The jurisdiction to regulate aquaculture in Canada
University of British Columbia
Master of Laws - LLM
Canadian aquaculture regulations need reform. Aquaculture regulations are constitutionally unsound and environmentally inconsistent. The federal government regulates aquaculture in British Columbia but the provinces regulate aquaculture in the Atlantic provinces despite the fact that similar provincial regulations were struck down as unconstitutional in British Columbia in Morton v British Columbia (Minister of Agriculture and Lands). No appeal court in Canada has ruled on the constitutionality of provincial aquaculture laws. As a result, provincial aquaculture laws are vulnerable to attack and aquaculturists face uncertainty. The environment also suffers from different environmental standards from province to province. In British Columbia, the federal government applies stringent disease and escapee regulations whereas in the Atlantic provinces disease and escapee regulations vary greatly. The purpose of this thesis is to clarify the scope of the federal and provincial legislative powers to regulate aquaculture. I conclude that the Morton decision interpreted the federal “sea coast and inland fisheries” power too broadly, incorrectly including net-pen aquaculture as a “fishery”. I then apply the pith and substance analysis to the provincial aquaculture laws impugned in Morton and I conclude that provincial escapee regulations are likely ultra vires but that provincial seafloor pollution regulations are likely intra vires. I also apply the pith and substance analysis to the aquaculture regulations in the Atlantic provinces and conclude that their property rights laws are likely ultra vires but their disease laws are likely intra vires. This review of escapee and disease regulations exposes unacceptable discrepancies in the standards between the provinces. In addition, I clarify jurisdictional issues that may arise regarding shellfish, plant, on-land, and offshore aquaculture. Finally, I critique the federal Pacific Aquaculture Regulations created in response to the Morton decision. I conclude that they lack transparency and they permit the release of deleterious substances that are, at the same time, prohibited by the Fisheries Act. By articulating the scope of legislative power relevant to aquaculture, this thesis defines a foundation upon which Canada and the provinces can build sustainable and consistent aquaculture regulations for future generations.
Attribution-NonCommercial-NoDerivs 2.5 Canada
Law, Faculty of