and shellfish aquaculture, the province approves the lease, and the federal government is responsible for the license and the regulation of aquaculture production. This latter arrangement is a consequence of court challenges in British Columbia, which resulted in the province relinquishing responsibility for aquaculture to the federal government. Another jurisdictional aspect of Canadian governance is its pluralism. As Canada governs under both common law and civil law (Quebec), it is currently understood as a dualist governance structure. But Corrin and Young (2019: ft 28) have argued that given the First Nation jurisdictions on reserves, and where treaty rights recognize customary laws and rights, Canada is best described as a “multi-juridicalism” state.

Analysis

With this background in mind, we now examine the 46 Canadian aquaculture cases in our survey. We identify several themes and issues within these cases, which in turn suggest areas of concern for the offshore development of this industry.

Jurisdictional opaqueness

As outlined above, the Canadian context creates a situation where many jurisdictions and authorities are involved in aquaculture operation site licensing, operational leases, and monitoring. These include DFO, Environment Canada, Transport Canada, Canadian Food Inspection Agency, provincial departments of fisheries, agriculture and aquaculture, and environment, plus any municipalities where operations onshore are involved. The result, which we are calling jurisdictional opaqueness, has led to complex court cases with many briefs provided from various agencies for the consideration of the court in deciding a question and considerable difficulties for the courts in resolving complex questions of jurisdiction and authority. For example, in a case involving a First Nation protest against aquaculture approvals in their territory without prior consultation, a judge in the Supreme Court of British Columbia mused on the jurisdictional difficulties, writing:

In the circumstances of a case like this one, when an action involves both federal and provincial aspects of a single undertaking, challenges to the decisions of both the Provincial and Federal Crowns result in bifurcated proceedings, and the “interests of justice, equity, and efficiency” are not served. That will be so for any undertaking which has a double aspect and involves both federal and provincial approvals. If there is a remedy to be found to this admittedly unsatisfactory result, it lies with Parliament to find it. [Ehattesaht First Nation v. British Columbia (Agriculture and Lands), 2011 BCSC 658 (CanLII), <https://canlii.ca/t/flhjl>]

Ehattesaht First Nation v. British Columbia (2011) points to the problem of property claims and counterclaims in a sector that is regulated by multiple agencies and government departments at different levels. As both province and federal governments create ocean access through permits and leases, the question of how to address counterclaims is a complex one that has not been effectively resolved, as this case illustrates. The requirement for prior consultation with First Nations highlights this issue of jurisdictional opaqueness, but the problem is not unique to First Nation claimants. This situation raises questions about how consultation around aquaculture decisions should be made and where those contesting aquaculture development should address their concerns. It also raises questions about the voice of opposition, which we explore in more detail below. Who is responsible for consulting with stakeholders and which of those stakeholders has a voice in decisions around aquaculture siting and licensing?

Consultation: the voice of opposition

Our review of aquaculture cases shows that while community groups have been active in bringing aquaculture into the court system, they have struggled to gain real voice through the law. Local community members, fishing organizations, First Nations, and ENGOs have all brought their complaints about aquaculture leases and operations to the government and ultimately before the courts. The types of complaints vary from aquaculture debris, noise and lights affecting property values, lease siting or lease expansion affecting fishing grounds or commercial stock nursery areas, aquaculture pesticides killing commercial species, salmon diseases spreading to wild fish stocks, and numerous other concerns about environmental impacts. In general, judges have not viewed this local resistance favorably, especially in the light of corporate permits and leases.

