Aquaculture Review Board Process

Hi everyone,

My apologies for not posting a blog update last week but between preparing for Easter (see one of our resident Ester Bunnies now about three weeks old) and all the other activities on my plate it just slipped my mind.  

Last week was certainly an exciting one for those of us in the salmon conservation game as we heard last Thursday that Cermaq had decided to withdraw its plan to expand into NS.  As many of us had been working hard to draw attention to the threat that this expansion posed to endangered wild Atlantic Salmon this was very positive news.  

While the Cermaq expansion is no longer on the horizon, it does not mean that aquaculture is no longer a concern in NS.  Within hours of Cermaq's decision Cooke Aquaculture came out with their own announcement with plans to proceed with their planned expansion, and this week several licence renewals were granted and others opened for public comment.  You can find out which applications have been renewed and how to comment on those applications open for public comment on the NS Department of Fisheries and Aquaculture website https://novascotia.ca/fish/aquaculture/public-information/.

With these expansions happening I thought it might be a good idea to review the Fisheries and Coastal Resources Act and associated regulations to try to better understand how aquaculture applications are reviewed and decided upon.  Needless to say the source material is not an easy read and so I decided to break down parts of the process into a more plain language description.  While I am not a lawyer and make no claims that the following is a perfect translation of the legaleze that make up the Act and the regulations I think anyone who suffers through my interpretaiton will at least get a better idea of the process and how they might be able to particpate.  

I have chosen to only write up the portion of the Act and regulations that pertain to the Aquaculture Review Board or ARB.  The ARB is a method under NS law to review new aquaculture applications and existing licenses with the have significant proposed changes.  Getting the option to explore an application for a particular bay, renewals, experimental licenses, licenses in designated aquaculture areas use a different process.  These and applications for shellfish aquaculture licenses will not be covered here.  

For those that don't want to read the whole thing here are the highlights.

ARB oversees the process and makes the decision on new licenses.  The ARB is appointed by the government but is independent from the Department of Fisheries and Aquaculture.  They make their decisions on applications using a hearing or trial where the ARB acts as the judge/jury.  Like a trial you must be granted permission to participate (granted Intervenor Status).  The ARB  determines what evidence can be presented and how.  Members of the public can participate but are limited in what they can say and present.  To participate as an intervenor or as a member of the public you will need to follow the rules set out by the ARB.  Information on the ARB and its rules can be found at https://arb.novascotia.ca/

ARB PROCESS

Applications for new sites or renewals that change the area of an existing aquaculture site will be reviewed by the department then sent onto the Aquaculture Review Board (ARB).

Within 15 days of receiving the application from the department, the ARB will set a date for an adjudicative hearing of the application.  The date of the hearing must be between 60 and 90 days from the date the ARB met to set the date for the hearing.  60 days written notice of the hearing must be given on at least the Department’s website and in the Royal Gazette Part I. The notice must include the nature of the hearing, the time and place of the hearing, location of the aquaculture site that is being applied for, the species and method of cultivation, and the applicant’s name.  The ARB can choose to share other information but is not obligated to do so.  The ARB must choose to hold the hearing in a community that they determine is the closest and the most appropriate.

SUBMITTING WRITTEN COMMENTS

During the 60-day notice period, any member of the public may submit written comments to the ARB.  Those comments must be submitted in a manner to the ARB at least 15 days before the start of the hearing.  Your comments must identify who you are, your address, and your position on the application.  Your position must address one of the the following topics:

(a) the optimum use of marine resources;

(b) the contribution of the proposed operation to community and Provincial economic development;

(c) fishery activities in the public waters surrounding the proposed aquacultural operation;

(d) the oceanographic and biophysical characteristics of the public waters surrounding the proposed aquacultural operation;

(e) the other users of the public waters surrounding the proposed aquacultural operation;

(f) the public right of navigation;

(g) the sustainability of wild salmon;

(h) the number and productivity of other aquaculture sites in the public waters surrounding the proposed aquacultural operation;

It is unclear what the ARB will do with comments that do not fit into one of these topics but it is possible that comments that do not address one of these topics might just be deleted or ignored. It is therefore important that submitted comments should be made to address one of these topic areas and clearly identify who is making the submission.

