Preventing Salmon Escapes from Aquaculture in Canada and the USA: Limited International Coordinates, Divergent Regulatory Currents and Possible Future Courses
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Schulich School of Law, Dalhousie University Schulich Law Scholars Articles, Book Chapters, & Blogs Faculty Scholarship 2007 Preventing Salmon Escapes from Aquaculture in Canada and the USA: Limited International Coordinates, Divergent Regulatory Currents and Possible Future Courses David VanderZwaag Tricia Barry Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/scholarly_works Part of the Environmental Law Commons RECIEL 16 (1) 2007. ISSN 0962 8797 BlackwellPREVENTINGORIGINAL Publishing ARTICLE SALMON Ltd ESCAPES FROM AQUACULTURE IN CANADAPreventing and THE USA Salmon Escapes from Aquaculture in Canada and the USA: Limited International Coordinates, Divergent Regulatory Currents and Possible Future Courses Tricia K. Barry and David L. VanderZwaag Following an introductory review of the continuing November 2005, tens of thousands of mature salmon problem of salmon escaping from aquaculture opera- escaped in New Brunswick.4 tions along the Atlantic and Pacific coasts of North America, and the considerable uncertainties over Preventing escapes has been a challenge because of ecological impacts, this article examines the law and the multiple ways that releases can occur. Among the policy context for preventing escapes from three per- causes of escapes are poor net maintenance, storm spectives. First, the limited guidance for addressing damage, accidental losses during transfers, tearing of aquaculture escapes under existing global and regional nets by boat collisions or predators, and vandalism.5 agreements/arrangements is highlighted. Second, how Canada and the USA have sought to control escape events While considerable uncertainties continue to exist over at national and provincial/State levels is summarized. the impacts of escaped salmon, the capacity for escapees Third, possible future courses are identified, which to affect wild salmon stocks adversely is becoming improve the way salmon escapes are addressed, with increasingly documented.6 Impacts of concern include stronger regional responses suggested as most promis- hybridization; colonization by establishing significant, ing. Enhancing the North Atlantic Salmon Conservation self-sustaining runs;7 interbreeding causing reduced Organization’s role in preventing escapes and placing transboundary aquaculture issues on the agendas of 4 See Atlantic Salmon Federation (ASF) – Communications, North Pacific regional cooperative arrangements are the Conservationists Fed Up with Government’s Inaction on Farmed potential courses emphasized. Salmon Escapes (ASF, 16 November 2005), available at <http:// www.asf.ca/Communications/2005/11/farmedescapes2.html>. 5 See M.L. Brenninkmeyer, ‘The Ones That Got Away: Regulating INTRODUCTION Escaped Fish and Other Pollutants from Salmon Fish Farms’, 27:1 B.C. Envtl. Aff. L. Rev. (1999), 75, at 83. Four confirmed acts of Escape of farmed salmon into the marine environment, vandalism in Canada in 2005 resulted in approximately 150,000 farmed fish being released to the wild. See NASCO, Report of the Twenty-Third while difficult to estimate accurately due to limited Annual Meeting of the Council, Saariselkä Finland (CNL(06)46, 1 reporting, is worrying because of the large numbers 9 June 2006), at 210 (‘Report of the Twenty-Third Meeting’). of escapes known to have occurred. For example, in 6 C. Clover, ‘Wild Salmon Put at Risk as a Million Farmed Fish Escape’, British Columbia (BC), between 1987 and 2000, 87 The Daily Telegraph (29 August 2006), available at <http://www.telegraph. co.uk/news/main.jhtml?xml=/news/2006/08/29/nfish29.xml>. escape incidents were reported with a loss of 1,313,237 7 2 Two recent studies have demonstrated the effect of escapes on fish. In Washington State, from 1996 to 1998, three wild species. A study that simulated escapes over 10 years in the 3 large-scale events allowed 595,000 fish to escape. In Atlantic Ocean near Scotland found that farmed Atlantic salmon have both a genetic and competitive impact on wild populations because over 1 J. Volpe, Super Un-Natural – Atlantic Salmon in BC Waters (David time the two species will interbreed and the next generation of hybrids Suzuki Foundation, 2001), at 15, available at <http://www.davidsuzuki. has shown reduced survival and adult return. See P. McGinnity et al., org/files/Super_Un_Natural.pdf> ‘Fitness Reduction and Potential Extinction of Wild Populations of 2 See British Columbia Ministry of Agriculture and Lands, Aquaculture Atlantic Salmon Salmo salar as a Result of Interactions with Escaped Development Branch, Escape Statistics (British Columbia Ministry of Farm Salmon’, 270:1532 Proceedings Royal Society London B