Lack of consultation has been a complaint in numerous cases in our survey and not just for First Nations. For example, in Fundy North Fishermen’s Association v. N.B. (2000), the judge in the New Brunswick Court of Queen’s Bench noted several anomalies in the aquaculture site consultation and approval process, which had resulted in local fishermen and property owners seeking judicial review of the minister’s decision. The province had provided very little time for the public to respond to the application for license approval (the proposal was dated 12 May 2000 and public comments were due on or before 25 May 2000). Further, the aquaculture company making the application had not secured approval from the Federal Minister of Transport, as required, and the provincial Aquaculture Site Evaluation Committee had recommended against the site. Despite these anomalies, the judge wrote:

I am of the view that the Minister acted within the bounds of the jurisdiction conferred upon him by the Act and that his decision to approve the Application was not wrong in law or patently unreasonable (Fundy North Fishermen’s Association v. N.B. (Minister of Agriculture, fisheries and Aquaculture), 2000 CanLII 3066 (NB QB), https://canlii.ca/t/6mhq.

Such judicial decisions have a direct impact on citizen action and voice. In Brighton v. Nova Scotia (Agriculture and Fisheries), 2002, for example, where a local group was protesting the introduction of aquaculture leases in Nova Scotia, the Supreme Court of Nova Scotia judge made use of emails exchanged between federal and provincial representatives that had been provided to the court to demonstrate the degree of proper ministerial review. In his decision, the judge quoted from what he described as “somewhat more pointed advice” to:

“…curtail the momentum of those who simply don’t want aquaculture on their areas (NIMBY syndrome) and think they can get rid of legitimate operators by mounting a smear campaign or political lobby.

The dept has been pressuring DFO to be fair to Aquaculture in NS and allow it to develop. Approving this site in the face of strong local opposition and political pressure will demonstrate to the federal government that we ‘talk the talk and walk the walk.’”

In his decision, the judge concluded that:

The Government of Nova Scotia has identified a properly regulated fish farming industry as representing potential economic growth. [Brighton v. Nova Scotia (Agriculture and Fisheries), 2002 NSSC 160 (CanLII), <https://canlii.ca/t/5kk8>]

Potential economic growth here is viewed as a legitimate government objective, while government representatives characterizing local protesters as suffering from a “NIMBY syndrome” in effect silences citizens who will be impacted by ocean privatization.

To fight this silencing, concerned residents and environmental groups have made use of provincial access to information regulations to highlight environmental risks from aquaculture operations, as is demonstrated by the many cases of access to information requests. Privacy commissioners have tended to award access to information when they are not convinced that such access would be harmful to business interests. However, despite Privacy Commission decisions, the information requested is often not forthcoming. In the case of mass farmed salmon mortality events in Newfoundland, for example, the provincial government claimed not to have any information it could provide to concerned citizens (Department of Fisheries and Land Resources (Re), 2020 CanLII 35640 (NL IPC), https://canlii.ca/t/j7wq7), while in other cases, governments simply ignored commissioner rulings that they must provide the requested information (an increasingly common problem, see CBC News 2022). Meanwhile, corporate investments and the potential for economic growth are viewed as empowering aquaculture companies in matters such as gaining intervener status, whereas local citizen groups, fishermen’s organizations, or ENGOs are not so empowered. Further, in a few cases, corporations have sought to punitively silence local protests, with mixed reactions from the courts (see, for example, Mainstream Canada v. Staniford, 2012 BCSC 1433 (CanLII), < https://canlii.ca/t/fszwm >).

Further, the vexing question of when consultation has been undertaken in a legitimate way gets very little attention in these court cases, whether involving First Nations who have a constitutionally protected consultation status or communities under provincial regulation. Communities often complain of rushed consultations or placebo consultations that do not really address local concerns. And, even when the consultation process appears to be deeply flawed, the courts often agree with the Crown, on the basis that the subsequent decision was not “wrong in law or patently unreasonable.”

