Prince Edward Island Aquaculture Leasing Policy

Transcription

1 Prince Edward Island Aquaculture Leasing Policy PEI Aquaculture Leasing Management Board A partnership of Fisheries and Oceans Canada, the Province of Prince Edward Island & Industry Partners June

2 Table of Contents 1. Introduction 2. Background 3. Rights and Obligations of a Lessee 4. Classification of Leases/Spat Licenses 5. PEI Aquaculture Zoning System 6. Fee Structure 7. Utilization 8. Lease Boundaries 9. Lease Transactions 10. Cancellation of a Lease 11. Leases in Contaminated Water 12. Lease Marking Procedures 13. Appeals Process and Procedures 14. Policy Amendments 15. Appendices 1. All persons making use of this document are reminded that it has no official sanction and its content may change without prior notice. Fisheries and Oceans Canada should be consulted for all purposes of interpreting and applying this policy. 2. In this document, words importing the masculine gender shall include the feminine gender. 3. Notwithstanding the provisions specified in the PEI Aquaculture Leasing Policy document, the Minister of Fisheries and Oceans Canada retains complete discretion to approve an exception to these provisions. 2

3 1. Introduction Mission Statement: The PEI Aquaculture Leasing Management Board is a partnership of government and industry working together to manage aquaculture leasing on Prince Edward Island. The Board is dedicated to the responsible development of the aquaculture industry on Prince Edward Island. Overview: The PEI Aquaculture Division, Fisheries & Oceans Canada leases some 1,100 sites over some 18,400 acres. The foundation of the PEI Aquaculture Industry is this leasing system which provides the stability and security essential for growth by: Regulating access; Managing property records; Administering the PEI Aquaculture Leasing Zoning System; Safeguarding access and navigation rights; Ensuring compliance with the lease contract. The purpose of this policy is to address the current needs of the aquaculture industry on Prince Edward Island with respect to allocation of new leases and the management of existing leases. It attempts to provide industry representatives and other interested stakeholders with a clear, consistent statement of PEI Aquaculture Division policies respecting the issuance and management of aquaculture leases in the waterways of Prince Edward Island. It builds on the existing Shellfish Leasing Policy, last updated in 1983, and recognizes the advisory role of the PEI Aquaculture Leasing Management Board, which is comprised of Federal and Provincial representatives as well as industry members. This policy reflects the industry and government s confidence in the aquaculture industry while acknowledging the presence of other stakeholders and will be revised as often as necessary to reflect the changing needs of the industry. The following principles are a guideline for aquaculture development on Prince Edward Island: Fisheries and Oceans Canada, Province of Prince Edward Island and the industry are committed to the development of the Prince Edward Island aquaculture industry, and consider it a priority for economic and sustainable development Fisheries and Oceans Canada promotes orderly development of aquaculture on Prince Edward Island, in co-existence with the traditional fisheries and other stakeholders, and is responsible to ensure proper utilization of leased aquaculture sites. Aquaculture development must be consistent with government responsibilities related to public health and safety, marine navigation and the environment. Aquaculture development objectives of the Fisheries and Oceans Canada and the Province of Prince Edward Island will be harmonized as recognized in the 1987 agreement for Commercial Aquaculture Development. 3

4 2. Background Administration of Leasing: The active husbandry of fish on Prince Edward Island has been practiced for over 100 years. In 1928, an agreement was signed between the Dominion of Canada and Prince Edward Island where it was agreed that the federal government would be responsible for aquaculture leasing on Prince Edward Island. Government of Canada and the Province of Prince Edward Island reaffirmed this agreement in a 1987 agreement for Commercial Aquaculture Development. Fisheries and Oceans Canada maintains jurisdiction over aquaculture leasing, with administration conducted on behalf of the Minister of Fisheries and Oceans by the PEI Aquaculture Division in Charlottetown, Prince Edward Island. Lease administration is a transparent operation, with the PEI Aquaculture Division being advised by the PEI Aquaculture Leasing Management Board. The PEI Aquaculture Leasing Management Board is mandated to provide management advice and direction to the PEI Aquaculture Leasing Program, to develop business and financial plans with PEI Aquaculture Division and to set direction and establish policy priorities. (Terms of Reference for the PEI Aquaculture Leasing Management Board - Appendix 1). Acting on the advice of the PEI Aquaculture Leasing Management Board, the PEI Aquaculture Division specifies under what conditions leases may be issued, how and why terms of contracts may be extended and under what conditions leases may be cancelled. The PEI Aquaculture Leasing Referral Committee reviews new applications for aquaculture leases and/or aquaculture lease transactions and makes recommendations to the PEI Aquaculture Division (Terms of Reference for the PEI Aquaculture Leasing Referral Committee Appendix 2). An Appeals Panel has also been formed and is responsible for hearing appeals concerning all decisions on an individual s lease or application (Terms of Reference for PEI Aquaculture Leasing Appeals Panel Appendix 3). These administration procedures attempt to provide lessees, potential lessees and other stakeholders with clear guidelines for all aspects of lease administration. 4

5 3. Rights and Obligations of a Lessee The rights and obligations of a Lessee are identified in the lease contract, which is granted under the authority of the 1928 agreement between the Dominion of Canada and the Province of Prince Edward Island and the Fisheries Act, RSC c. F-14, Section 7. The lease contract provides for ownership of the molluscan species within the lease boundaries and allows for the use of the sea-bed or water column to cultivate the approved species. The lease contract issued on Prince Edward Island ( 1928 agreement) gives a lessee the exclusive rights to the shellfish on his/her lease site and the shellfish on the said lease. Under the criminal code of Canada, a Lessee has the right to protection of his/her lease site and the shellfish on the said lease. Lessees with an approval under the Navigable Waters Protection Act have the right to place structures in the water above their lease. A lessee also has the right to transfer, bequeath, sublet or cancel his/her lease. Obligations of a lessee include (but are not limited to): Respect and comply with all applicable legislation, e.g. Fisheries Act, Navigable Waters Protection Act, and the Canadian Environmental Assessment Act; Mark lease site as outlined in the lease contract and/or Navigable Waters Protection permit; Operate the lease as per the approved site development plan; Pay all rentals and fees associated with the lease. For more detail on the rights and obligations of a leaseholder, please reference the Fisheries Act and Regulations, the Management of Contaminated Fisheries Regulations and the 1928 agreement between the Dominion of Canada and the Province of Prince Edward Island. 5

