Aquaculture Law and Policy: Struggling in the Wake of the Blue Revolution David L

Introduction Aquaculture law and policy: struggling in the wake of the blue revolution David L. VanderZwaag

Rapid growth of aquaculture developments around the globe has been likened to a blue revolution.1 Aquaculture contributions of fish, crustaceans and mollusks have grown from 3.9 percent of total world production by weight in 1970 to 29.9 percent in 2002.2 Aquaculture has grown at an average rate of 8.9 percent per year since 1970, compared to 1.2 percent for capture fisheries.3 Aquaculture is predicted to play an increasingly import- ant role in meeting food fish demands in light of world population growth, rising per capita incomes, urbanization trends4 and the depletion of many wild fish stocks.5 In the wake of aquaculture expansions, a host of environmental, social, economic, health and ethical issues are raised. For example, marine finfish farming carries numerous potential environmental effects, including eutrophication, sedimentation and stimulation of harmful algal blooms from nutrient and organic matter enrichment caused by uneaten food pellets and feces.6 Spread of diseases and parasites from farmed fish to wild stocks7 and potential adverse effects of escaped fish on wild fish through competition and interbreeding are further concerns.8 The environmental impacts of chemicals, such as drugs used to treat sea lice and antibiotics targeting infectious diseases, are largely unknown.9 Social conflicts are also prevalent. Traditional fishers and boaters may be unhappy at the prospect of losing access to marine spaces. Coastal residents and tourism operators may be upset over aesthetic interferences. Who in society should be given priority for aquaculture site access, particularly in offshore marine areas where common property regimes have dominated, is another contested question.10 Lower prices for farmed fish may also give rise to animosity from fishers faced with going out of business because of the aquacultural market glut.11 Economic questions, having social and cultural dimensions, also abound. How far should governments limit corporate control and ownership of aquaculture operations? How should taxation of aquaculture profits be handled, and what level of fees should be imposed for leasing and licensing privileges? Complex health issues surround aquaculture products. Elevated levels of organic contaminants, such as dioxins and PCBs in farmed salmon, originating 2 David L. VanderZwaag from contaminated feeds, have spawned both advisories against consuming large amounts of farmed fish12 and advocacies regarding the overall positive health benefits of consuming farmed salmon.13 The potential human health impacts of using antibiotics in aquaculture have received little study.14 Ethical dimensions also loom over aquaculture developments. Persons having ecocentric viewpoints may be distraught over the very notion of “farming” the wild seas, and in particular the morality of taking fish from the ocean food chain to supply fishmeal for intensive aquaculture operations.15 The prospect of genetic modification of fish to maximize aquaculture profits – for example, from faster-growing fish – perhaps most starkly raises the ethical policy choices.16 Whether to limit aquaculture to native species is a further question.17 Fish welfare and avoidance of cruelty also lurk as issues.18 The governance of aquaculture, especially in the marine and coastal context, has largely lagged behind the pace of development pressures. Many countries, not having specifically tailored aquaculture legislation, have struggled to control aquaculture access and operations through dated and marginally relevant legislation such as old fisheries acts, navigable waters protection laws and general environmental protection statutes.19 Environ- mental impact assessment processes are often not applied to established aquaculture operations and proposed shellfish projects20 even though they may carry possibly significant environmental consequences.21 Effective regulation has also foundered as a result of limited governance capacity and lack of political will in light of the short-term benefits offered by rapid aquaculture development.22 Regional agreements and arrangements have tended to focus on transboundary fisheries and pollution challenges23 and have generally neglected transboundary threats of aquaculture such as transborder disease transfers and the impacts of escaped fish.24 Further developing and strengthening national aquaculture governance is likely to involve substantial social and political struggles. With no global treaty specific to aquaculture, countries have wide latitude to establish their own environmental and health standards,25 the setting of which is almost certain to spark interest and value conflicts among