Ministerial discretion

This terminology is common in numerous cases we reviewed, with judges stating a reluctance to overrule ministerial discretion, a term which when employed in Canadian statute law, means the power of a crown minister to vary or alter the decisions of his/her bureaucrats, one of his/her committees, or one of his/her boards. In cases where a community or environmental groups have asked the courts to review ministerial decisions around aquaculture site licensing or environmental assessment, judges have referred to case law to define the problem as one of “reasonableness.” In Brighton v. Nova Scotia (Agriculture and Fisheries), 2002, for example, the judge noted that despite the right to appeal ministerial decisions, “the standard of review” required was that of “patent unreasonableness” that is to have been made arbitrarily, in bad faith, without evidentiary support or where the minister failed to consider relevant factors. The Nova Scotia Supreme Court judge went on to add:

...the ultimate question is what the legislature intended – in this case one of the intents was to promote aquaculture. ... “where the purpose of [the Act] seems to be more political than legal, then the appropriateness of court supervision diminishes” (Brighton v. Nova Scotia (Agriculture and Fisheries), 2002 NSSC 160 (CanLII), <https://canlii.ca/t/5kk8>.

In several such cases, judges suggested that if citizens disagreed with decisions taken by a crown minister, the place to bring about change is through conventional political processes rather than through the courts. One British Columbia judge wrote:

The only permissible attack on the policy decisions of the Province with respect to salmon aquaculture is that which can be made at the ballot box (Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Agriculture and Lands), 2010 BCSC 1699 (CanLII), <https://canlii.ca/t/2dp4x>.

MacKay has commented that “the concurrent jurisdiction enjoyed by both levels of government in Canada with respect to the environment lends itself more to federal-provincial diplomacy than to court actions” (2004, 29). Such diplomacy as exists between federal and provincial regulators has largely been in support of encouraging aquaculture as an economic generator for coastal areas. This suggestion that the democratic process is the correct arena to address industry sustainability concerns raised by citizens appears unrealistic given the power of private property rights once awarded (Barnett et al. 2016).

Academy of science

This court’s deference to crown ministers extends to government scientific assessment of the environmental impact of industrial aquaculture. Numerous cases reveal how the courts are unwilling to become what several judges have called “an academy of science.” The case against the Government of Nova Scotia brought by the Specter family and the Ecology Action Centre (EAC, an Atlantic Canadian ENGO) provides context for this issue (Specter v. Nova Scotia (Fisheries and Aquaculture), 2012). In this case, the provincial government of Nova Scotia permitted an aquaculture company to substantially increase the size of their lease site without applying for new permits. Given that this expansion would involve tripling the size of the operational leases, the government’s decision was challenged by the Specters and EAC. The challenge drew on scientific evidence showing that the existing sites had experienced problems with hypoxia (loss of oxygen causing salmon to suffocate and die) known to be associated with marine sediments deposited under ocean-based aquaculture cages. Scientific advice from the federal fisheries department, however, was that the expansion of the sites was acceptable and within the regulations and on this basis the government of Nova Scotia approved the expansion of the sites. At issue was the contrasting scientific evidence brought by the environmental groups and by the federal government. However, the judge was reluctant to decide on science questions, stating:

It is not the function of this Court, sitting in appeal of the Minister’s decision, to review the scientific and technical evidence, and resolve any inconsistencies or ambiguities which might exist. To do so would turn this Court into an “academy of science” as that term has been used in other cases. Such an approach is inappropriate. (Specter v. Nova Scotia (Fisheries and Aquaculture), 2012 NSSC 40 (CanLII), <https://canlii.ca/t/fptnt>.

The judge ruled in favor of the Government of Nova Scotia—and by implication the company which had expanded their existing production sites without reference to the regulations. In this way, the courts focused on government approvals and refused to become “an academy of science.”

Lease creep

Courts have frequently been tolerant of corporate manipulation of regulations when the government has acquiesced to them. A prominent example, as mentioned above, is lease creep, where over time, cages are expanded beyond the boundaries of the original lease. Increasing the size of the initially approved boundaries can result in a significant expansion of the size of the operation, without requiring additional license applications or environmental review. When this issue is brought to the courts by environmental and community-based organizations, the courts have supported the right of the government to retroactively approve the company’s expansion without environmental impact assessments or normal lease approval processes. The decisions of judges in support of the government’s position are often couched in terms of ministerial discretion (see above). The practice of lease creep is so widespread that it appears to be a deliberate strategy by companies to increase the ocean space to be privatized (and thus colonization of land under the water column) without requiring regulatory approval. The courts have effectively sanctioned this practice.