6 4. Classification of Leases/Licenses A lease contract sets out the rights and obligations of each of the parties. The lessor or landlord agrees to provide land for a certain price for a certain length of time, provided that the leaseholder does certain things in return - for example, paying rent and establishing an aquaculture operation. Aquaculture leases are issued for a term of up to 25 years with options for renewal. All Aquaculture leases are described as follows: Bottom Culture Lease: A bottom culture lease is for the use of the bottom to cultivate the molluscan species described in the lease contract. Water Column Lease : A water column lease is a bottom lease with permission to use the water column to grow molluscan species as outlined in the lease contract. Those lessees who presently have a bottom culture lease but wish to conduct off-bottom culture must make an application to the PEI Aquaculture Division to place structures in the water above the lease. The application, including the site development plan must be reviewed by the PEI Aquaculture Leasing Referral Committee and an exemption or approval with conditions must be granted under the Navigable Waters Protection Act. Spat Collection Licenses: The collection of spat is considered as a fishery under the Fisheries Act and the Molluscan Spat Collection Operational Policy and requires the issuance of a spat collection license for certain on-lease activities and for all off-lease operations. The PEI Aquaculture Leasing Management Board provides policy and program advice to Fisheries and Oceans Canada relative to spat collection on Prince Edward Island. 6

7 5. PEI Aquaculture Zoning System Purpose: The P.E.I. Aquaculture Zoning System has been the back bone of the Aquaculture Industry in P.E.I. since its inception in the late 1980 s. The aquaculture industry, particularly for shellfish, was growing rapidly and the pressure on inland waters was significant. In response, and intended to address a number of issues and potential conflicts, an aquaculture zoning system was developed and adopted for use in the bays and rivers in P.E.I. Background/Overview: Originally named the P.E.I. River Designation System, the Aquaculture Zoning System grew out of a concept developed by staff in Fisheries and Oceans Canada and reviewed by means of a steering committee formed of agencies that had jurisdiction or an interest in aquaculture. This steering committee was made up of representatives of Fisheries and Oceans Canada, Coast Guard, Public Works Canada, Environment Canada, Parks Canada, Prince Edward Island Department of Fisheries, Prince Edward Island Department of Environment and Tourism Prince Edward Island. The concept for the Aquaculture Zoning System is based largely on elements used in a number of land use zoning systems and applied, in this case, to water use. The goal was to streamline the application process for aquaculture and to facilitate expansion of the industry in P.E.I. while avoiding conflict with other users. Issues that were addressed during the various review sessions included: recreational use; commercial operations on the water (i.e. shipping, recreational enterprises); wildlife sanctuaries; provincial and Federal parks; commercial fisheries and other related marine activities. Legal issues were also considered and they included: landowner (riparian) rights; the right to navigation; environment legislation and aboriginal rights. Maps, with designated zones, were developed illustrating where and how aquaculture operations could be located. Each Department was asked to consult with their respective client groups in order to review the proposed zoning designation. The result of this review process was the PEI Aquaculture Zoning System which was officially adopted in 1987 by the Department of Fisheries and Oceans. It has been utilized since then to guide decision making in the aquaculture lease application process particularly with regard to shellfish (mussels and oysters) culture. In 2008, a review of the PEI Aquaculture Zoning System was undertaken to acknowledge off-bottom oyster technology that was not envisioned during the development of the zoning system. The situation in April 2008 requiring attention included leases that were not compliant with the zoning system; new applications on file for off-bottom oyster culture, most of which are for areas zoned C for off bottom culture. A number of options were considered: do nothing; grandfather current leases; consider only applications in open zones; or review/revise the zoning system. All areas zoned AC, BC and CC where there was currently off bottom oyster leases, applications for conversion to off bottom leases or a potential for conversion applications were reviewed to determine if there are obvious impediments to off bottom oyster culture. Obvious impediments include for example; interference with navigation, recreational areas, public fishing grounds, provincial parks. This review resulted in the potential to rezone a number of areas where no obvious impediments were identified. 7

8 The Leasing Management Board made the decision at its April 18, 2008 meeting to revise zones where there are no obvious impediments to off bottom oyster culture and that any consideration of applications for surface culture would be for oysters only. Description/Definitions: The P.E.I. Aquaculture Zoning System consists of a system of letters paired to reflect the method of culture and availability (not suitability) of the water area represented. The first letter of the pair refers to bottom culture while the second letter refers to off-bottom/water column culture. A denotes an area that is considered acceptable for aquaculture activities. No obvious impediments have been identified in these areas. B denotes an area that is conditional, that is, requiring further review. Some potential conflicts and/or obstacles may have been identified in these areas. These could include recreational users, a public fishery, or possible interference with navigation. C denotes an area closed to shellfish aquaculture or an automatic denial. This would be based on the determination of obstacles such as a government wharves, dredge spoil sites, provincial parks, public fishing grounds, federal lands, interference with navigation or heavy recreational usage. Bo is a designation used only in relation to off bottom culture for oysters and applicable only to bottom leases applied for or approved by July 12, It denotes an area that is closed to mussel culture but conditional for off bottom oyster culture. Areas are designated as follows: AA - acceptable for both bottom and water column culture, AB acceptable for bottom culture and conditional for off bottom culture, AC - acceptable for bottom culture but not for water column, BB conditional for both bottom and off bottom culture, BC conditional for bottom culture and not acceptable for water column culture, CC - not acceptable for either bottom or water column culture, ABo acceptable for bottom culture and conditional for off bottom oyster culture CBo - not acceptable for bottom culture and conditional for off bottom oyster culture. 8

9 REVIEW OF PEI AQUACULTURE ZONING SYSTEM Purpose: The PEI Aquaculture Zoning System is a key element in the decision making process for shellfish aquaculture lease applications. To ensure it remains reflective of the current environment in the water systems across PEI, a regularly scheduled review of areas will be conducted. This will ensure no area would go more than five years without being reviewed. Procedure: 1. The PEI Aquaculture Leasing Referral Committee will carry out the review of the zoning system and provide recommendations to the PEI Aquaculture Leasing Management Board whether designations should remain or change (A, B, C, Bo designations). 2. PEI map has been delineated into twenty areas; a review of four areas will be conducted each year. 3. A schedule of areas which will be reviewed is located in Appendix 8 4. Reviews will take place in November of each year. 5. The committee will consider various criteria including but not limited to: a. History of Area (i.e. leased/not leased, density of lease, i.e. over subscription) b. Commercial fishing activities / Public fishing grounds c. Recreational use d. Upland use (i.e. cottage development) e. Provincial or Federal Parks f. Navigation g. Growing Area Classification h. Bay Management Plans i. Potential for Aquaculture Expansion 6. The PEI Aquaculture Division will maintain a database of information on each area and will provide a summary of this information to the Leasing Referral Committee for consideration in the review. This information will include: Logging comments received on any given area (aquaculture, navigation, unsightliness, noise, etc) Recording number of lease acquisitions, transfers and cancellations for any given area Providing statistics on percent change in aquaculture lease type and/or species for any given area (i.e. change from bottom to off-bottom, etc) 7. The committee will have the latitude to engage individuals with expertise from other government departments or disciplines for advice. Representation from the PEI Aquaculture Alliance is key to the successful integration of aquaculture zoning 9

