RSNL1990 CHAPTER A-13 - AQUACULTURE ACT - Point in Time

Short title

1. This Act may be cited as the Aquaculture Act.

1987 c15 s1

Definitions

2. In this Act

(a) "aquaculture" means the farming of fish, molluscs, crustaceans, aquatic plants and other aquatic organisms with an intervention in the rearing process to enhance production by regular stocking, feeding, and protection from predation, and includes fallowing and processes to mitigate environmental degradation and the placement of necessary gear and equipment;

(b) "aquaculture facility" means

(i) a site where aquaculture is being carried on, or

(ii) a parcel of land with respect to which an application has been made to carry on aquaculture

and includes all structures, machinery, equipment and tools on the site or parcel of land;

(b.1) "aquaculture gear" means equipment used in the conduct of aquaculture to contain or provide means of attachment for aquaculture species and includes rope, socking material, collection material, nets, cages, sea pens, tanks, incubation equipment, raceways, transport tanks and containers;

(b.2) "aquaculture inspector" means an aquaculture inspector appointed under section 6;

(d) "aquatic plants or animals" means plants or animals that at all stages of their development or life cycles have water as their natural habitat;

(e) "department" means the department presided over by the minister;

(f) "land" includes land covered by water, both tidal and non-tidal, and the water column superjacent to it;

(g) "licensee" means a person to whom an aquaculture licence has been issued;

(h) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(i) "person" includes a partnership, association and a co-operative society registered under the Co-operatives Act ;

(j) [Rep. by 2005 c23 s1]

(k) "site" means a parcel of land on which a person has been authorized by a licence to carry on aquaculture;

(l) "strain" means aquatic plants or animals that have, or have been bred to have, genetic characteristics that distinguish them from other members of the same species; and

(m) "water" includes fresh, brackish and marine waters, both tidal and non-tidal.

1987 c15 s2; 1994 c39 s1; 2001 c6 s1; 2005 c23 s1

Purpose of Act

3. The purpose of this Act is to govern the conduct of aquaculture in the province in order to

(a) promote, in consultation with the private sector, the prudent and orderly development of an aquaculture industry;

(b) secure the property rights of those carrying on aquaculture;

(d) help in consultative and co-operative decision making within the province and between the government of the province and the Government of Canada.

1987 c15 s3

Labrador Inuit rights

3.1 (1) This Act and regulations made under this Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act or regulations made under this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act or a regulation made under this Act.

(2) Where, under this Act, the minister issues an aquaculture licence he or she may add to that licence terms and conditions that the licensee must comply with in order to ensure compliance with the terms and conditions of the Labrador Inuit Land Claims Agreement Act .

2004 cL-3.1 s16

Aquaculture licence

4. (1) A person shall not carry on aquaculture without an aquaculture licence for each site where aquaculture is carried on.

(2) A person who intends to carry on aquaculture shall apply to the minister, in writing, for an aquaculture licence for each site at which that person proposes to carry on aquaculture.

(3) An application made under subsection (2) shall include the information that the minister may require for each

(a) site; and

(b) species intended to be cultivated.

(4) An aquaculture licence shall

(a) contain a description of the site on which aquaculture may be conducted under the licence;

(b) specify the species of aquatic plants or animals that may be cultivated;

(d) specify the fee or rent payable to the Crown in respect of the licence;

(e) contain terms and conditions relating to access to a site, optimal resource utilization, health and safety and the environment;

(f) state that aquaculture shall be conducted under the licence with diligence, in a reasonable manner and in accordance with good husbandry practices; and

(g) specify those other terms and conditions that the minister may determine are necessary for the conduct of aquaculture by the licensee at the proposed aquaculture site.

(5) Where the land that is described in an aquaculture licence as the site on which aquaculture may be carried on is held by the licensee under a lease or other right of occupancy, the term of that licence shall not extend beyond the term of the lease or other right of occupancy.