Lacuna of cases

Perhaps another consequence of the court’s acceptance of government arguments regarding the economic benefits of aquaculture is a remarkable lacuna in the cases. Over the 30-year record of aquaculture companies appearing in court, there was a significant lack of cases of infraction of regulations (7 of 150 cases). Given the poor environmental record of aquaculture operators in Canada, especially as the industry first developed, this is a very surprising finding. It suggests that government regulators may have been reluctant to punish environmental and other infractions which are regularly reported in the media, such as large-scale fish die-offs (CBC 2019a), farmed fish escaping from cages (CBC 2021a), aquaculture debris (CBC 2021b), salmon disease (CBC 2019b), expansion beyond lease sites (lease creep), illegal chemical use (CBC 2019c), failure to fallow sites as required, or crowding within cages.

There are also only a few examples within our survey in which courts enforced aquaculture regulation. Two examples come from Newfoundland and Labrador. In the first example, the Salmonid Association of Eastern Newfoundland and other organizations took the Government of Newfoundland and Labrador to court for releasing an aquaculture company from an environmental impact assessment for a smolt raising facility in Stephenville (Salmonid Association of Eastern Newfoundland v. Her Majesty the Queen in Right of Newfoundland and Labrador, 2020 NLSC 34 (CanLII), < https://canlii.ca/t/j5t83 >). Smolt facilities grow salmon on land until they are ready to be transferred into ocean-based cages. The lawyers for the Salmonid Association—a group representing wild salmon angling interests—argued that the smolt facility could not be separated from the environmental impact that these salmon would eventually have on ocean ecosystems. The court found that “the decision of the Minister excluding the sea cages was unreasonable” (Salmonid Association v. Newfoundland and Labrador 2020).

A second case also involved the Government of Newfoundland and Labrador releasing Grieg aquaculture from the requirement to undertake an environmental impact assessment for its massive new project in Placentia Bay (Newfoundland and Labrador (Environment and Climate Change) v Atlantic Salmon Federation (Canada), 2018 NLCA 53 (CanLII), < https://canlii.ca/t/hv3rn >). In 2017, the Atlantic Salmon Federation took the Newfoundland and Labrador government to court demanding that the decision to release the company from an environmental impact assessment be overturned. In this case, the organization representing angling interests again won their case, and the government was forced to demand an impact statement from the company. These were two important outcomes for environmental and angling interests. At the same time, we need to be cautious about seeing the courts as playing a progressive role when only two judicial decisions enforced the need for companies to undertake a straightforward environmental impact assessment of industrial operations which are known to have significant environmental risks for ocean ecosystems.

The themes we have identified through our survey of court cases in Canada include judicial opaqueness, lack of meaningful consultation, respect for ministerial discretion, fear of the “academy of science” in the courtroom, tolerance for corporate manipulation of regulations, and failure to prosecute infractions or enforce regulations. While we have found a few cases where court decisions have served as inflection points, requiring proper environmental review or suppressing chill suits pressed by corporations against local protests, in general, the cases we reviewed suggest that the legal system and the courts in Canada have played a limited role in regulating what is an industrial system of production in nearshore environments. The problem is not necessarily a lack of suitable legislation; instead, our review points to the lack of enforcement, the unwillingness of judges to second guess the relevant ministers, and a reluctance to weigh in on complex scientific or jurisdictional matters. In what follows, we explore the implications of our analysis and, of these themes, for the development of Blue Economies and the specific case of privatization of ocean spaces to facilitate offshore aquaculture in a transformative sustainable way.

Discussion

While governments and industry evoke Blue Economy narratives that rely on powerful ocean frontier imaginaries of vast unused spaces full of opportunity and promise, we know from experience that these frontier imaginaries mislead and lie. For the global oceans, it is precisely these past frontier imaginaries that have shaped our current environmental and social crises. The ocean is not empty, but teeming with life, and human and other terrestrial life is intrinsically reliant on its health and ecological integrity. Thus, it is vital to gain insights from experience with our current ocean laws to predict probable issues with the future development of extractive industries in the open ocean. It is also crucial to explore ways we can alter our laws to address these issues for more just outcomes.