10 6. Fee Structure Purpose: There are a number of leasing fees associated with acquiring permission to operate and maintain an aquaculture lease. The PEI Aquaculture Leasing Management Board, in consultation with the industry, will review the business plan of the PEI Aquaculture Division annually and advise Fisheries and Oceans Canada on fees. The PEI Aquaculture Leasing Program desires to provide the most cost-effective services possible. The fiscal year for the Aquaculture Leasing Program is April1 to March 31 and all fees are based on that period. The fees for the current fiscal year are attached as Appendix 4. Policy: Lease Fees The fee for a lease (bottom or water column) lease will be reviewed periodically by the PEI Aquaculture Leasing Management Board and will be based on the financial requirements as identified in the PEI Aquaculture Leasing Program business plan. There will be a transition period for leases with old contracts (where the fee is fixed for a specified period) to be billed the new fee. The new lease fee will take effect when there is a transaction on the old contract or the contract itself expires and is renewed. The lease fee applies to both the developmental and commercial phase of a lease contract. Lease Transactions and/or Services Fees will be applied to lease transaction and/or services as determined with the PEI Aquaculture Leasing Management Board. The following describes the services for which a fee applies: Application Fee - Fee for the submission of an application for an aquaculture lease Lease Transfer - Fee for submission of a request to transfer an aquaculture lease Mortgage Assignment - Fee for submission of a request to mortgage an aquaculture lease to a lending institution Sublease - Fee for submission of a request to sublet an aquaculture lease. Wills/Bequeaths - Fee for submission of a request to resolve aquaculture lease(s) in an estate Survey Fee - Fee to re-establish the boundaries of an aquaculture lease Appeal Fee - Fee to appeal all decisions on an individual s lease or application by the PEI Aquaculture Division or the PEI Area Director, Fisheries and Oceans Canada Formation of a Company - Fee for submission of a request to register aquaculture leases in a company name Addition/Deletion of a Name on a Lease - Fee for submission of a request to add or delete a name to an aquaculture lease contract Add or Delete a Species - Fee for submission of a request to add or delete a name to an aquaculture lease contract Re-configuration of a Lease - Fee for submission of a request to reconfigure an aquaculture lease The PEI Aquaculture Division, in consultation with the PEI Aquaculture Leasing Management Board may determine other fees from time to time 10

11 Procedure for Lease Fees: 1. Invoice will normally be sent in June of each year for payment of the annual lease fees. Payments are due and payable within 30 days of receipts of invoice. 2. A second notice of payment will be sent after 30 days has expired to all lessees with outstanding lease fees. 3. If after second notice of payment has been forwarded and the lessee has still not paid the lease fee(s), a registered letter shall be sent to the lessee informing that the lease is cancelled. Notification of the lease cancellation will also be sent to any person or institution holding a lien on the leased area. 4. Within a period of 30 days of receipt of letter of cancellation, the lessee may have the lease(s) reinstated, however all outstanding fees plus a reinstatement fee of 10% of the lease rental or $100 (whichever is greater) must be paid. 5. If a lease is cancelled for non-payment of fees and extenuating circumstances exist, a lessee may request an exception to the policy by submitting a request in writing to the PEI Aquaculture Division. The PEI Area Director, Fisheries and Oceans Canada will review the request and render a decision in writing. 6. Once the lease has been cancelled, the lessee may appeal the decision. (For further information see the Appeal Process and Procedures section). 7. All fees are to be made payable to the Receiver General for Canada. Payments may be made in the form of cash, cheque/money order, credit card or interact direct payment. 8. Non-sufficient funds will be subject to a penalty of $ All fees are subject to change based on the business plan of the PEI Aquaculture Leasing Program. Procedures for Lease Transactions and/or Services: Fees for lease transactions and or services require payment at time service is rendered. 11

12 7. Utilization Purpose: The PEI Aquaculture Division is working towards a strong responsible aquaculture sector that continues to grow and provide sustainable earnings. Inactive lease sites or sites that are not utilized to their full potential do not significantly contribute to the growth of the shellfish industry. In some cases, these inactive leases are preventing the growth of other, more economically viable operations. The PEI Aquaculture Division has the desire to see all aquaculture leases in production consistent with a site development plan and with the longterm interests of the industry. Policy: 1. The lessee will, under penalty of forfeiture, be obligated (in accordance with their lease site development plan) to commence actively working a new lease within a 12-month period from the date of issue of the said lease. A lease will go through certain phases during the tenure of the lease contract. Developmental Phase: The initial 5-year term of a lease will be considered the developmental phase. During this 5-year phase, the potential aquaculturalist will assess the biological and environmental aspects for a proposed site prior to entering full scale commercial operations. It also allows the PEI Aquaculture Division time to assess the performance of the lessee. Commercial Phase: If the aquaculturist is successful in developing the site in accordance with the site development plan and meets the obligations as outlined in the lease contract, the lease will be considered to be in the commercial phase. All leases will be periodically reviewed to ensure terms and conditions of the lease contract are met and that the lease is being utilized as per the site development plan. The lease may be subject to a physical inspection to determine that terms and conditions of the lease contract and site development plan are satisfied. 2. A lease shall not operate in a manner that causes litter and debris to be found on the shoreline adjacent to sites. 3. The Lessee is required to submit an Annual Lease Report to the PEI Aquaculture Division, indicating the extent of operations conducted. If the lessee fails to submit the Annual Lease Report, the PEI Aquaculture Division may cancel the lease. 4. The lessee should be prepared to provide documentation to verify activity And support the Annual Lease Report (e.g. sales invoices or other proof deemed acceptable to Fisheries and Oceans Canada as outlined in the lease contract). The onus will rest entirely with the lessee to produce evidence that production and planting requirements have been reasonably met. The Annual Lease Reports may, from time to time, be subject to a random audit. 12

13 5. Fisheries and Oceans Canada has the authority to enter upon any lease at any time to inspect production. 6. If after checking the Annual Lease Report and other requested documentation and/or after the physical examination of the area, the PEI Aquaculture Division determines that the lessee failed to develop the lease as per the site development plan or in the absence of a site development plan and proof of a reasonable level of production, the lease may be cancelled. 7. If a lease is to be cancelled for non-utilization of the site and extenuating circumstances exist, a lessee may request an exemption under the PEI Aquaculture Leasing Policy by submitting a request with proof of the resources invested, to the PEI Aquaculture Division. The PEI Area Director, Fisheries and Oceans Canada must review the request and render a decision in writing. 8. Once the lease is cancelled, the Lessee may appeal the decision. (For further Information please refer to the Appeal Process and Procedure section). 9. The PEI Aquaculture Division may consult with the PEI Aquaculture Leasing Referral Committee or other agencies to determine if the minimum criteria have been met. The onus rests with the lessee to supply the information detailing the rate of utilization. Procedure: 1. An Annual Lease Report form will be sent in January of each year. The lessee is required to return the Annual Lease Report, indicating the extent of operations conducted on the lease during the previous calendar year. 2. The utilization rate will be assessed by checking the Annual Lease Report and/or by physical examination of the site. The lessee may be requested to be present during a site inspection. If requested, the lessee should be prepared to provide the necessary documentation identifying the development of this site, such as records of seed purchase, relaying of shellfish that were removed from the lease during the preinspection period. 3. If the lessee fails to submit the Annual Lease Report and/or does not supply the necessary documentation, a registered letter will be sent to notify the lessee that unless the necessary information is received, the lease is cancelled. 4. A lessee may appeal the cancellation of the lease. (For further information see the Appeal Process and Procedures section). 13