(6) The minister may

(a) incorporate into an aquaculture licence a plan relating to

(i) health, safety and environmental matters, and

(ii) resource utilization and sustainable development;

(b) impose standards relating to the use, stocking, investment in or production of an aquaculture facility;

(d) require records to be kept and information and documents to be provided that the minister considers advisable;

(e) specify the source and strain, and require approval in advance of the source and strain, of all seed and stock to be cultivated;

(f) impose limits on the intensity with which aquaculture is conducted and organisms are concentrated at a site;

(g) specify measures to be taken to prevent the escape of aquatic animals and the development and spread of disease and parasites and to minimize the risk of damage to the environment or other aquaculture facilities;

(h) specify measures to be taken to minimize risk to other aquaculture facilities; and

(i) incorporate whatever other terms may be necessary to carry out the purpose of this Act.

(7) The minister shall not grant an aquaculture licence unless

(a) the proposed licensee owns, leases or otherwise has a right to occupy the parcel of land comprising the site at which the proposed licensee intends to carry on aquaculture; and

(b) Part X of the Environmental Protection Act has been complied with and an approval required by that Part has been given.

(8) Where an aquaculture site or facility or an activity at that site or facility is

(a) varied or intended to be varied to an extent that is not contemplated by the aquaculture licence issued for that site or facility; or

(b) purchased by a person who is not the licensee for that site or facility,

an application for an aquaculture licence for that site or facility shall be made under subsection (2).

(9) Notwithstanding subsection (8), the minister may vary or amend an existing aquaculture licence.

(10) The minister may suspend an aquaculture licence upon breach of a term, condition or provision of that licence, this Act or the regulations.

(11) Where the minister suspends an aquaculture licence under subsection (10), the licensee shall not harvest or remove aquatic plants or animals to or from the aquaculture site for which the aquaculture licence was suspended.

(12) A licensee who operates an aquaculture facility while his or her aquaculture licence is suspended is guilty of an offence.

(13) Notwithstanding subsections (11) and (12), a licensee shall maintain a site and aquaculture plants and animals through good husbandry practices while the aquaculture licence for that site is suspended.

(14) A suspension of an aquaculture licence under this section continues until the minister is satisfied that the breach causing the suspension is no longer continuing.

(15) The minister may cancel an aquaculture licence where a breach causing a suspension under subsection (10) has not been corrected within a reasonable time, for repeated breaches or if the licensee stops owning or holding a lease or right of occupancy for the site.

(16) An aquaculture licence or a certified copy of that licence shall be presented to an aquaculture inspector upon request or, where this is not possible, a licensee or another person responsible for the aquaculture facility for which the request was made shall present the requested licence or certified copy to the aquaculture inspector not later than 24 hours following the time when the request was made.

(17) Where a person does not renew an aquaculture licence or where an aquaculture licence is cancelled under this Act, the person who held the last valid aquaculture licence for a site shall remove from that site all aquaculture gear and shall restore that site to its natural state.

2005 c23 s2

Hazardous mooring

4.1 (1) The minister may establish criteria for shore fastened mooring systems at aquaculture facilities and aquaculture sites.

(2) Where, in the opinion of the minister or of an aquaculture inspector, a shore fastened mooring system poses a hazard to

(a) public safety;

(b) persons using an aquaculture site; or

the minister or aquaculture inspector may

(d) release, sever, untie or otherwise remove that shore fastened mooring system; or

(e) direct, in writing, a person to release, sever, untie or otherwise remove that shore fastened mooring system.

2005 c23 s2

Personal property rights

5. (1) All aquatic plants or animals of the species specified in an aquaculture licence are, while contained within the boundaries of the site, the exclusive personal property of, and belong to, the licensee, until sold, traded, transferred or otherwise disposed of by the licensee.

(2) Aquatic animals referred to in subsection (1) that escape shall remain the exclusive personal property of the licensee while within 100 metres of the boundary of the site.