We find it useful to extrapolate from these Canadian court cases since they illustrate how corporate aquaculture and the law interact, with associated consequences for sustainability, even within one nation-state. Proponents of the move to offshore often assume that the sustainability of aquaculture, wherever located, can be assured through proper regulation (Davies et al. 2019) and that such regulation for the offshore is possible once the troubling question of defining “offshore” is decided (Morro et al. 2021; Watson et al. 2022). But given the jurisdictional opaqueness of governance of international ocean spaces under the United Nations Convention on the Law of the Sea (UNCLOS) and more recent efforts to extend multi-lateral agreements beyond the boundaries of national jurisdiction (BBNJ), the Canadian experience raises vital questions as to the consequences of privatizing offshore ocean spaces.

Aqueous territoriality and capitalism

Our contribution links recent concerns around capitalism in aqueous spaces to lessons learned from existing ocean privatization over the past 30 years. For legal geography, law and space are mutually constitutive. In other words, law makes space, and therefore, spaces are always legal. Legal geography has tended to focus on how this works in state-controlled spaces in Anglo-American contexts but recently has expanded beyond sovereign spaces, including international territories (Delaney 2016). This emerging area of scholarship is looking at international law/space including conflict zones, outer space, the oceans, and other spaces where conventional legal regimes connected to a nation-state are exceeded. Delaney also draws attention to the issue of nonhumans in these spaces, a point to which we will return. As Braverman (2023) notes, aqueous spaces may be particularly challenging despite the law’s power of abstraction. Such ocean privatization has relied on human definitions and the use of space on land, deploying historical practices (including colonialism) that are extended into new spaces (licensing, leases, private property rights, externalities, regulations). Jones (2023, 58) writes: “freedom [of the seas] is not enough [for capitalism]. Property must be secured.” Such historical practices of privatization may lack “fit” with aqueous spaces, but in Canada, the courts have tended to treat aquaculture leases as sacrosanct. Meanwhile, local challenges that resist nearshore aquaculture leases or operations are characterized by a federal regulator as NIMBY—a spatialized complaint! Such labeling ignores very real social and environmental issues and frames aquaculture as inevitable and uncontestable. As Bartel notes, this could be described as “a suspicion of those suspicious of modernism” (2017, 182). Given that the modernist agenda in both science and capitalism emerged from Enlightenment efforts to separate humans from nature, the privatization of ocean spaces enables, indeed requires, the commodification of nature in the service of humans. This human/nature or nature/society binary is integral to the violent colonial and settler colonial trajectory of space-making and the current climate crisis.

Given that capitalist investment via the Blue Economy is envisaged for largely stateless places, or at least places with a limited state presence, our analysis of Canadian experiences with aquaculture in the courts suggests that environmental regulation will prove even more difficult when aquaculture moves offshore. The legal quagmire of jurisdictional opaqueness, ministerial discretion, and corporate advantage over community voice/opposition that we outline in our results section will be amplified offshore. These are places where life is plentiful but are mostly empty of humans and human communities; therefore, we need to rethink who will have a voice in legal frameworks and how. What De Lucia (2023: 122) has called “gradients of sovereignty” is relevant here.

While the nearshore areas of historical aquaculture production fall under state sovereignty, innovative offshore aquaculture may extend extraction into the exclusive economic zone (EEZ). But these EEZs are regulated by their own set of rules. For example, where a nation-state cannot or will not make “maximum sustainable use” of ocean resources within its EEZ, another nation-state may do so (Probyn 2023). How will this affect leasing regulations for aquaculture, particularly in areas of disputed EEZ jurisdiction such as the Spratly Islands in the South China Sea or the Grey Zone between Canada and the USA?