multiple actors interacting to reflect their viewpoints.26 Working out the appropriate mix of the three main modes of governance27 – hierarchical governance, self-governance and co- governance – and sorting out the roles of science, public opinion and bureaucratic expertise in decision-making are likely to be other areas of tension.28 To assist countries with law and policy assessments and reforms in support of ecologically and socially sustainable aquaculture,29 various principles have emerged from international agreements,30 declarations31 and codes.32 Those principles include, among others, the precautionary approach, public participation, integration, intergenerational and intragenerational equity, the ecosystem approach and the “polluter pays” principle.33 Perhaps one of the greatest struggles in coming decades will be over how to translate principled coastal/ocean governance into practice.34 Many of the Introduction 3 principles are still subject to considerable interpretive controversies,35 and governance implications and details have yet to be fully fleshed out.36 Mul- tiple meanings of principles37 and the interrelationship between/among principles are added challenges.38 The need for ensuring legal frameworks supportive of sustainable aquaculture has been widely recognized. For example, the Food and Agricultural Organization (FAO) Code of Conduct for Responsible Fisheries urges states to establish and maintain an appropriate legal and administrative framework that facilitates the development of responsible aquaculture.39 The Bangkok Strategy for Aquaculture Development, adopted at an international conference in February 2000 involving some 540 participants from sixty-six countries and more than 200 governmental and non-governmental organizations, urges countries to develop “comprehensive and enforceable laws, regulations and administrative procedures that encourage sustainable aquaculture” and to clarify “legal frameworks and policy objectives regarding access and user rights for farmers.”40 This book highlights the numerous law and policy issues that must be addressed in the search for effective regulation of aquaculture. Those issues include, among others, the equitable assignment of property rights; the design of effective dispute resolution mechanisms; clarification of what maritime laws apply to aquaculture (for example, are injured aquaculture workers covered by special maritime compensation legislation or traditional workers’ compensation legislation?); adoption of a proper taxation system for aquaculture; resolution of aboriginal offshore title and rights claims; recog- nition of international trade law restrictions, such as labeling limitations and food safety requirements; and determination of whether genetically modified fish should be allowed and, if so, under what controls. This volume explores principled aquaculture law and policy approaches and challenges through a five-part format. Part I includes two chapters pro- viding global overviews. Chapter 1, by William Howarth, discusses aquaculture regulatory challenges and diversities. Chapter 2, by Nathanael Hishamunda, highlights the two categories of legal priorities, addressing the “supply side” of aquaculture, for example, through secure access rights and clean water protections – and the “demand side” – for example, through aquatic food safety standards (Nathanael Hishamunda, Chapter 2). The five chapters in Part II describe Canadian experiences and challenges in implementing sustainability principles in relation to aquaculture. Chapter 3, by David VanderZwaag, Gloria Chao and Mark Covan, gauges how ade- quately the federal government, British Columbia and the four Atlantic provinces (New Brunswick, Nova Scotia, Prince Edward Island and New- foundland and Labrador) have implemented four key principles: integration, precaution, environmental impact assessment and public participation (including social equity). The chapter concludes by suggesting ways forward for ensuring more principled decision-making in Canadian coastal/ocean governance, including the need to strengthen public participation in 4 David L. VanderZwaag environmental impact assessment of aquaculture proposals and to fully incorporate sustainability principles into provincial aquaculture laws, particularly the presently ignored principle of social equity. In Chapter 4, Phillip Saunders and Richard Finn summarize Canada’s limitations in applying a principled approach to property rights in aquaculture and high- light a critical flaw in ensuring secure access to marine aquaculture sites, namely the lack of federal legislation legitimizing interferences with public rights to fish. Chapter 5, by Moira McConnell, explores the nature of aquaculture siting conflicts and, drawing from Norwegian and Canadian experiences, concludes that a strategic sea-use