1987 c15 s5

Inspection

6. (1) The minister may designate a person or a class of persons to be aquaculture inspectors for the purposes of this Act.

(2) An aquaculture inspector may at reasonable times so long as it is reasonably necessary to determine compliance with this Act or the regulations

(a) enter an aquaculture facility, except a dwelling house, for the purpose of inspecting the aquaculture facility; or

(b) enter onto land, including buildings or other enclosures on that land, except a dwelling house, where the inspector has reason to believe aquaculture is being conducted.

(3) In carrying out the inspection referred to in subsection (2), the aquaculture inspector shall have regard to

(a) the presence of disease or parasites and the likelihood of either disease or parasites developing;

(b) the adequacy of measures being taken to ensure aquatic plants or animals being cultured do not escape;

(d) compliance with the terms, conditions and provisions of the aquaculture licence, this Act and the regulations.

(4) A person responsible for an aquaculture facility shall provide the information, documents and samples and carry out the tests and examinations that an aquaculture inspector may reasonably require.

(5) Where he or she considers it necessary, an aquaculture inspector may direct a licensee or other person responsible for an aquaculture facility to take measures

(a) to prevent the escape of an organism;

(b) to prevent the development or spread of disease or parasites, including the destruction of stock and the disinfection of gear and facilities; and

(c) to ensure that aquaculture is conducted in accordance with the terms, conditions and provisions of a licence, this Act and the regulations.

(6) The minister may suspend an aquaculture facility licence where the licensee or other person responsible for that aquaculture facility does not comply with subsection (4) or (5).

(6.1) Where the minister suspends an aquaculture licence under subsection (6), the licensee shall not harvest or remove aquatic plants or animals to or from the aquaculture site for which the aquaculture licence was suspended.

(6.2) A licensee who operates an aquaculture facility while his or her aquaculture licence is suspended under subsection (6) is guilty of an offence.

(6.3) Notwithstanding subsections (6.1) and (6.2), a licensee shall maintain a site and aquaculture plants and animals at that site through good husbandry practices while the aquaculture licence for that site is suspended.

(7) A suspension under subsection (6) continues until the minister is satisfied that the breach causing the suspension is no longer continuing.

(8) The minister may cancel a licence where a breach causing a suspension under subsection (6) has not been corrected within a reasonable time or for repeated breaches.

(9) Where an aquaculture inspector determines that a person is engaged in aquaculture without having obtained the appropriate licence, he or she may direct a person to take a measure referred to in paragraphs (5)(a) to (c) or to stop his or her activities or to immediately apply for a licence.

1987 c15 s6; 1994 c39 s3; 2005 c23 s3

Action prohibition

6.1 (1) The minister, an aquaculture inspector or an employee of the department or other person authorized under this Act is not personally liable in an action or a proceeding for or in respect of an act or thing done or omitted by him or her in good faith in the exercise or purported exercise of his or her duties or powers under this Act or for costs in connection with an action or proceeding.

(2) A person is not entitled to compensation from the government of the province for a loss or damages resulting as a consequence of a direction made or action taken under subsection 4.1(2).

2005 c23 s4

Report of disease

7. (1) A licensee shall immediately report to the minister or an aquaculture inspector an outbreak of disease or parasites.

(2) A licensee shall take all measures that the minister or an aquaculture inspector may direct to prevent the spread of disease or parasites, including the destruction of stock and the disinfection of gear and facilities.

1987 c15 s7

Introduction, transfer and transport

8. (1) A person shall not introduce, transfer or transport live aquatic plants or animals from 1 body of water or aquaculture facility in the province to a 2nd body of water or aquaculture facility in the province, or from outside the province to a body of water or aquaculture facility in the province, without the prior written approval of the minister or a person whom the minister may by order designate.

(2) An approval granted by the minister under subsection (1) may be subject to those terms and conditions, including inspection and supervision, that the minister considers advisable.