Meanwhile, bilateral and multi-lateral agreements on the high seas open spaces for capital investment with very little environmental oversight and often with little attention let alone acknowledgment of the rights of Indigenous peoples (Braverman 2023). UNCLOS, for example, has been described as having an “extractive imaginary” (Ranganathan 2023, 30) and has been critiqued for not only ignoring diverse knowledge sets, but also for furthering the aims of corporate interests instead of protecting ocean spaces (Braverman 2023). In speaking of deep-sea mining, Reid (2023, 74–75) notes that “extractive corporations will operate in remote, sunless lease areas kilometers below the surface, removing the seafloor and their multiplicities of unknowable life-forms, relations, and materialities over the terms of potentially multi-decade licenses.” This quote could equally apply to offshore aquaculture, where privatized, multi-decade aquaculture farm leases would be difficult to regulate effectively.

Bodansky et al. (2008) raise several points that are important to consider with respect to regulating international waters and their more-than-human denizens. First, most international environmental law has an anthropocentric and utilitarian focus, with a resulting neglect of not just human social inequities but also the more-than-human relationalities. Second, most environmental harm is created by individuals (corporate actors in particular), while most international law focuses on the state (2008, 17). Third, the international legal response to the resulting problems has been “generally ad hoc and episodic” (2008, 2). And finally, sustainable ocean exploitation requires more reliance on science than does most international law. One can predict from the Canadian experience that international courts may also be reluctant to become “an academy of science.”

Perhaps because of these limitations of international law, the UNCLOS framework has created a legally binding instrument that aims to protect biodiversity through the extension of national jurisdictions, via the BBNJ (Ranganthan 2023, f29). This would enable states to regulate deep ocean aquaculture as part of their individual approaches to developing a Blue Economy, but no doubt would also lead to power struggles and legal inflection points. As the BBNJ has only recently been signed, it is difficult to predict how it will work in practice, but it is embedded within UNCLOS and its extractive scaffolding. Our analysis of provincial and federal regulation of aquaculture in Canada suggests that BBNJ’s attempts to expand jurisdiction across multiple governance frameworks can only result in a mix of approaches and complex regulations. If it were to be achieved, it would take a long time for global standards to emerge, with unstoppable environmental harm in the meantime.

Worse, as Sapignoli and Niezen (2022) point out, international organizations have often turned to private corporate actors to facilitate efforts to circumvent the limitations of the independent state actor. Global legal institutions especially rely on private corporations to provide the required technological expertise. This reliance on private sector participation in and responsibility for international legal regimes has opened the door to increased use of machine intelligence and other technological and social promises that do not necessarily rely in turn on deeper knowledge of socioenvironmental conditions.

Additionally, when we examine who has tried to defend and protect the environment and its other non-human members within the Canadian court system, we see that protest has arisen primarily from the communities most affected by aquaculture. Whether it is individuals, groups of individuals, or community-based non-profit organizations, their voice and legal action have been crucial to exposing the environmental and social harm caused by aquaculture companies. This has taken place even though, within Canada, legal pathways for individuals to protect/protest on behalf of the environment are quite challenging (Seck 1999). This leads us to ask, who is the “community” that can play this role in the offshore? The more-than-human, ocean-going communities currently have no legal voice, and their bodies have few legal rights, limited as they are to questions of animal welfare or ecological resilience. Thus, we find conversations regarding judicial processes and imaginaries that include more-than-human and corporate protections of significance to discussions of new ocean economies and ocean development beyond national jurisdictions.

