Bias @ ARB
We have been asked if FOAH will appeal the Aquaculture Review Board’s (ARB’s) decision granting Town Point Consulting Inc (TPCI) leases near the mouth of Antigonish Harbour. Many of us feel the ARB has been selected for its pro-aquaculture predisposition and that the ARB’s bias in that regard was evident throughout the hearings and manifestly clear in the TPCI decision. An administrative body recognized for its neutrality and independence - namely the NS Utility and Review Board (UARB) – could conduct aquaculture hearings, but the provincial legislation instead has chosen not to use this highly respected hearing body in favour of one with no institutional track record of neutrality.
Unfortunately, the only venue for an appeal is the NS Supreme Court and only on matters of law. In other words, judges hearing the case could not evaluate the facts presented by the two sides. An appeal court could not consider whether the ARB ignored evidence that the proposed oyster farm would harm the eco system including the endangered piping plovers, critical eelgrass, fish and fish habitat or endanger commercial fishermen forced to navigate around 23,000 oyster cages and 52km of cables and ropes.
Perhaps worst of all, even if we were to win an appeal based on bias and various procedural rulings made by the Board, such a victory would mean we would have to go through the entire ARB process again, quite possibly before the exact same ARB members who made such a mess of the first hearings. Legal costs of an appeal and repeat of the ARB hearings would likely run into the hundreds of thousands of dollars. Given the ARB’s orientation, and determination to ignore inconvenient facts, the outcome is unlikely to change.
Nova Scotia’s legislative, regulatory and administrative regime for managing aquaculture is designed to approve new applications and renew existing ones … apparently regardless of the facts. The pretense of an independent, neutral ARB has been dispelled by the collaboration between NS Dept of Fisheries and Aquaculture (NSDFA) and the ARB. The NSDFA took 3 years to review the applications yet failed to verify the most basic and critical data about the proposed lease sites provided by the applicant (key elements of which were proved to be grossly inaccurate or simply wrong). After three years NSDFA turned the file over to the ARB in December 2022. Slightly over a year later, the ARB issued a ruling which appears to accept virtually all the evidence and argument in support of the application while rejecting all evidence and argument opposed to the application.
In one of its first cases ARB’s chair declared the board would not evaluate NSDFA actions or policies. The ARB appears to accept anything contained in an application presented to it by the NSDFA as factual and accurate. Evidence submitted by opponents must meet exceedingly high, yet unspecified, standards akin to peer reviewed scientific journals, and even then, is ignored by the ARB if contradictory to assertions by NSFDA or an applicant.
The proponent told neighbors in 2019 that NSDFA guaranteed approval of the applications and on this point, he ended up being completely accurate. A few of the many examples of basis for appeal are described below. However, in the face of obvious and pervasive bias and a lopsided system FOAH will not appeal to the NS Supreme Court.
Many thanks to everyone who worked so hard to protect Antigonish Harbour! We encourage you to make local, provincial and federal leaders aware of your disappointment.
FOAH Steering Committee
Examples of Bias in ARB decision on TPCI leases
1. The board ignored the fact that NSDFA’s witness acknowledged never verifying critical data in the application about depth and current speed in the lease areas prior to providing the application to experts in other provincial and federal departments for their reviews. Evidence submitted by the opponents proved this data wrong and/or grossly inaccurate. In short, the entire review process relied on flawed data provided by the applicant.
2. The board ignored evidence revealed in cross examination proving reports TPCI commissioned on piping plovers contained multiple material errors or misleading propositions and that both NS’s Office of L’nu Affairs and Canada Wildlife Service objected to lease 1444 as a threat to the endangered piping plover.
3. FOAH’s expert witness, retired DFO marine biologist Dr. Peter Cranford, made three trips to take sediment samples and thousands of current readings in the lease sites over the course of 2 years. He wrote a comprehensive report detailing the findings and conclusions that TPCI’s plan was a threat to fish and fish habitat. His report identified in detail his methodology, and data in the best scientific traditions, and his analysis was carried out to standards consistent with regulatory aquaculture site monitoring.
4. TPCI’s expert witness, former Cooke Aquaculture chair, Dr. Jon Grant, took no samples, readings, or even visited Antigonish before testifying at the hearing. He relied on a “desk-top” model, which did not address the main scientific concerns, but focused only on the likely renewal of oyster feed from tidal exchange. Somehow the board concluded that Dr. Cranford’s work was unscientific because it did not meet the standard of a peer reviewed scientific paper (which it did not aspire to), whereas the lack of site work by Dr. Grant was perceived as giving him greater credibility.
5. The ARB and NSDFA accepted as gospel, data provided by the applicant without even rudimentary support or documentation such as date, time, location, tide conditions of readings. On the other hand, opponents were admonished for not meeting the highest standards required of peer reviewed academic journals. This is the epitome of a “double standard”.
6. The ARB routinely rejects intervenor applications from groups or individuals not immediately adjacent to proposed aquaculture sites. The board’s stated rationale is that its role is to decide on the impact of specific lease applications not on the virtues or dangers of aquaculture in general. However, in the TPCI case the board rejected local site-specific scientific data in favor of macro data from a “table top” model prepared by TPCI’s expert…who never visited Antigonish Harbour. Yet another double standard.
7. The board chair refused to decide if panels of witnesses would be permitted to present evidence while repeatedly warning that duplicative testimony would not be tolerated and that intervenors would not be allowed to both serve as witnesses and make oral or written statements. This forced many intervenors opposed to the applications to surrender intervenor status to ensure at least a chance to make an oral statement or submit a written statement. The Board’s decision document simply says “many opposing intervenors withdrew” … without mentioning the board’s role in this outcome.
8. In addition to pervasive evidence of bias in favor of the applicant and against those in opposition, the Board’s decision document is littered with errors reflective of intentional or unintentional disinterest in the facts. Listed below are just a few of the many many examples:
a. The Board relied on TPCI’s consultant, Mr. Chris Kennedy, who provided a report which was proven to omit important data on recent plover observations and both that report and the Board’s decision ignored the actual “critical habitat” for plover nesting recognized by both federal and provincial regulators of endangered species.
b. NSDFA and the ARB ultimately dismiss the explicit objection of the Canada Wildlife Service. The ARB refers to Mr. Kennedy’s report showing other oyster farms close to public beaches in the Maritimes. However, the ARB forgot or ignored measurement errors revealed in Kennedy’s cross examination as well as the fact that these other sites were licensed to use the “bottom culture” method of aquaculture which does not require servicing throughout the seasons while TPCI’s plan calls for continuous presence of a barge powered by an outboard motor, above deck machinery and multiple people on board servicing and de-fouling cages.
c. The board incorrectly claims Mr. Beaton’s testimony was inconsistent with Mr. Brophy’s testimony regarding lease #1444 blocking transit to lobster fishing. It was completely consistent.
d. The board references a letter of support for the application from a member of Paqtnkek First Nation but fails to even acknowledge that the Office of L’nu Affairs objected on the basis of endangering Piping Plovers and submerged archeological resources.
e. The board ignored acknowledgement by NSDFA officials during the hearings that it had not provided all relevant information to the Office of L’nu Affairs and or conducted proper consultation.
f. The Board refences current meter readings taken by NSDFA----but ignores that these readings were taken in the center of the main channel which is far from the lease sites and approximately 5 times deeper than the lease sites and acknowledged by all to have much faster current speeds.
g. Although an apparent minor error, the Board’s repeated reference to FOAH witness Mike MacDonald as Mark MacDonald and falsely referring to witness Lucy MacDonald as his daughter were reflective of sloppiness and lack of respect for those in opposition while going out of its way to praise the applicant.