(3) The minister shall not approve the introduction into or transfer to a body of water or aquaculture facility in the province of a species or strain of aquatic plants or animals not present in that body of water or that aquaculture facility unless the impact of that introduction or transfer has been assessed in accordance with the Part X of the Environmental Protection Act, whether or not that introduction or transfer is an activity of the type otherwise requiring assessment under that Act.

(4) Nothing in subsection (3) shall be taken to require an assessment where the minister responsible for the Part X of the Environmental Protection Act has determined that no risk is posed to the environment or natural stocks of aquatic plants or animals.

(5) An assessment under subsection (3) or a determination under subsection (4) shall be made on the assumption that the aquatic plants or animals proposed for introduction or transfer will escape into the natural environment.

1987 c15 s8; 1994 c39 s4; 2005 c23 s5

Registrar

9. (1) The minister may designate a person in the department to be Registrar of Aquaculture.

(2) The registrar shall keep copies and records of aquaculture licences, leases of land granted for aquaculture purposes under the Lands Act, environmental preview reports and environmental impact statements prepared under the Part X of the Environmental Protection Act and other documents that the minister may direct or that may be prescribed.

(3) The records kept by the registrar under subsection (2) shall be open for inspection by members of the public during office hours upon payment of a prescribed fee.

(4) Notwithstanding subsection (3), information prescribed as confidential shall not be available to the public.

(5) The registrar may carry out a function or perform a duty delegated to him or her under an Act or regulation of Canada .

1987 c15 s9; 1991 c36 s74; 2005 c23 s6

Committees

10. The minister may establish committees consisting of officials of the department, the aquaculture industry and others to advise him or her of laws, regulations, policies, programs and activities of government that will help in the development of aquaculture.

1987 c15 s10

Regulations

11. The Lieutenant-Governor in Council may make regulations

(a) [Rep. by 1998 c24 s2]

(b) determining and prescribing categories of licences, including research, experimental, developmental, temporary, commercial or other types of licences, and the terms and conditions relating to each category of licence;

(i) an aquaculture licence,

(ii) an approval to introduce, transfer or transport aquatic plants or animals, and

(iii) another licence, permission or approval required by this Act or the regulations;

(d) respecting terms and conditions to which an aquaculture licence or an approval to introduce, transfer or transport aquatic plants or animals may be subject or under which such a licence or approval may be issued;

(e) prescribing the use, content and enforcement of development plans for sites;

(f) prescribing performance standards for aquaculture facilities;

(g) prescribing limitations and qualifications related to who may receive an aquaculture licence;

(h) prescribing maximum sizes for aquaculture facilities;

(i) prescribing the number of aquaculture licences that may be held by 1 person;

(j) [Rep. by 1998 c24 s2]

(k) prescribing rules, procedures, composition, functions and powers of committees created under this Act;

(l) respecting, subject to the Plant Protection Act, the introduction into and the transfer and transport of aquatic plants in the province and from place to place within the province, including the conducting of environmental assessments in relation to that introduction, transfer or transport;

(m) respecting, subject to the Plant Protection Act, the isolation, quarantining, disposal or destruction of aquatic plants that are diseased or contain parasites and the disinfection of related gear, equipment, tanks, ponds and other facilities;

(n) respecting the introduction into and the transfer and transport of aquatic animals in the province and from place to place within the province, including the conducting of environmental assessments in relation to that introduction, transfer or transport;

(o) respecting the isolation and quarantining, disposal or destruction of aquatic animals that are diseased or contain parasites and the disinfection of related gear, equipment, tanks, ponds and other facilities;

(p) respecting the duties and powers of aquaculture inspectors;

(q) respecting the marking of aquaculture facilities so as to provide notice to all persons;

(r) respecting the exemption of persons or classes of persons or types of aquaculture or activities from the application of all or part of this Act or the regulations;

(s) respecting the rent payable for an aquaculture licence;