Recent attention to these other-than-human bodies and their place under law has been useful for interrogating the role of privatization. Law and Lien (2013), for example, examine genetic manipulations of farmed salmon and investigate the resulting translation of salmon—a process that translates nature into human technology (and individual property). Braverman (2018) and Jeffry (2020) extend such embodiment questions to the place of animals under the law. How aquaculture practices impact the bodies of farmed salmon could be addressed as an animal welfare issue, but in some disturbing cases, even this protection has not been extended to them. For example, when 2.6 million salmon died at several farms in Newfoundland, no charges were laid against the company, although licenses were revoked for a short time (CBC 2019a). The legal categorization of farmed species as private property has resulted in little oversight of their lived experience (but see Ungoed-Thomas 2022), which in aquaculture is exacerbated by their relative invisibility under the water. This is even more concerning if offshore aquaculture results in increased harm to fish, which Morro et al. (2021) argue can be hidden in reporting practices. If we extend these invisible animal geographies into questions about relationality—how aquaculture impacts other ocean species, which is an area of science that is not well developed even after 30 years of experience and research (Curtis Maillet et al. 2019; Barnett and Wiber 2019)—we can ask further questions about how property law enables capitalism to hide behind incomplete scientific understanding in order to exploit more and more ocean spaces (see also Godwin et al 2023). Understanding why science is still functioning as if the natural world is disconnected from humans, human health, and social inequities and vice versa is key to understanding this complicity with capitalism.

Transforming laws to achieve transformative change?

Canada is currently developing a Blue Economy Strategy heavily influenced by participation in the High-Level Panel for a Sustainable Ocean Economy, which in turn envisions obtaining a sustainable ocean economy through placing all global oceans under national jurisdiction by 2025 (DFO 2021). The High-Level Panel claims a commitment to bold transformations to achieve its holy grail of social, environmental, and economic health. However, as with UNCLOS’s original aim at transformative change, the frontier assumptions that underlie these international agreements rely on longstanding modernist false binary thinking. Humans are separate from nature, and state space is separate from non-state space and lawful space from unlawful space. This binary nature of Western liberal thought, which is foundational to our current legal system, is designed to sustain the continued exploitation of natural resources. Additionally, this approach also incorporates inequities and hierarchies, both among individuals, but also including corporations, who often have more rights/status than individuals. And, as Pulido (2017) notes, it is largely Western corporations who reap profits assisted by state-endorsed non-compliance of regulation, with associated harm to both the environment and racialized peoples. It is no accident that the earliest offshore aquaculture licenses have been established between international corporations and developing countries such as Brazil, Indonesia, and Panama (Fletcher 2022).

In challenging the embeddedness of these binaries within legal systems, Grear (2017) relates more-than-human vulnerabilities to our own vulnerability given the entanglements of human-non-human ecologies (see also Pilippopoulos-Mihalopoulos and Brooks 2017). This entanglement destabilizes the Cartesian division between mind and body and the legal reliance on what Grear calls the rationalistic human knower, autonomous and completely disembodied (supporting masculine supremacy). Grear finds hope in the New Materialist Flux, where “Human agency is replaced by affect – defined as the capacity to affect or to be affected” (Grear 2017, 23). This affect appears the result of fluid and contingent assemblages (of which we could view aquaculture as an example). She reminds us that “assemblages have a territorial dimension,” and she argues all law “needs to be framed in a way that does not attempt to lock down a juridical future in linear terms [but]….to become more responsive to shifting situations” (2017, 25). But what would such law look like?

There is a growing movement by Indigenous peoples, researchers, and NGOs that take up the notion of legal rights for nature and animals other than humans (see Jefferson et al. 2023 for a review of this literature). While most of this literature argues for the rights of personhood to be extended beyond humans, we look at two interesting arguments that challenge this.

First, Seck (2019) reimagines legal constructs and tools in order to critique the foundational liberal concept of a bounded autonomous individual. To challenge this assumed autonomy, Seck engages with insights from material and Indigenous feminist scholarship that takes up a relational view. Seck argues for the reimagining of the corporation to protect not only the environment but also those who defend it. She points out that the new guidelines from the Organization for Economic Co-operation and Development (OECD) include attention to such protections through due diligence in stakeholder engagement practices, including the rights of Indigenous peoples and women. Seck endorses the role that feminist analysis can play in reenvisaging international law, which allows for these legal frameworks to move beyond local/global binaries.