planning process is necessary for aquaculture to achieve its full potential. In Chapter 6, Aldo Chircop examines the largely unexplored relationship between mariculture activities and maritime law, also referred to as admiralty law. The legal status of maritime installations, mariculture workers and safety standards applicable to offshore work sites is reviewed. Chapter 7, by Faye Woodman, discusses the appropriateness of the agricultural model of taxation to aquaculture operations and looks at non-income taxes, including sales taxes and property taxes, and the appropriateness of aquaculture leaseholder fees and license fees. Part III covers the largely unaddressed issues of how indigenous rights in the offshore may interact with aquaculture access and operations. In Chapter 8, Diana Ginn focuses on whether the doctrine of aboriginal title, developed by the courts in relation to land, could also apply to submerged marine areas, and she speculates on how the concept of aboriginal title might be rec- onciled with existing common law rights, such as navigation and fishing rights, and international rights such as the right of innocent passage for shipping. In Chapter 9, Ronalda Murphy, Richard Devlin and Tamara Lorincz review Canadian jurisprudence on the duty to consult with aboriginal communities and the potential impacts of the duty on proposed aquaculture developments. Chapter 10, by Douglas Sanders, surveys international developments relating to indigenous rights to lands, fisheries, the foreshore and the offshore and briefly reviews the still incomplete attempts of Aus- tralia, Canada and New Zealand to resolve indigenous rights that complicate the granting of secure tenures. Part IV highlights some of the international trade law and policy dimensions in aquaculture. In Chapter 11, Ted McDorman and Torsten Ström examine how far countries may utilize trade measures to protect the health and safety of citizens from imported aquaculture products without violating international trade rules. Chapter 12, by John Phyne, Richard Apostle and Gestur Hovgaard, tracks the evolution of European Union food safety policies and emphasizes the potential consequences for salmon exports from coastal communities, using case studies from Norway and the Faroe Islands. Douglas Moodie, in Chapter 13, summarizes the international legal framework for addressing genetically modified aquatic organisms and reviews the adequacy of Canadian regulatory approaches. Introduction 5 Part V provides a comparative perspective on how three developed countries have approached aquaculture governance. The legal frameworks applicable to mariculture in the United States (Jeremy Firestone, Chapter 14), Australia (Marcus Haward, Chapter 15) and New Zealand (Hamish Rennie, Chapter 16) are reviewed and critiqued. Through global and national comparative perspectives, with an emphasis on Canadian approaches and challenges in moving towards principled aquaculture governance for coastal and offshore areas, this monograph is aimed at partially filling the relative vacuum in aquaculture law studies. Existing books with an aquaculture law and policy focus are either quite dated41 or largely focused on a single country.42 The overall reality that emerges from the multiple chapters that follow is that Canada and other countries are still struggling to modernize law and policies in the wake of fast-paced aquaculture developments.43 Major challenges include, among others, the need to overcome a “free-market” mental- ity to aquaculture leasing and licensing;44 to place aquaculture developments within the context of integrated coastal/ocean management processes;45 to develop clear regulatory standards for aquaculture operations to ensure environmental and social health;46 and to forge political, bureaucratic and industry awareness and willingness to change existing laws in light of sustainability principles.47 One of the greatest challenges may be to reach societal consensus on what appropriate aquaculture policies should be48 – for example, whether transgenic fish should be allowed to be produced and marketed49 and whether the farming in open cages or pens of non-native carnivorous fishes, requiring high feed inputs, releasing wastes and carrying disease, parasite and escape threats, should be encouraged.50 Lessening ecosystem impacts may occur through better management practices for non-enclosed systems,51 but the transition to enclosed and recirculating systems seems likely to hasten in light of growing demands to follow precautionary and ecosystem approaches and to minimize impacts of every kind.52 Building a boat while navigating rough seas is an image portrayed in the concluding chapter of this volume by Arthur Hanson. That picture amply captures the law and policy struggles facing many countries in the wake of the blue revolution.