(t) respecting the duties of, and the records and documents to be kept by the Registrar of Aquaculture and other matters pertaining to the proper conduct and operation of a registry of aquaculture records;

(u) classifying information in the records of the Registrar of Aquaculture as confidential;

(v) prescribing standards relating to the construction, layout, equipping and operation of an aquaculture facility;

(w) respecting methods of handling, buying, selling, holding in possession, offering or advertising for sale, processing and maintaining the quality of aquatic plants or animals;

(x) [Rep. by 1998 c24 s2]

(y) respecting information and documents to be provided to the minister by a licensee concerning the use, productivity, investment and obligations of the licensee in respect of an aquaculture facility and other matters pertinent to the conduct of aquaculture and the marketing and sale of aquaculture produce by the licensee;

(z) respecting the establishment of compensation schemes for the purpose of this Act;

(aa) respecting the establishment of insurance schemes for the purpose of this Act;

(bb) defining a word or expression used in this Act and not defined in this Act;

(cc) prescribing procedures by which the neighbouring land owners, municipalities, other affected or interested persons and the general public may participate in helping the minister in his or her decision whether to grant an aquaculture licence, and if so on what terms or conditions, including the manner in which the applicant, the minister or a designate or others are to meet with, provide information to and record the opinions, concerns and questions of those participating; and

(dd) prescribing the manner of identifying and disposing of aquatic plants or animals or aquaculture gear under subsections 13.1(9), (10) and (12).

1987 c15 s11; 1988 c54 s3; 1994 c39 s5; 1997 c13 s2;1998 c24 s2

Fees and forms

11.1 The minister may set fees and prescribe forms for the purpose and administration of this Act.

1997 c13 s2

Regulations

11.2 The minister may make regulations

(a) respecting optimal resource utilization and sustainable development;

(b) respecting matters related to health, safety and the protection of the environment;

(c) prescribing the marking of aquaculture gear, of the boundaries of a site and any other markings or identification; and

(d) respecting the use, or prohibiting the use, of chemicals, fertilizers, vaccines, drugs, feed, and other substances in the conduct of aquaculture.

1998 c24 s3

Prohibition

12. A person shall not harvest aquatic plants or animals in an aquaculture facility without the consent of the licensee.

1987 c15 s12

Rep. by 2005 c23 s7

13. [Rep. by 2005 c23 s7]

2005 c23 s7

Seizure

13.1 (1) Where an aquaculture inspector believes on reasonable grounds that a person has contravened this Act or the regulations, the aquaculture inspector may, with a warrant issued under subsection (2), seize all aquatic plants or animals and aquaculture gear in relation to which he or she reasonably believes the offence was committed.

(2) A Provincial Court judge who is satisfied by an information upon oath or affirmation that there are reasonable grounds for believing that there is at a place anything that there are reasonable grounds to believe will give evidence with respect to an offence under this Act or the regulations may issue a warrant authorizing an aquaculture inspector named in the warrant to seize all aquatic plants or animals and aquaculture gear that are considered necessary, subject to conditions that may be specified in the warrant.

(3) An aquaculture inspector acting under a warrant issued under subsection (2) may

(a) take into custody or release from seized aquaculture gear live aquatic plants or animals; and

(b) order a person whom he or she reasonably believes to have committed the offence, to remove and relinquish to the custody of the aquaculture inspector aquaculture gear and where applicable, aquatic plants or animals,

provided that the Provincial Court judge who issued the warrant under subsection (2) has ordered those actions as conditions of that warrant.

(4) Aquaculture gear seized or removed under subsection (1) or paragraph (3)(b) may be detained for a period of 2 months following the day of seizure or removal, unless during that period, proceedings under this Act in respect of that aquaculture gear are undertaken, in which case the aquaculture gear may be further detained until the proceedings are finally concluded.