Second, Jefferson et al. (2023) point to how research on extending legal personhood to other animals and the environment focuses on the role of the state in actualizing this and not on how this could impact company law. They argue that often in extending personhood to nature, advocates for this framework have had to make compromises that have weakened the ability to curtail resource exploitation for capital gain. This is due to the current way that corporate law is enshrined in Western legal systems coupled with the power of “shareholder primacy,” which means that corporations have strong legal rights. They call for a legal system able to “ensure that the duties of companies to limit and reverse ecological degradation are upheld and encourage companies to define and adhere to purpose statements that aim to achieve positive social and environmental outcomes” (9). Thus, Jefferson et al. (2023) argue for legal reform to allow for nature or other animals to become shareholders via legal pluralism. As noted above, legal pluralism already exists in Canada, and thus, this offers a possible road for thinking through offshore (and nearshore) aquaculture conflicts in Canada, and ways that truly transformative change could be taken up within old and new blue/ocean economies.

These arguments by Seck (2019) and Jefferson et al. (2023) could also build on the legal geographies discussed above, in order to challenge the certainty of spaces of international law, detached from local social, legal, and political realities, that as we have argued are crucial components of privatization and property processes. Braverman (2023, 7) has similarly argued for the breakdown of the land/sea binary, which is foundational to Eurocentric law and to the associated “technologies for abstraction” that enable extractive practices reliant on property and corporate law. In such critical frameworks, we may find alternative futures for our collective ocean world.

Conclusions

When property is viewed as process, a straight line can be drawn from the rhetorical devices of the corporate sector (feeding the world, preserving wild stocks, generating jobs, mitigating climate change) to gains in ocean access (via leases and permits) and ultimately to the protection of private rights through the courts. We have explored the real consequences of this process as it appears in court decisions across Canada. We have documented judicial opaqueness, lack of meaningful consultation, respect for ministerial discretion, fear of the “academy of science” in the courtroom, tolerance for corporate manipulation of regulations, and failure to prosecute infractions or enforce regulations. This analysis of Canadian aquaculture court cases offers critical insights into the role of the courts in normalizing what has been a highly contested process of privatization within the Canadian ocean economy. But it also, and perhaps more importantly, provides critical insights into how this sector might challenge and evade regulation as it shifts offshore, supported by the frontier imaginary of the Blue Economy.

Our review of these court cases reveals that surprisingly few cases involve companies being charged for infractions including environmental and other breaches of regulations. This is surprising given the significant media coverage and academic work that has revealed the poor environmental record of this industry in Canada. For those cases that do reach the courts, our finding is that the courts tend not to enforce environmental regulations such as environmental impact assessments. This is not because the courts are necessarily biased in favor of aquaculture companies. It is, instead, because of the nature of the legal system and of the innovative use of land-based legal infrastructures of privatization (Schlüter et al. 2020). For example, the courts rarely challenge ministerial decisions and allow for significant ministerial discretion when it comes to legal challenges to aquaculture leases and licensing. Similarly, the courts have been unwilling to weigh in on scientific disputes associated with aquaculture operations, particularly when these involve pollution or environmental problems. In several of the cases we examined, judges have pointed out their reluctance to become “an academy of science” by making judgments on scientific disputes. All of this is made more challenging by the complex jurisdictional fragmentation of Canada’s governance system.

When the rhetoric of economic growth supports government endorsement of ocean access, contestation is sure to follow. But when actors have tried to use the courts to contest government nearshore grants to international aquaculture corporations, they have been blocked by consideration of corporate property rights. Thus, the prospects for regulating aquaculture production offshore under similar lease arrangements appear even more unlikely. Our analysis raises clear concerns about how, whether, and by whom aquaculture will be regulated in an offshore Blue Economy, with significant consequences for the bodies of salmon and other ocean entities. The current role the courts are playing in enforcing ocean property rights despite environmental concerns requires that we rethink our care for global oceans. If the courts and the regulatory system are to play a progressive role in managing offshore aquaculture sustainably, it will need to reexamine basic assumptions about the property process, its role in resource extraction, and ultimately our own embeddedness within our global environment.