INTERVENOR STATUS

To present evidence at the ARB hearing you must request Intervenor Status.  Anybody can ask the ARB to be an intervenor but it is up to the ARB to decide who be intervenors. 

To ask to be an intervenor you must apply to the ARB in writing within 10 days of the notice of the hearing being announced (date it appears on Department website - https://novascotia.ca/fish/aquaculture/public-information/ and in the Royal Gazette Part I).  You must apply to be an intervenor in the manner determined by the ARB.     Your request to be an intervenor must demonstrate how you will be "substantially and directly affected by the hearing" and needs to summarize what you evidence will be presenting to the ARB.  Your evidence must address one or more of the following topics:

(a) the optimum use of marine resources;

(b) the contribution of the proposed operation to community and Provincial economic development;

(c) fishery activities in the public waters surrounding the proposed aquacultural operation;

(d) the oceanographic and biophysical characteristics of the public waters surrounding the proposed aquacultural operation;

(e) the other users of the public waters surrounding the proposed aquacultural operation;

(f) the public right of navigation;

(g) the sustainability of wild salmon;

(h) the number and productivity of other aquaculture sites in the public waters surrounding the proposed aquacultural operation;

The ARB must decided to grant you or deny you Intervenor Status within 10 days of receiving your application.  If you prove to the ARB that you will be “substantially and directly affected by the hearing” than you must be granted Intervenor Status.  The ARB will let you know within 5 days of making their decision whether or not you have been granted intervenor status.  According to the regulations their decision is final, suggesting that you cannot appeal their decision.  All participants in the hearing (the applicant, everyone who was granted intervenor status, and the Minister or the Minister’s designate) will be notified by the ARB about who all the participants are going to be. 

The ARB will forward to all participants the application, a scoping report, and a development plan.  The topics to be included in the application and development plans are determined by the Department.  The scoping report is the report based on the applicant’s (the company) consultations.  Applicants are required to complete at least 1 public meeting in “the most appropriate community that is closest to the proposed site”.  However, the applicant (the company) can request that any of these documents can be deemed confidential.  If the company makes that request the ARB will not release that document to hearing participants until it, the ARB, has a chance to determine if the document(s) are confidential.  If the ARB rules a document confidential it will not be released to the Intervenors.

The ARB has the right to require that Intervenors combine all or part of their evidence to avoid repetitive or cumulative evidence.   

If Intervenors or the applicant submit any other documents or correspondence to the ARB they must give copies to all other hearing participants at the same time as they communicated with the ARB.  The same confidentiality rules apply here as described above for the application.  So, for example, an Intervenor could submit a document containing evidence to the ARB and request that it be held in confidence.  It would then be up to the ARB to decide if that document was indeed confidential.  If the ARB deems the document confidential the document would not be shared with the other participants.  If the ARB deems the document not confidential then the submitter would be required to share that document with all other participants when they are notified of the ARB’s decision. 

The ARB is required to copy all hearing participants on all their correspondence to one of the participants.  So if they inform one Intervenor or the applicant of a decision then they must  let all other Intervenors, the Minister (or designate), and the applicant know as well. 

The ARB has the power to make up new processes and protocols or to amend those set out in the regulations and in the Fisheries and Coastal Resources Act if it deems that it is necessary.  The regulations identify three possible cases for this: there is no process or protocol in the regulations/Act, there are special circumstances for a given application, it is in the public interest for them to do so.

The ARB will start each hearing with the purpose and procedures including expected conduct, of that hearing.    Hearings can be adjourned and reconvened hearings as they see fit.  If a meeting is halted and will resume at a later date and time, then the ARB must provide reasonable notice of when and where the hearing will be resumed.