(5) Where aquatic plants or animals are seized or removed under this section, the aquaculture inspector or other person having the custody of the aquatic plants or animals may sell them and shall pay the proceeds of the sale into the Consolidated Revenue Fund.

(6) Where aquatic plants or animals or aquaculture gear are seized or removed under this section, a person having an interest in them may apply to a judge of the Trial Division for their return.

(7) A judge may order the return of the aquatic plants or animals and aquaculture gear where

(a) he or she is satisfied that the seized or removed aquaculture gear is licensed or was located at a licensed site;

(b) he or she is satisfied that the retention of the aquatic plants or animals and aquaculture gear is not necessary as evidence of the commission of an offence;

(d) the applicant posts a bond or other form of security in an amount satisfactory to the judge.

(8) Where proceedings are not taken following a seizure or removal under this section or where they are taken and the person charged is acquitted of the charge made against him or her,

(a) the aquaculture inspector or other person having the custody of the aquatic plants or animals or aquaculture gear seized or removed under subsection (1) or paragraph (3)(b) shall return them to the person from whom he or she seized or received them; and

(b) where the aquatic plants or animals are sold under subsection (5), the minister shall pay the proceeds of the sale to the person from whom the aquatic plants or animals were seized or received under subsection (1) or paragraph (3)(b).

(9) Where the ownership of aquaculture gear seized under subsection (1) cannot, at the time of and within 2 months of that seizure, be ascertained by the aquaculture inspector who has made that seizure, that aquaculture gear is forfeited to the Crown and may be disposed of as prescribed by regulation.

(10) For the purpose of preserving the identity of aquatic plants or animals and aquaculture gear seized or removed under subsection (1) or paragraph (3)(b), an aquaculture inspector may place upon the aquatic plants or animals and aquaculture gear a numbered tag in the form that is prescribed by the minister.

(11) A person shall not remove or alter a tag placed upon an aquatic plant or animal and aquaculture gear under subsection (10) and shall not remove aquatic plants or animals and aquaculture gear detained under this section.

(12) Where a person is convicted of an offence under this Act or the regulations, the judge before whom he or she is convicted may, in addition to another penalty imposed under this Act,

(a) order that the aquatic plants or animals and aquaculture gear in relation to which the offence was committed

(i) be seized or removed in accordance with subsection (1) or paragraph (3)(b),

(ii) be sold in accordance with subsection (5), and the proceeds of the sale forfeited to the Crown,

(iii) be forfeited to the Crown, or

(iv) disposed of as the minister directs; and

(b) where a bond or other security has been posted under paragraph (7)(d), call upon the bond or other security and order the person posting it to pay immediately the amount of the bond or other security to the Consolidated Revenue Fund as a debt due the Crown.

1994 c39 s6; 1997 c13 s2; 2004 c36 s2

Offence

14. A person who

(a) contravenes a provision of this Act or regulations made under this Act;

(b) contravenes a term or condition attached to an aquaculture licence issued under this Act or regulations made under this Act;

(d) fails to comply with a directive issued under this Act or regulations made under this Act; and

(e) knowingly provides false or misleading information under a requirement under this Act or the regulations to provide information or knowingly does not provide information as required under this Act or the regulations,

is guilty of an offence.

2005 c23 s8

Penalty

15. (1) A person found guilty of an offence under this Act is liable on summary conviction

(a) for a first offence, to a fine not exceeding $5,000 or, in default of payment, to imprisonment for a term of not more than 6 months or to both the fine and imprisonment; and

(b) for a subsequent offence, to a fine of not less than $5,000 and not more than $10,000 or, in default of payment, to imprisonment for a term of not more than 12 months or to both the fine and imprisonment.

(2) A continuance for a day or a part of a day of a contravention of this Act or a regulation made under this Act constitutes a separate offence.

(3) For the purposes of paragraph (1)(b), a person shall be considered to have committed a subsequent offence where that person is convicted of an offence under this Act within 2 years of being convicted of a first offence under this Act.

2005 c23 s8