Notes 1 “Special Report: Fish Farming: The Promise of a Blue Revolution,” (2003) 368 (8336) The Economist 20. 2 FAO Fisheries Department, The State of World Fisheries and Aquaculture (Rome: Food and Agriculture Organization of the United Nations, 2004) at 14. 3 Ibid. 4 Cécile Brugère and Neil Ridler, “Global Aquaculture Outlook in the Next Decades: An Analysis of National Aquaculture Production Forecasts to 2030,” FAO Fisheries Circular 1001 (Rome: FAO, 2004) at 8. 6 David L. VanderZwaag 5 It is estimated that in 2003 about half (52 percent) of the fish stocks monitored were fully exploited while approximately one-quarter were overexploited, depleted or recovering from depletion. FAO, supra note 2 at 32. 6 See B. T. Hargrove, “Far-Field Environmental Effects of Marine Finfish Aqua- culture,” in A Scientific Review of the Potential Environmental Effects of Aquaculture in Aquatic Ecosystems, Vol. I (2003) Canadian Technical Report on Fisheries and Aquatic Sciences 2450 [Scientific Review Vol. I] and D. J. Wildish, M. Dowd, T. F. Sutherland and C. D. Levings, “Near-Field Organic Enrichment from Marine Finfish Aquaculture,” in A Scientific Review of the Potential Environmental Effects of Aquaculture in Aquatic Ecosystems, Vol. III (2004) Canadian Technical Report on Fisheries and Aquatic Sciences 2450 [Scientific Review Vol. III]. 7 See Martin Kikosck, Mark A. Lewis and John P. Volpe, “Transmission Dynam- ics of Parasitic Sea Lice from Farm to Wild Salmon,” (2005) 272 Proceedings of the Royal Society B: Biological Sciences 689. See also, C. E. Nash, P. R. Burbridge and J. K. Volkman, eds., Guidelines for Ecological Risk Assessment of Marine Fish Aquaculture, U.S. Dept. of Commerce, NOAA Tech. Memo NMFS–NWFSC–71 (2005) at Appendix D. 8 See Rosamond Naylor, Kjetil Hindar, Ian A. Fleming, Rebecca Goldburg, Susan Williams, John Volpe, Fred Whoriskey, Josh Eagle, Dennis Kelso and Marc Mangel, “Fugitive Salmon: Assessing the Risks of Escaped Fish from Net- Pen Aquaculture,” (2005) 55(5) BioScience 427; and ICES Mariculture Commit- tee, “Report of the Working Group on Environmental Interactions of Mariculture (WGEIM), 5–9 April 2004, Galway, Ireland” at Annex 6. 9 See, for example, L. E. Burridge, “Chemical Use in Marine Finfish Aquaculture in Canada: A Review of Current Practices and Possible Environmental Effects,” in Scientific Review Vol. I, supra note 6. 10 For a discussion of the difficult problems surrounding “common pool” resources, see Jan Willem Van Der Schans, “Governing Aquaculture: Dynamics and Diver- sity in Introducing Salmon Aquaculture Farming in Scotland,” in Jan Kooiman, Martijn van Vliet and Svein Jentoft, eds., Creative Governance: Opportunities for Fish- eries in Europe (Aldershot, UK: Ashgate Publishing, 1999) at 102–103. 11 Michael L. Weber, What Price Farmed Fish: A Review of the Environmental and Social Costs of Farming Carnivorous Fish (Providence, RI: Sea Webb Aquaculture Clearinghouse, 2003) at 11–12. 12 See Ronald A. Hites, Jeffrey A. Foran, David O. Carpenter, M. Coreen Hamil- ton, Barbara A. Knuth and Steven J. Schwager, “Global Assessment of Organic Contaminants in Farmed Salmon,” (2004) 303 (5655) Science 226. 13 See Health Canada, “Food Safety and PCBs Found in Fish” (12 January 2004). Online. Available http://www.hc-sc.gc.ca/ahc-asc/media/nr-cp/2004/2004_pcb- bpc_e.html (accessed 23 September 2005). 14 Weber, supra note 11 at 28. 15 While fishmeal use in aquaculture during 1994 was estimated to be 17 percent of the world’s production, by 2000 aquaculture consumed about 35 percent of the world’s fishmeal. Christopher L. Delgado, Nikolas Wada, Mark. W. Roseg- rant, Siet Meijer and Mahfuzuddin Ahmed, Fish to 2020: Supply and Demand in Changing Global Markets (Washington, DC: International Food Policy Research Institute, 2003) at 83. 16 See Douglas J. R. Moodie, “The Cautious ‘Frankenfish’: Environmental Protec- tion and other Canadian Regulatory Issues Relating to Transgenic Fish,” (2004) 1 Macquarie Journal of International and Comparative Environmental Law 49. 