14 8. Lease Boundaries Purpose: To ensure that leaseholders remain within the boundaries identified in the lease contract. This allows all leases to have properly marked and easily identifiable boundaries. Policy: 1. The lessee, under penalty of cancellation, is obligated to abide by the lease boundaries identified in the lease contract. Movement of corner markers and lease boundaries is considered to be a violation of the lease contract and the lease may be subject to cancellation due to breach of contract. A lessee outside the assigned lease boundary may also be subject to: Removal of all equipment in navigation channels under the Navigable Waters Protection Act, a cost of removal charge to the grower and addition, fines of up to $5000; Enforcement under the Private Buoy Regulations of the Canada Shipping Act and the Fisheries Act Regulations; Leasing administrative sanctions including denial of transactions. 2. Corner markers outlining the boundaries of the lease must be permanently fixed to the lease bottom in accordance with the PEI Bottom Lease Marking Policy (Appendix 5). A lessee must also comply with the requirements of the Navigable Waters Protection Act. 3. PEI Aquaculture Division staff will investigate complaints of a lessee operating outside their assigned lease boundaries. 4. A lessee with gear, corner markers and/or product outside the lease boundaries will be notified first by telephone or in person, if the situation remains unchanged then a registered letter of the course of action to comply with the boundaries of the lease and a specified time frame in which to do so. Failure to comply with the course of action will result in the PEI Aquaculture Division initiating said action and the cost billed to the lessee. 5. If a lessee disagrees that he/she is outside their lease boundaries, the onus will rest on the lessee to resurvey the lease for verification of lease boundaries. The re-survey may be conducted by the PEI Aquaculture Division or by the public land surveyor under the supervision of the PEI Aquaculture Division. The PEI Aquaculture Division, who will have the final approval, must verify the re-survey by a public land surveyor. 6. When disputes arise between one or more adjacent leaseholders, they are obligated as a first step to hire a public land surveyor to determine the correct boundaries. If this action does not result in an end to the dispute, the PEI Aquaculture Division will make a final determination as to the correct boundaries. The decision of the PEI Aquaculture Division may be appealed providing all criteria for appeals are met. (For further information see Appeal Process and Procedures section). 14

15 Procedure: 1. Upon receipt of a complaint of a lessee utilizing area outside their leased area, staff of the PEI Aquaculture Division will conduct a site visit to chart location of the gear or site markers. 2. Lessees found to have gear, corner markers and/or product in the water outside their lease boundaries will be contacted by telephone or in person. If Lessee does not correct the issue, a registered letter will be sent outlining the course of action to be taken and the timeframe in which to follow the identified course of action and will be documented on the file. 3. If there is a failure to comply with the course of action within the specified timeframe, the PEI Aquaculture Division will initiate action and the cost will be billed to the lessee. 15

16 9. Lease Transactions NEW APPLICATIONS Purpose: A One Stop Process is used to reduce the amount of time and work required by an aquaculture proponent to acquire a new aquaculture lease in the waters of Prince Edward Island. All correspondence relating to a lease application will be coordinated through the PEI Aquaculture Division respecting all new applications and changes to existing leases. The PEI Aquaculture Leasing Referral Committee members will work together to provide a timely response to application and transaction requests. Policy: 1. On December 16, 1999, the PEI Aquaculture Leasing Management Board recommended Fisheries and Oceans Canada, PEI Aquaculture Division cease acceptance of all aquaculture lease applications. On October 16, 2000, the PEI Aquaculture Leasing Management Board lifted the moratorium on applications for bottom culture leases. Again, on October 16, 2006, the Board partially lifted the moratorium on applications for off-bottom oyster leases. In order to eligible, applicants must have an existing bottom culture oyster lease approved prior to July 12, The moratorium on water column mussel leases remains in place. 2. The maximum size limit for a new lease application will be 100 acres. The PEI Aquaculture Division also has the ability to limit a lease site depending on local circumstances. New applicants for bottom culture sites are normally limited to 5 acres unless the PEI Aquaculture Leasing Referral Committee recommends an area with a greater acreage based on the site development plan and assessment criteria. 3. All applications for an aquaculture lease on Prince Edward Island must be submitted to the PEI Aquaculture Division. The date of the application will be recorded and application will be sorted by date of receipt. Those applications received first will receive priority status. 4. An applicant may be an individual, a partnership between one or more individuals or a company, corporation. 5. A written notification of receipt of application will be sent to the applicant. The PEI Aquaculture Division will pre-screen the application for completeness and the applicant will be notified if more information is required. 6. Before the application can be processed, the following information is required (but not limited to): Application form (including name, location of site, site dimensions). A digital map from the PEI Aquaculture Division showing location of site. A site development plan showing the proposed site and utilization at full production. 16

17 7. Complete applications and site assessments information will be reviewed by the PEI Aquaculture Leasing Referral Committee, who will meet on the second Tuesday of each month to review new applications. The complexity of the application and site requested will determine the turnaround time to process an application. Those applications requiring a Navigable Waters Protection Act (formal assessment or a Canadian Environment Assessment Act) screening may require additional time for review. The PEI Aquaculture Division will maintain communication with the applicant and advise the applicant on the status of the application, and if possible advise on anticipated time frame for its resolution. 8. Where an incomplete application is submitted and the applicant is unable to provide the necessary information for processing purposes within a 10 working day period or in a specified timeframe as determined by the PEI Aquaculture Division, the application will be cancelled and the applicant may make a request in writing for an extension to the 10-day period. The reasons for the requested extension must be fully explained and approved by the PEI Aquaculture Division. 9. Applicants who withdraw their application or have an application rejected during the pre-screening phase will be refunded their application fee. 10. The applicant may appeal the decision. (For further information see the Appeal Process and Procedures section). Once the application proceeds to the site evaluation process, no refund of application fees will be issued. 11. Where an applicant has outstanding lease or application fees, or is in violation on the terms and conditions of an existing lease contract(s) or the Fisheries Act & Regulations, the application will not be processed until the outstanding issues are resolved. 12. Applications will not be accepted for an area that has not been classified or opened under the Canadian Shellfish Sanitation Program or is zoned C under the PEI Aquaculture Leasing Zoning System. In case where an application is received for an area that is in contravention of any of the above, the application will be denied with an explanation for this rejection. The application fee will be refunded. 13. If circumstances change and an area previously closed and classified C under the PEI Aquaculture Leasing Zoning System is to be opened and classified A, the PEI Aquaculture Leasing Referral Committee (under the direction of the PEI Aquaculture Leasing Management Board) will have a pre-planning stage for the area. The PEI Aquaculture Leasing Referral Committee will divide the available area into predetermined leases and then Fisheries and Oceans Canada will state the number of available leases and the total acreage available and will identify the deadline for application submission. If the number of applications exceeds the number of leases, a draw will be held for the available water. All applications will be pre-screened by the PEI Aquaculture Division and only those valid applications will be eligible for the draw. 17

