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 aqua- culture 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 aqua- culture 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 regu- lation 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 aquacul- ture development.22 Regional agreements and arrangements have tended to focus on transboundary fisheries and pollution challenges23 and have gener- ally 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 bureau- cratic 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 prin- ciples 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 aqua- culture 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 confer- ence in February 2000 involving some 540 participants from sixty-six coun- tries 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 mar- itime 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 aqua- culture 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,