Agriculture and Lands, 2005), available at <http://www.agf.gov.bc.ca/ (7 December 2003), 2443, available at: <http://www.journals.royalsoc. fisheries/escape/escape_reports.htm>. ac.uk/(2miepx45ddk1usrvl0pu3myv)/app/home/journal.asp?referrer 3 See Alaska Department of Fish and Game – Southeast Region, =parent&backto=linkingpublicationresults,1:102024,1&linkin=>. In Atlantic Salmon: A White Paper (Alaska Department of Fish and Game, another article, the biological and socioeconomic risks of escapes 2002), at 1, available at <http://www.state.ak.us/adfg/geninfo/special/As/ were found to be large ‘when salmon are farmed in their native range, docs/As_white2002.pdf> (‘White Paper’). when large numbers of salmon are farmed relative to the size of the © 2007 The Authors. Journal compilation © 2007 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 58 Electronic copy available at: https://ssrn.com/abstract=2101241 RECIEL 16 (1) 2007 PREVENTING SALMON ESCAPES FROM AQUACULTURE IN CANADA and THE USA genetic diversity and fitness; predation of native species; Diversity (CBD),13 and the United Nations Food and competition for space or resources potentially disrupting Agriculture Organization Code of Conduct for Respon- wild salmon production; disease transmission; and modi- sible Fisheries (‘FAO Code’) (also meant to apply to fication or destruction of the habitat of native species.8 aquaculture operations)14 include provisions relevant to the issue of salmon escapes. For the North Atlantic The ability of escaped salmon to move across national region, the North Atlantic Salmon Conservation Organ- boundaries raises transboundary management issues ization (NASCO) has addressed issues of escape in and challenges. Most sonically tagged farmed Atlantic various ways, including adoption of Guidelines on salmon released in Maine followed the dominant tidal Containment of Farm Salmon (NASCO Guidelines),15 currents into Canadian waters.9 Quite a few salmon while the Gulf of Maine Council on the Marine Environ- occurring in rivers in Maine are suspected to have ment has largely ignored transboundary escape concerns. originated from releases in Canada.10 On the west coast, For the North Pacific region, the two legal agreements Atlantic salmon, not allowed to be reared in aquaculture aimed at conserving wild salmon, the Pacific Salmon off the coast of Alaska, have been found in Alaskan Treaty (PST)16 and Convention for the Conservation of waters with estimates that about 3000 escaped salmon Anadromous Stocks in the North Pacific Ocean,17 have may be present annually.11 not spawned efforts to address escaped salmon, while the British Columbia/Washington State Environmental This article examines prevention of escape challenges and Cooperation Agreement has not been extended to cover approaches through a three-part discussion. A review escaped salmon.18 of the limited global and regional coordinates in law and policy is followed by an overview of how Canada (including British Columbia and the Atlantic provinces) GLOBAL COORDINATES and the USA (including Washington State and Alaska) have sought to control escape events. The article then Law of the Sea Convention Besides setting out suggests possible future courses to improve the way general obligations on States to protect and preserve the salmon escapes are addressed, including possible amend- marine environment,19 to undertake environmental impact ments to existing conventions in place to conserve wild assessment of proposed activities that may cause signi- salmon stocks. ficant and harmful changes to the marine environment20 and to protect/preserve the habitat of threatened or endangered species,21 the UNCLOS has only one article LIMITED GLOBAL AND especially relevant to escaped salmon. Article 196 requires States to ‘take all measures necessary to prevent, reduce REGIONAL COORDINATES and control . the intentional or accidental introduc- tion of species, alien or new, to a particular part of the In the absence of a global treaty specific to aquaculture, marine environment, which may cause significant and and with no formal US–Canada agreements specifically harmful changes thereto’. While this provision is poten- targeting aquaculture developments carrying trans- tially applicable to the introduction of non-native salmon boundary threats, international law and policy coordin- in marine waters, it leaves considerable room for inter- ates relevant to salmon escapes are limited and pretation as to what are ‘all necessary measures’. must be gleaned from existing global and regional agreements and arrangements. At the global level, the 1982 United Nations Convention on the Law of the 13 12 Convention on Biological Diversity (Rio de Janeiro, 5 June 1992). Sea (UNCLOS), the 1992 Convention on Biological 14 Food and Agriculture Organization Code of Conduct for Responsible