18 Procedure 1. An information package containing all appropriate information (application form, guideline document) will be given to the applicant upon request. 2. Applications received by the PEI Aquaculture Division will be date stamped and assigned a unique, traceable application number and a new file, to be used henceforth in all correspondence. 3. A preliminary screening will be carried out by PEI Aquaculture Division staff to ensure application is completed. Applicants submitting an incomplete application will be notified first by telephone to advise that the application is not complete. Should the applicant not provide this information within 10 business days, a registered letter will be sent to the applicant. This letter will advise that they have 10 business days from the receipt of the letter to supply the additional information or to request in writing an extension to the timeframe to gather the requested information. If after the specified time period no correspondence is received, or if the registered letter is returned to the PEI Aquaculture Division unclaimed, the application will be cancelled and the application notified in writing, if possible. 4. Those applicants with an application that is in direct contravention of the PEI Aquaculture Leasing Policy will receive a letter rejecting the application, complete with the rationale for the rejection. All applications withdrawn or rejected prior to the site evaluation process will be eligible for a refund. 5. Those applications that pass through the initial screening process will then move to the site evaluation process by the PEI Aquaculture Division. The requested lease site will be located and data collected on characteristics and activities in the area. Site evaluation criteria to be used in the process are outlined in Appendix Once the application has passed through the site evaluation process, the PEI Aquaculture Division will submit the application, with all supporting data, to the PEI Aquaculture Leasing Referral Committee for review. At the direction of the PEI Aquaculture Leasing Referral Committee, input may be sought from other parties with a potential to be impacted by the proposal. 7. The PEI Aquaculture Leasing Referral Committee is composed of members from: Fisheries and Oceans Canada - Conservation and Protection Branch Fisheries and Oceans Canada - Habitat Fisheries and Oceans Canada - Resource Management Transport Canada Navigable Waters Protection Branch PEI Department of Fisheries, Aquaculture & Rural Development PEI Department of Environment, Energy & Forestry Environment Canada Canadian Wildlife Services 18

19 8. The PEI Aquaculture Leasing Referral Committee will meet on the second Tuesday of each month to access applications against his/her agency s particular responsibility. Each PEI Aquaculture Leasing Committee member will make a recommendation for: 1. Support 2. Support with conditions 3. Non-support The chairperson of the PEI Aquaculture Leasing Referral Committee will then communicate the committee s decision to the Chief of the Aquaculture Division, who will act on the recommendation of the committee. The PEI Aquaculture Division will advise the PEI Area Director, Fisheries and Oceans Canada who will render a decision. 9. If the PEI Aquaculture Leasing Referral Committee believes an application should be denied for reasons of public conflict, the applicant will the forwarded correspondence explaining the application is pending denial. The applicant will be given the option to meet with the PEI Aquaculture Leasing Referral Committee and explain his or her case and discuss the factors that relate to the recommendation of the PEI Aquaculture Leasing Referral Committee. 10. After considering the applicant s information, the PEI Aquaculture Leasing Referral Committee would make their final recommendation. 11. In the event of a non-support, the PEI Aquaculture Division will notify the applicant by letter of the decision and the reasons for the decision. The applicant will be advised if the decision can be appealed. 12. Should the applicant disagree with this recommendation, he or she will have the right to appeal to the PEI Aquaculture Leasing Appeals Panel. 13. Applicants will have a period of six months from the date they are advised of approval to accept an approved application. At the end of the six month period, a registered letter will be sent to the applicant advising the application will become null and void after a period of 60 days of receipt of this letter. Any applications with this status as of February 4, 2009, will be subject to these timelines and advised in writing of this policy amendment. 14. The support of an application by the PEI Aquaculture Leasing Referral Committee will not imply approval under the Navigable Waters Protection Act or Canadian Environmental Assessment Act for lease applications involving structures in the water; the application is or is not acceptable for transmittal to the next step in the process. 19

20 15. If the PEI Aquaculture Leasing Referral Committee supports the application and a Navigable Waters Protection Act formal assessment or exemption is necessary, then the PEI Aquaculture Division will submit the application to the appropriate department for Navigable Waters Protection Act and/or Canadian Environmental Assessment Act assessment. Approval under Navigable Waters Protection Act or Canadian Environmental Assessment Act will require additional time for processing and the PEI Aquaculture Division will keep the applicant informed on the status of the application. Fisheries and Oceans Canada reserves the right to make the final decision on applications. 20

21 LEASE TRANSFER Purpose: Those leaseholders wishing to transfer a lease must make application to the PEI Aquaculture Division. A lease transfer allows for the entrance of new entrants or growth for an existing entrant. Policy: 1. The transfer of lease must be reviewed by the PEI Aquaculture Leasing Referral Committee who will make a recommendation on the assignment of the lease to the PEI Aquaculture Division. 2. Lease transfers cannot be processed until all lease fees are paid in full and annual lease reports are up to date. Any liens or mortgages against the lease(s) must be satisfied. 3. During the first 24-month period of a newly approved bottom culture lease, a leaseholder cannot request to transfer this lease. Upon completion of the 24-month period, a site assessment will be conducted to verify that the lease is in production, at which time the leaseholder may request to transfer the lease. 4. Any transfer of a lease will result in a new lease contract being issued for the new lease. Procedure: 1. A Request to Transfer signed and witnessed by the lessee must be submitted to the PEI Aquaculture Division accompanied by a $200 processing fee and a site development plan outlining the new leaseholder s proposed development on this lease. 2. The PEI Aquaculture Leasing Referral Committee will review all lease transfers and make a recommendation to the PEI Aquaculture Division for a final decision. 21

22 MORTAGE TO A LENDING INSTITUTION Purpose: The mortgage assignment of a lease allows the lessee to use the lease to secure funding. Policy: 1. The assignment of a lease to a lending institution must be approved by the PEI Aquaculture Division. 2. Unless otherwise stated by the PEI Aquaculture Division, the terms and conditions of the lease remain in effect. 3. Lease assignments cannot take place until all fees are paid in full and all liens and mortgages have been satisfied. Procedure: 1. In all cases, a "Request to Assign" form must be dated, signed, witnessed and accompanied by the processing fee and forward to the PEI Aquaculture Division for any lease assignment. The "Request to Assign" form will be dated and stamped by the PEI Aquaculture Division. The information on the "Request to Assign" form must include to whom the lease will be assigned to. 2. If approved, the PEI Aquaculture Division will complete a "Consent to Assignment of Lease" form. A completed copy of the "Consent to Assignment of Lease" form signed by Chief of the PEI Aquaculture Division on behalf of the Minister of Fisheries and Oceans Canada and will be sent to the lessee and the lending institution. 3. The lessee must provide the PEI Aquaculture Division with a copy of the mortgage assignment contract following the approval. 22

