The aquaculture industry has long been recognized as requiring shared governance of federal and provincial governments. Aquaculture cuts across several powers constitutionally allocated to the respective governments while ironically aquaculture itself is not
expressly constitutionally assigned. A ppellate caselaw in British Columbia suggests aquaculture is a federal responsibility , although the two levels of government appear to have adopted a pragmatic approach to enable the industry to develop. In a spirit of ‘cooperative federalism’ f ederal-provincial memoranda of agreement to coordinate responsibilities have been adopted and some provinces – namely N ew Brunswick, Newfoundland and Labrador, Nova Scotia and Quebec – are regulating the industry. Differently, the federal government regulates aquaculture in British Columbia but the province is responsible for leasing, whereas in Prince Edward Island the governance of the industry is through federal leasing and industry co-management.
This paper revisits the regulation of aquaculture in Canada and focuses on occupational health and safety jurisdiction. The labour process in the aquaculture industry involves both land-based hatchery work, fish feeding and harvesting work at sea. The work at sea aspects expose workers to occupational hazards concerning not only the aquaculture activity itself but also navigation al and vessel operations .
The terrestrial-maritime dimension of the labour process raises
questions for standard-setting and risk distribution in occupational health and safety regulation. I n Jail Island Aquaculture Ltd. v. R. (2000), the ship owner challenged the provincial jurisdiction over a workplace death accident occurring on a fish harvesting barge at sea, but
the New Brunswick Court of Queen’s Bench left the jurisdictional question over aquaculture OHS unanswered. More recently the appellate courts of British Columbia and Nova Scotia considered OHS matters with respect to fishing vessels and had no difficulty in asserting provincial jurisdiction over the matter. The Supreme Court of Canada further considered workers compensation in a Newfoundland case and explored a possible way forward in clarifying federal and provincial jurisdiction over the claims of dependents. However, the two decisions raised concerns over the desirability of uniformity when an industry straddles provincial economies.
The paper analyses the jurisdictional questions and attempts to clarify the contemporary state of understanding concerning aquaculture OHS jurisdiction in Canada.