17 See FAO Committee on Fisheries, “Report of the Second Session of the Sub- Committee on Aquaculture, Trondheim, Norway, 7–11 August 2003,” FAO Fisheries Report No. 716 (Rome: FAO, 2003) at 11. Introduction 7 18 See Roger S. V. Pullin and U. Rashid Sumaila, “Aquaculture,” in Jan Kooiman, Maarten Bavinck, Svein Jentoft and Roger Pullin, eds., Fish for Life: Interactive Governance for Fisheries (Amsterdam: Amsterdam University Press, 2005) at 103. 19 For a good review of aquaculture regulatory approaches in European and Scandinavian countries, see the special issues of the Journal of Applied Ichthyology (2000, Vol. 16). 20 Secretariat of the Convention on Biological Diversity, “Solutions for Sustainable Mariculture: Avoiding the Adverse Effect of Mariculture on Biological Diver- sity,” CBD Technical Series No. 12 (2004) at 38. 21 See, for example, S. M. Bower and S. E. McGladdery, “Disease Interactions between Wild and Cultured Shellfish,” Scientific Review of the Potential Environ- mental Effect of Aquaculture in Aquatic Ecosystems, Vol. II, Canadian Technical Report on Fisheries and Aquatic Sciences 2450; and P. Crawford, M. Dowd, J. Grant, B. Hargrave and S. McGladdery, “Ecosystems Level Effects of Marine Bivalve Aquaculture,” in Scientific Review Vol. I, supra note 6. 22 Delgado et al., supra note 15 at 78. 23 For a review of regional agreements/arrangements addressing marine pollution, see Elizabeth A. Kirk, “Protection of the Marine Environment from Land-Based Activities,” (2003) 14 Yearbook of International Environmental Law 287. 24 One of the exceptions is the North Atlantic Salmon Conservation Organization (NASCO), which has developed Protocols for the Introduction and Transfer of Salmonids and various guidelines including Guidelines on Containment of Farm Salmon and Guidelines for Action on Transgenic Salmonids. See Resolution of the Parties to the Convention for the Conservation of Salmon in the North Atlantic Ocean to Minimise Impacts from Aquaculture, Introductions and Transfers, and Transgenics in Wild Salmon Stocks (the Williamsburg Resolu- tion, adopted at the Twentieth Annual Meeting of NASCO in June 2003 and amended at the Twenty-first Meeting of NASCO in June 2004) CNL (04) 54. 25 For example, the Sub-Committee on Aquaculture of the FAO Committee on Fisheries has noted that import and export standards for aquaculture products vary between countries and regions and has urged the FAO to assist in the harmonization of health and safety standards through the Codex Alimentarius Commission process. FAO Committee on Fisheries, supra note 17 at para. 47. 26 See generally, Jan Kooiman et al. supra note 18. 27 See Jan Kooiman and Maarten Bavinck, “The Governance Perspective,” in Jan Kooiman et al., supra note 18 at 21–22. 28 For a discussion of the loss of confidence in science in the postmodern era and the difficult task facing decision-makers of defining and weighing competing or con- flicting social interests, see Nicholas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford: Oxford University Press, 2002) at 247–251. 29 On the need for aquaculture to be ecologically and socially responsible and to embrace appropriate technologies and support coastal community well-being, see Barry A. Costa-Pierce, “Ecology as the Paradigm for the Future of Aquacul- ture,” in Barry A. Costa-Pierce, ed., Ecological Aquaculture: The Evolution of the Blue Revolution (Oxford: Blackwell Science, 2002) at 364–365. 30 For example, almost every post-1980s international environmental agreement, including the 1992 Convention on Biological Diversity and the UN Framework Con- vention on Climate Change, articulate a version of the precautionary principle/approach. See Carolyn Raffensperger and Joel A. Tickner, eds., Protect- ing Public Health and the Environment: Implementing the Precautionary Principle (Washington, DC: Island Press, 1999) at Appendix B. 31 For example, the Rio Declaration on Environment and Development, 14 June 1992, 31 I.L.M. 874 (1992), sets out twenty-seven principles to guide states 8 David L. VanderZwaag towards achieving sustainable development. For a review of the relevance of the principles in the ocean context, see Jon M. Van Dyke, “The Rio Principles and Our Responsibilities of Ocean Stewardship,” (1996) 31 Ocean and Coastal Man- agement 1. 