23 SUB-LEASE Purpose: Those leaseholders wishing to sublet all or a portion of their lease to another leaseholder must do so through a lease sublet agreement. Policy: 1. The sublet of a lease from on proponent to another requires approval from the PEI Aquaculture Division. 2. The terms and conditions of the lease apply to the sublet agreement and are the responsibility of the lessee. Procedure: 1. A formal request including a copy of the sublet agreement and a Request to Sublet form (available at Fisheries and Oceans Canada) must be submitted to the PEI Aquaculture Division. A new or update site development plan is also required from the sublet agreement. 2. A copy of the new site development plan and the Request to Sublet form must be reviewed be the PEI Aquaculture Leasing Referral Committee and the PEI Aquaculture Division 3. If approved, the PEI Aquaculture Division will complete a Consent to Sub-lease form. A copy will be sent to the lessee and the sublet agreement. 4. All fees are the responsibility of the lessee. 23

24 WILLS/BEQUEATHS Purpose: A will/bequeath allows a lease to be transferred in the event of the death of the lessee. Policy: 1. In the event of the death of a lessee, all interests in the lease would rest with their heirs, executor or administrators of the estate. 2. Where an executor is identified, a notary s copy of the Letters of Probate (including the will) or Letters of Administration must be presented to the PEI Aquaculture Division. 3. When no executor or administrator is identified, the matter is referred to Probate Court (as per Section IV of the Probate Act) to determine what evidence, if any should be obtained to prove the rights of the heirs. 4. Any transfer of a lease will result in a new contract being issued for the new lease holder. Procedure: 1. A request, in writing, must be made to the PEI Aquaculture Division to transfer an aquaculture lease from an estate. A copy of the letters of probate (including the will) is required so that the PEI Aquaculture Division can determine the disposition of the estate of the deceased lessee. 2. The above request including a copy of the letters of probate must be submitted with a $200 processing fee and a site development plan outlining the new leaseholder s proposed development of this lease. 3. The PEI Aquaculture Leasing Referral Committee will review all lease transfers and make a recommendation to the PEI Aquaculture Division for a final decision. 24

25 FORMATION OF A COMPANY Purpose: Those leaseholders wishing to form a company and transfer lease(s) to the company. Policy: 1. Companies and/or corporations are required to submit the following information prior to a lease being transferred into a company name: A copy of the articles of incorporation or letter patent of the corporation; Location and address of the head office of the corporation and the local office, if different from the head office; Names and addresses of the officers of the corporation; Official or designated contact person for the corporation, i.e. name, address, phone number, facsimile number and address of the person with whom the PEI Aquaculture Division to communicate; Indented impression of the company seal; Resolution authorizing the company to enter into lease transactions and the relevant by-law or resolution setting out the signing authority of the officers authorized to sign the lease documents and other relevant documents; Declaration stating whether or not the firm is a Canadian-controlled corporation within the meaning of the Income Tax Act as amended from time to time; The company or corporation officers are obliged to notify the PEI Aquaculture Division of any changes in officers, signing officers, mailing addresses, ownership or dissolution of the company. 2. Formation of a company requests cannot be transferred until all lease fees are paid in full and annual lease reports are up to date. 3. Any transfer of a lease will result in a new contract being issued for the new company or corporation. Procedure: 1. A Request to Form a Company form must be dated, signed and witnessed and submitted to the PEI Aquaculture Division accompanied by a processing fee and company information as described above. 25

26 ADD OR DELETE A NAME Purpose: Leaseholders may wish to add or delete a name to a lease contract. Policy: 1. A request to add or delete a name must be reviewed by the PEI Aquaculture Leasing Referral Committee who will make a recommendation to the PEI Aquaculture Division. 2. In the case of the deleting a name, a formal transfer will be required when the original leaseholder s name is deleted from the lease contract. 3. Approval of an Add or Delete Name request will result in a new lease contract being issued. Procedure: 1. An Add or Delete Name request must be submitted to the PEI Aquaculture Division along with a $200 transaction fee. 2. In the case of the original leaseholder s name being deleted, request will be subject to the policy and procedures as outlined for the Transfer of a Lease. 3. The PEI Aquaculture Leasing Referral Committee will review requests and provide a recommendation to the PEI Aquaculture Division. 26

27 REQUEST TO ADD A SPECIES Purpose: Leaseholders may wish to add a species to their lease contract. Policy: 1. A request to add a species must be reviewed by the PEI Aquaculture Leasing Referral Committee who will make a recommendation to the PEI Aquaculture Division. 2. Approval of a request to add a species will result in a new contract being issued. 3. A moratorium is in place on the application for water column mussel leases. As a result, a request to add mussels as species to an off-bottom oyster lease contract will not be accepted. Procedure: 1. A Request to Add a Species form must be submitted to the PEI Aquaculture Division along with with a $200 transaction fee and a site development plan describing the proposed development of this species on the lease. 2. The PEI Aquaculture Leasing Referral Committee will review requests and provide a recommendation to the PEI Aquaculture Division. 27

28 RECONFIGURATION OF LEASE Purpose: The purpose of this policy is to permit a leaseholder and/or the PEI Aquaculture Leasing Division to reconfigure an aquaculture lease to allow for better management or address significant issues related to the current lease. Policy: 1. A request to reconfigure a lease must be reviewed by the PEI Aquaculture Leasing Referral Committee who will make a recommendation to the PEI Aquaculture Division. 2. Reconfiguration requests require an amended site development plan and a site assessment of the new area, subject to the criteria outlined in the Site Assessment Criteria. 3. Reconfiguration requests for off-bottom or water column leases will have no net gain in acreage. Reconfigurations will be categorized into one of the following: a. Minor reconfiguration is less than 10% of the current lease area. b. Major reconfiguration is more than 10% of the current lease area to the maximum of 75%. This type of request will only be considered in extenuating circumstances such as but not limited to significant economic impact, navigation, change in bottom, environmental issues or public good. A review will also consider the impact of the reconfiguration on other leaseholders. 4. Repeat requests for reconfigurations will not be accepted except in extenuating circumstances. 5. Support of an off-bottom or water column reconfiguration will not imply approval under the Navigable Waters Protection Act. 6. Approval of an application to reconfigure a lease will result in a new contract being issued. Procedure: 1. Leaseholders must submit a site development plan describing the rationale for the reconfiguration and proposed development, along with a transaction fee. 2. The PEI Aquaculture Leasing Referral Committee will review the above noted information and make a recommendation to the PEI Aquaculture Division. 28