EVIDENCE

Evidence to be presented at a hearing must be relevant to the proposed application and location being reviewed and must address one of the following topics: 

(a) the optimum use of marine resources;

(b) the contribution of the proposed operation to community and Provincial economic development;

(c) fishery activities in the public waters surrounding the proposed aquacultural operation;

(d) the oceanographic and biophysical characteristics of the public waters surrounding the proposed aquacultural operation;

(e) the other users of the public waters surrounding the proposed aquacultural operation;

(f) the public right of navigation;

(g) the sustainability of wild salmon;

(h) the number and productivity of other aquaculture sites in the public waters surrounding the proposed aquacultural operation;

The ARB can exclude any evidence they deem to be hearsay, irrelevant, immaterial, or unduly repetitious.

Any person participating in the hearing may submit written evidence or present oral testimony to explain their position. Evidence from expert witnesses will only be accepted if it is in the form of a report that includes the experts name, address, qualifications, and a summary of the substance of the expert’s evidence. Any written or visual evidence that will be given at the hearing, including these expert witness reports, must be submitted to the ARB and all participants through an affidavit (written statement confirmed by oath or affirmation) at least 15 days before the hearing. Evidence that is generally considered and accepted as common knowledge may be accepted and included as evidence by the ARB.

The clerk of the ARB will log, number, and keep track of all evidence submitted to the ARB. If originals of evidence are not readily available, the ARB may accept copies or excerpt from the original. When presenting evidence, you may be required by the ARB to provide copies to all the other participants.

PUBLIC PARTICIPATION IN THE HEARING

Members of the public can participate in ARB hearings.  To participate a member of the public must make a request to provide sworn oral statement to the ARB at least 15 days before the start of the hearing.  You request to participate must that provides your name, your place of residence, and your position on the issue.  You position and public statement during the hearing must address one of the following topics: 

(a) the optimum use of marine resources;

(b) the contribution of the proposed operation to community and Provincial economic development;

(c) fishery activities in the public waters surrounding the proposed aquacultural operation;

(d) the oceanographic and biophysical characteristics of the public waters surrounding the proposed aquacultural operation;

(e) the other users of the public waters surrounding the proposed aquacultural operation;

(f) the public right of navigation;

(g) the sustainability of wild salmon;

(h) the number and productivity of other aquaculture sites in the public waters surrounding the proposed aquacultural operation;

All public statements will be limited to no more than 6 minutes per person.  The ARB can impose other restrictions or conditions on public statements. 

QUESTIONS DURING THE HEARING

The Chair of the ARB determines the protocols for asking questioning during the hearing.  Therefore, the Chair of the ARB would determine things such as how many questions can be asked, who asks questions when, and whether a question is to be allowed or excluded for being repetitive or outside the scope of the hearing.  Questions must be directed to a specific person at the hearing.  If that person cannot answer the question, then the Chair may permit another person in that specific person’s group who is present to answer the question.    If the question is unable to be answered during that session of the hearing then the person(s) who was asked the question may defer giving an answer but must try to provide an answer before the end of the hearing.  If in the opinion of the ARB the hearing is able to end before an answer is given, then the person(s) who was asked the question must provide an answer to the clerk of the ARB within 7 days of the end of the hearing.  The clerk of the ARB will then distribute the answer to the person who asked the question and any other participant who requests a copy of the answer. 

At the end of the hearing, the official record of the hearing will be closed and no further evidence will be accepted.  There are two exceptions to this.  The first is that at the end of the hearing all participants can agree to keep the record open until the ARB reaches its decision.  The second exception is that the ARB may choose to reopen the record and accept more evidence if they decide they need more evidence on a specific issue(s).  The clerk of the ARB keeps the official record of each hearing.  The official record will include the application, any supporting documents, and all exhibits (presented evidence). 

ARB DECISION

The ARB will make a decision on the application within 30 days from the end of the hearing.  The ARB decision must include their reasons for arriving at that decision.  The ARB reasons must include the ARB’s findings based on presented evidence, any legal ramifications from evidence presented, and any changes that were made to the process or protocol from established procedures.  The ARB decision and reasons will be sent to each participant and published on the Department website.  Any participant may appeal the decision of the ARB to the Supreme Court of NS within 30 days.  An appeal to the Supreme Court does not stay the ARB’s decision.  The Minister has until 15 days from the end of the 30 day appeal period to act upon the decision of the ARB.