32 For example, the FAO Code of Conduct for Responsible Fisheries, meant to apply both to capture fisheries and to aquaculture, sets out various general principles in Art. 6, including the precautionary approach, public participation and notions of the ecosystem approach, and adds principles specific to aquaculture in Art. 9, such as the need to establish effective environmental impact assessment procedures specific to aquaculture. Food and Agriculture Organization of the United Nations, Code of Conduct for Responsible Fisheries (Rome: FAO, 1995). The Global Aquaculture Alliance (GAA) has adopted Guiding Principles for Responsible Aquaculture and various Codes of Practice for Responsible Shrimp Farming in order to help implement the principles. The guiding principles are available online. Available http://www.gaalliance.org/prin.html (accessed 23 September 2005). 33 For discussions regarding the normative importance of principles in directing and spurring public policy shifts, see de Sadeleer, supra note 28 at 249–251; Philippe Sands, “International Law in the Field of Sustainable Development: Emerging Legal Principles,” in Winfried Lang, ed., Sustainable Development and International Law (London: Graham & Trotman/Martinus Nijhoff, 1995); and Alhaji B. M. Marang, “From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development,” (2003) 16 Georgetown International Environmental Law Review 21. 34 For a recent review of how the principles of ecosystem health, social justice, livelihood and employment, and food security and safety are still filtering into governance practices, see Maarten Bavinck and Ratana Chuenpagdee, “Current Principles,” in Jan Kooiman et al., supra note 18 at 245–263. 35 One of the most contested principles is the precautionary principle, where debates continue not only over terminology (principle versus approach) but also over how strong precautionary measures should be and whether scientific risk assessment should be required to trigger precautionary actions. Whether the legal burden of proof should be placed upon development proponents is another contentious question. See David L. VanderZwaag, Susanna D. Fuller and Ransom A. Myers, “Canada and the Precautionary Principle/Approach in Ocean and Coastal Management: Wading and Wandering in Tricky Currents,” (2002–2003) 34 Ottawa Law Review 117. 36 This seems especially true of the principle of ecosystem-based management (often used interchangeably with the term “ecosystem approach”), where a “frag- mented array” of international articulations have occurred and key questions remain open, such as how healthy ecosystems are to be defined and what should be ecosystem conservation objectives and indicators. See Donald R. Rothwell and David L. VanderZwaag, “The Sea Change towards Principled Oceans Gov- ernance,” in Donald R. Rothwell and David L. VanderZwaag, Towards Principled Oceans Governance: Australian and Canadian Approaches and Challenges (London: Routledge, 2006). For some of the “articulations,” see FAO Fisheries Depart- ment, “The Ecosystem Approach to Fisheries,” FAO Technical Guidelines for Responsible Fisheries No. 4, Suppl. 2 (Rome: FAO, 2003); Decision VII/11 “Ecosystem Approach,” Conference of the Parties to the Convention on Biologi- cal Diversity. Online. Available http://www.biodiv.org/decisions/default. asp?lgϭ0&mϭcop-07&dϭ11 (accessed 23 September 2005); and K. L. McLeod, L. Lubchenco, S. R. Palumbi and A. A. Rosenburg, “Scientific Consen- sus Statement on Marine Ecosystem-Based Management” (Communication Introduction 9 Partnership for Science and the Sea 2005). Online. Available http://compasson- line.org/?qϭEBM (accessed 23 September 2005). 37 For example, the principle of integration has various shades of meaning including, among others, “integrated culturing,” where various species, such as fish, shellfish and seaweeds, are raised together in order to reduce wastes and maximize production and “integrated coastal zone management.” See M. Troell, C. Halling, A. Neori, T. Chopin, A. H. Buschmann, N. Kautsky and C. Yarish, “Integrated Mariculture: Asking the Right Questions,” (2003) 226 Aquaculture 69; A. Neori, T. Chopin, M. Troell, A. H. Buschmann, G. P. Kraemer, C. Halling, M. Shpigel and C. Yarish, “Integrated Aquaculture: Rationale, Evolu- tion and State of the Art Emphasizing Seaweed Biofiltration in Modern Aqua- culture,” (2004) 231 Aquaculture 361; and S. M. Stead, G. Burnell and P. Goulletquer, “Aquaculture and Its Role in Integrated Coastal Zone Manage- ment,” (2002) 10 Aquaculture International 447. 