29 AQUACULTURE LEASE RENEWALS Purpose: The aquaculture lease renewal ensures site utilization and maintains industry and resource development. Policy: 1. The Minister of Fisheries and Oceans Canada may renew the lease contract up to four times, for 5 years from the date on which the lease contract comes into force. At the end of the final term, the Minister of Fisheries and Oceans may approve additional 5-year terms under such terms and conditions as he or she may determine. 2. If a lease will not be renewed at the end of 25 years, the lessee must be notified in writing and be given reasonable time to remove all gear, product, etc. 3. Long-term leases with an astronomic or grid survey on file must have a new survey completed to the satisfaction of the PEI Aquaculture Division at the time of the 25 year renewal. 4. When a leaseholder fails to develop or operate a lease site in accordance with the approved site development plan, the lease renewal may be refused and the lease site cancelled (as outlined in the Cancellation of a Lease section). Any Extenuating circumstances for non-development of a lease will be taken into account at the time of lease renewals. 5. If a lease site has become contaminated since being approved and is now in a closed zone, the lessee may renew the lease but must adhere to regulations outlined in the Management of Contaminated Fishery Regulations for shellfish harvest in contaminated water. Procedure: 1. The PEI Aquaculture Division will contact (in writing) the leaseholder of a long-term lease one-year prior to the expiration of the lease term. If the leaseholder has fulfilled all the terms and conditions of the lease and wish to have the lease renewed, a new lease contract is drawn up by the PEI Aquaculture Division for signature by the leaseholder and the PEI Aquaculture Division. All fees are due and payable at the time of renewal. An updated site development plan is required at the time of renewal. 2. If the leaseholder fails to develop or operate the leased site in accordance with the approved site development plan, the PEI Aquaculture Division may refuse the lease renewal and the lease site cancelled. At the time of lease renewals, the PEI Aquaculture Division will take into account any extenuating circumstances for nondevelopment. 3. Should the applicant disagree with this recommendation, he or she would have the right to appeal to the PEI Aquaculture Leasing Appeals Panel. (For more information see the Appeal Process and Procedures section) 29

30 SURVEY OF LEASE Purpose: To ensure that all leases have coordinates in the Lat/Long NAD 83 Datum on file, so the lease boundaries may be clearly identified. A lessee may have the required survey conducted by the PEI Aquaculture Division or by a registered public land surveyor, with the cost being borne by the lessee. Policy: 1. A lessee may acquire the services of a registered public land surveyor to conduct a survey. It is the responsibility of the lessee to contact the surveyor and the costs will be borne by the lessee. 2. The PEI Aquaculture Division may require a resurvey at any time, if it is deemed necessary to re-establish the boundaries of the lease and the cost will be borne by the lessee. 3. Should a re-survey not be completed within the 3-month period, it will be assumed that the lessee does not wish to retain the lease, and the lease will be cancelled. Notification of the lease being cancelled will be through registered letter. 4. If a lease is to be cancelled for non-survey of the lease and extenuating circumstances exist; a lessee may request an exception to the policy by submitting that request in writing to the PEI Aquaculture Division. The PEI Area Director, Fisheries and Oceans Canada or his designate must review the request and render a decision. 5. The lessee may appeal the decision. (For further information see the Appeal Process and Procedures section). 30

31 10. Cancellation of Lease Purpose: To permit the cancellation of a lease by either the lessee or the PEI Aquaculture Division. Examples of reasons for the cancellation of a lease by the PEI Aquaculture Division include but are not limited to: Failure of the lessee to sign a lease contract; Failure of the lessee to provide the Annual Lease Report ; Failure to remain within the assigned boundaries of the lease; Failure to actively carry out the site development plan; Failure to mark the lease site as per the lease marking policy; Non-payment of lease fees. Policy: 1. A lessee is permitted to cancel the lease at any time and to surrender portions of this lease. There will be no refund of fees for the cancellation of a lease or a portion of a lease in the current fiscal year (or surrender of any portion of a lease). 2. The PEI Aquaculture Division may cancel a lease for any non-compliance of the lease contract terms and conditions, and for violation of other government acts and/or regulations in respect to matters such as navigable waters and pollution control, and for there activities, which are injurious to marine species in the area. 3. If there is a pending cancellation of a lease and extenuating circumstance exist; a lessee may request an exemption to the policy by submitting that request in writing to the PEI Aquaculture Division. The PEI Area Director, Fisheries and Oceans Canada or his designate must review the request and render a decision. 4. The lessee may appeal the decision. (For further information see the Appeal Process and Procedure sections). 5. Upon cancellation, a leased area immediately reverts back to the crown. The Crown, through the PEI Aquaculture Division must, once in every calendar year, post a list of all leases cancelled within the previous 12 months. 6. Any application for a cancelled site, as well as any comments from associations or relevant stakeholder groups, must be reviewed by the PEI Aquaculture Leasing Referral Committee and any re-issuance of a cancelled lease site requires the approval of the PEI Aquaculture Division. Any application will be judged against site assessment criteria currently being developed by the PEI Aquaculture Leasing Referral Committee and to be approved by the PEI Aquaculture Leasing Management Board. 31

32 Procedure: 1. A lessee must notify the PEI Aquaculture Division, in writing, if he/she wishes to cancel the lease. 2. Upon cancellation of a lease for non payment of fees, for violation of lease contract or violation of other government acts and/or regulations, a lessee will be notified by registered letter that the lease has been cancelled and the reasons for such. 3. The lessee relinquished any claim to the product on the lease at the time of the uncontested lease cancellation and after the time allowed for the appeal process. Any product on the lease at the time of cancellation or 30 days after verification of cancellation of the lease, by the PEI Aquaculture Appeals Panel, becomes property of the Crown. The lessee is responsible for the removal of gear from the cancelled site. 4. The PEI Aquaculture Division will keep a record of all cancelled leases within each calendar year. On February 1 st of each year the list of all leases cancelled during that calendar year will be posted at the PEI Aquaculture Division for the public review. 5. All comments/concerns regarding the re-issuance of a cancelled site must be received, in writing, by the PEI Aquaculture Division within 60 days of the listed being posted. 6. Once the period to receive written comments/concerns has expired (April 1 st ), the PEI Aquaculture Division will accept new applications for those cancelled lease sites. Any application for a cancelled lease site must be made on the standard leasing application form and accompanied by the application fee. New applications will be accepted for a 30-day period. All information from industry associations, other stakeholders and new applications will be presented for review to the PEI Aquaculture Leasing Referral Committee. The PEI Aquaculture Leasing Referral Committee will assess all information and make a recommendation on whether the site should be reissued to a new applicant or stay with the Crown to be considered in the domain of the public fishery. 32

