Shelburne homeowners Herschel and Marian Specter are disappointed, but not dismayed at the ruling on Tuesday by Supreme Court Justice Michael Wood to deny their appeal to have Fisheries and Aquaculture Minister Sterling Belliveau suspend the applications by Kelly Cove Salmon (Cooke Aquaculture, Ltd.) for additional open net-pen aquaculture cages in Shelburne Harbour.
The Specters filed a lawsuit in Nova Scotia Supreme Court in June of 2011, challenging Belliveau on the appropriateness of expanding the open net-pen aquaculture cages near their home in Sandy Point. “The Court’s decision is not wholly unexpected,” said Marian Specter, “but the court case itself has broken the barrier of the lack of transparency between the Department and the public regarding aquaculture management in Nova Scotia.” Lawsuits of this type are exceedingly difficult to win, say the Specters, because the provincial Fisheries and Coastal Resources Act gives the Minister such broad discretion.
The Specters say that they made several formal requests for data surrounding the Minister’s determinations regarding salmon farms in Nova Scotia, to no avail. They say that the information came to them only through the Minister’s Record submitted to the courts as part of his defense of the suit brought by the Specters.
PATHWAY TO UNDERSTANDING
“The amount of information provided was both voluminous and disturbing,” added Herschel Specter. “This situation has opened a pathway to understanding the workings of the Department that had previously been hidden from view.” Specter said that, among other things, the Minister’s Record revealed recent sulphide contamination data from salmon sites in the harbour which were alarming, and which the government did not disclose, despite repeated requests by the Specters.
"The initial ruling in this case [by Justice LeBlanc] sets a very important precedent," Rob Johnson, sustainable seafood and aquaculture coordinator with the Ecology Action Centre, which also protested the new fish cages, told SCT. "it establishes and confirms that individual citizens do have standing on cases. This means that Nova Scotians can continue to have a say in development projects that affect our environment."
Despite all the issues raised in how the minister made his decision, many of them very legitimate failures in process regarding aquaculture permitting and transparency of information, the extent of ministerial discretion is overdiding, Johnson asserts. "This means that even when there is a poor process individual ministerial discretion can undermine good regulatory processes."
FOX IN THE HENHOUSE
The Minister’s Record also provided information proving that Kelly Cove had admitted to moving salmon cages outside of the approved lease area – with full knowledge of the Department. When very high sulphide readings were found the Department required an external audit, which should have been conducted by an independent third party. Instead of obtaining this independent review, the Department allowed the same firm who did the original sulphide readings to conduct the audit. “This is tantamount,” adds Specter, “to letting the fox in to guard the henhouse.”
The Minister’s Record also shows, says Specter, that the cause of the abnormally high readings was never discovered by the audit or by the Department, but the Minister approved these additional sites nonetheless. “Based on the Department’s own Record, the mitigation schemes which are supposed to prevent the contamination in the new sites do not work”, says Marian Specter.
“Of course, we would have preferred a different outcome,” added Marian Specter, “but the struggle to add some common sense and caution into the rush for development of open net-pen aquaculture is far from over.”
"The fact that Nova Scotian residents have to take these issues to court," Johnson added, "suggests that there is something missing in the governments decision making, public participation."
An additional lawsuit has been filed regarding Minister Belliveau’s approval of salmon cages in the St. Mary’s Bay region and there is opposition to expanding salmon farms in Port Mouton Bay and more recently on the Eastern Shore.
Calls were made to Cooke Aquaculture and the Municipality of Sheburne but were not returned by press time