38 For a discussion of potential synergies among principles, see David Van- derZwaag, “The Precautionary Principle and Marine Environmental Protection: Slippery Shores, Rough Seas, and Rising Normative Tides,” (2002) 33 Ocean Development and International Law 165 at 174–175. 39 Code of Conduct, supra note 32, Art. 9.1.1. 40 Network of Aquaculture Centres in Asia-Pacific (NACA) and FAO, Aquaculture Development beyond 2000: The Bangkok Declaration and Strategy, Conference on Aquaculture in the Third Millennium, 20–25 February 2000, Bangkok, Thailand (Bangkok: NACA, and Rome: FAO, 2000). 41 See Thomas E. Kane, Aquaculture and the Law (Miami: University of Miami Sea Grant Program, 1970); and Bruce H. Wildsmith, Aquaculture: The Legal Frame- work (Toronto: Emond-Montgomery, 1982). 42 See William Howarth, The Law of Aquaculture: The Law Relating to the Farming of Fish and Shellfish in Britain (Oxford: Fishing News Books, 1990); and Henry D. McCoy II, American and International Aquaculture Law: A Comprehensive Legal Treatise and Handbook Covering Aquaculture Law, Business and Finance of Fishes, Shellfish, and Aquatic Plants (Peterstown, WV: Supranational Publishing Company, 2000) (focusing mainly on the United States). 43 For a review of needed legislative improvements in Madagascar, Malawi, Mozambique, Nigeria and Zambia, see R. D. Percy and N. Hishamunda, Promo- tion of Sustainable Commercial Aquaculture in Sub-Saharan Africa, vol. 3: Legal, Reg- ulatory and Institutional Framework, FAO Fisheries Technical Paper No. 408/3 (Rome: FAO, 2001). 44 For example, as discussed in Chapter 3 by VanderZwaag, Chao and Covan, Canada has not sought to control corporate ownership for aquaculture sites and has not through existing aquaculture laws ensured priority access to coastal communities and residents. 45 See FAO, Fishery Department Planning Service, Fisheries Department, Integra- tion of Fisheries into Coastal Area Management, FAO Technical Guidelines for Responsible Fisheries No. 3 (Rome: FAO, 1996). 46 The general lack of regulatory standards based upon indicators of environmen- tally sound aquaculture has been noted and the example of Japan given, where some regulatory standards have been set, such as a limitation on the quantity of sulfide in the mud under fish cages and the requirement that benthos, like lug- worms, be present in the mud. See Secretariat of the Convention on Biological Diversity, supra note 20 at 40. 47 An example of the challenge can be seen in Canada, where the Canadian government has not shown a willingness to pass federal aquaculture legislation even though such legislation seems essential in light of provincial offshore jurisdic- 10 David L. VanderZwaag tional limitations and the need for federal legislation to authorize interferences with public rights to fish. See Chapters 3 (VanderZwaag, Chao and Covan) and 4 (Saunders) in this volume. 48 A component of the challenge may be determining what approach or combina- tion of approaches should be followed to develop policies: for example, developing an overall aquaculture policy through public consultation, applying strategic environmental assessment to a proposed aquaculture policy and holding a referendum on a proposed policy. 49 See Chapter 13 (Moodie) in this volume. 50 The great challenge is that many of these species currently farmed also have the greatest market value, and substantial investments in equipment have already been made. See Jane Lubchenco, “The Blue Revolution: A Global Ecological Perspective,” (2003) 34(4) World Aquaculture 8 at 10. 51 Better management practices may include, for example, better siting to ensure proper water circulation, using polyculture, improving utilization of feeds and reformulating feeds. Secretariat of the Convention on Biological Diversity, supra note 20 at 26. 52 For advocacy for such a transition, see Secretariat of the Convention on Biologi- cal Diversity, supra note 20 at 26.