33 11. Leases in Contaminated Areas Purpose: To allow for the existence of leases in those growing areas classified as closed or conditionally approved under the Canadian Shellfish Sanitation Program. The PEI Aquaculture Program is maintaining the reputation of Prince Edward Island shellfish. The safety and quality of molluscan shellfish intended for human consumption is of paramount importance. Policy: 1. There will be no new leases issued in areas classified as closed, conditionally approved, prohibited or not classified under the Canadian Shellfish Sanitation Program. 2. Existing leases in closed, conditionally approved, prohibited or not classified areas will remain valid if all terms and conditions of the contracts are met and the regulations for the Management of Contaminated Fisheries are adhered to. For information on the Management of Contaminated Fisheries, please contact your local Fisheries and Oceans Canada Licensing Service Center. 3. Leases in closed or conditionally approved areas may be transferred assigned/bequeathed/or sublet provided the procedure for each transaction (as outlined in this policy) is followed. Procedure 1. The PEI Aquaculture Division will only issue leases in areas that are classified approved under Canadian Shellfish Sanitation Program. 2. Leases in closed, conditionally approved, prohibited or not classified areas may be transferred assigned/bequeathed/or sublet provided the procedure for each transaction (as outlined in this policy) is followed. 33

34 12. Lease Marking Procedures For bottom culture marking procedures, please refer to Appendix 6. For water column lease marking, the jurisdiction for the marking of these sites rests with Transport Canada, Navigable Waters Protection Branch. Each site is evaluated and a marking plan developed to address the navigation concerns. 34

35 13. Appeals Process and Procedures Purpose: The purpose of the Aquaculture Leasing Appeals Panel is to consider/review appeals arising from specific complaints regarding PEI Aquaculture Division and PEI Area Director, Fisheries and Oceans Canada decisions. Appeals of decisions regarding spat collection applications will also considered. Policy: 1. Decisions made prior to November 30, 2001 are no longer open for appeal. Those appealing a decision made after November 30, 2001 must do so within 30 days of written notification of the decision and the appeal process. 2. Membership will be as outlined in the PEI Aquaculture Leasing Appeals Panel Terms of Reference. 3. The PEI Aquaculture Leasing Appeal Panel meetings shall be held, at the call of the Chairperson, on an as required basis. 4. Appeals will be accepted only from clients who have applied to the PEI Aquaculture Division and are appealing a decision of the PEI Aquaculture Division or the PEI Area Director, Fisheries and Oceans Canada that directly involves their application or lease. 5. All appeals must clearly state the decision being appealed and the reason for the appeal. Failure to do so may result in the PEI Aquaculture Leasing Appeals Panel rejecting the appeal application. 6. The PEI Aquaculture Leasing Appeals Panel reserves the right to call upon members of the PEI Aquaculture Leasing Referral Committee, the PEI Aquaculture Division and any other individuals it deems necessary to acquire a reasonable understanding of the decision being appealed. 7. All minutes and correspondence of meetings are to be considered confidential and only the Regional Director General, Gulf Region, Fisheries and Oceans Canada will deal with any request for release of these documents, subject to the Access to Information Policy. 8. The PEI Aquaculture Leasing Appeals Panel shall be bound by the policies and procedures of the PEI Aquaculture Leasing Management Board and the PEI Aquaculture Division, as well as all relevant federal and provincial acts and regulations. For example, the following decisions are not eligible for appeal: Where it has been deemed to pose a hazard to navigation or the environment ( Navigable Water Protection Act or Canadian Environmental Assessment Act); 35

36 It contravenes the PEI Aquaculture Leasing Zoning System; Or is for a grow-out site in an area closed under the Canadian Shellfish Sanitation Program 9. There is no provision for second level appeals. Procedure: 1. Once the Aquaculture Division has rendered a decision on a lease application or transfer, the applicant will be advised, of the decision in writing, by the Chief of the PEI Aquaculture Division. The letter will advise the applicant of the opportunity to appeal the decision to the PEI Aquaculture Leasing Appeals Panel within 30 days of receipt of the notification. 2. The appeal application and $100 appeal fee (cheque made payable to the Receiver General for Canada) shall be sent by the appellant to the PEI Aquaculture Leasing Division, Fisheries & Oceans, PO Box 1236, Charlottetown, PE C1A 7M8. 3. A copy of the request will be presented to the PEI Aquaculture Division so that the PEI Aquaculture Division may provide the Chairperson of the PEI Aquaculture Leasing Appeals Panel with a copy of the information required to facilitate the appeal process. 4. The Chairperson of the PEI Aquaculture Leasing Appeals Panel will request any additional information that may be required and call a meeting of the PEI Aquaculture Leasing Appeals Panel to review the appeal. 5. The PEI Aquaculture Leasing Appeals Panel will provide the appellant with the opportunity, at his/her expense, to appear before the PEI Aquaculture Leasing Appeals Panel. In instances where it is not practical, the PEI Aquaculture Leasing Appeals Panel will allow the Appellant to make a written submission or set up (at the appellant s expense) a telephone call. 6. Any new or additional information presented to the PEI Aquaculture Leasing Appeals Panel will be referred back to the PEI Aquaculture Leasing Referral Committee and the PEI Aquaculture Division for reconsideration. If after further consideration the recommendation of the PEI Aquaculture Leasing Referral Committee still stands, the matter will be sent back to the PEI Aquaculture Leasing Appeals Panel to complete the appeals process. 7. A concise record will be kept of all PEI Aquaculture Leasing Appeals Panel meetings (including any abstention requested due to actual or perceived conflicts of interest). 8. On hearing an appeal, the PEI Aquaculture Leasing Appeals Panel shall make a recommendation to the Regional Director General, Gulf Region, Fisheries and Oceans Canada, to confirm, vary or reverse the decision appealed. The PEI Aquaculture Leasing Appeals Panel shall provide a written summary of its reasons to the Regional Director General within 45 days of receipt of the appeal. The Area Director PEI shall be copied on the recommendation. The Panel will make the recommendation based on all available information and predicated by: 36

37 a. Determining if the Appellant was fairly treated in accordance with the Fisheries and Oceans Canada leasing policies, practices and procedures; and b. Determining if extenuating circumstances exist for deviation from established policies, practices and procedures. 9. Taking into consideration the recommendation of the PEI Aquaculture Leasing Appeals Panel and Regional Director General, Gulf Region, Fisheries and Oceans Canada shall make a decision to confirm, vary or reverse the decision appealed. 10. The response from the Regional Director General, Gulf Region, Fisheries and Oceans Canada to the appellant shall clearly outline what the recommendation of the PEI Aquaculture Leasing Appeals Panel was and Fisheries and Oceans Canada s rationale for support or denial within 60 days of the PEI Aquaculture Leasing Appeal Panel s receipt of the appeal. A copy of this letter is to be forwarded to the PEI Area Director, Fisheries and Oceans Canada and the PEI Aquaculture Leasing Appeals Panel chairperson. 11. If the Appellant is successful, he/she will be reimbursed the appeal fee. 37

38 14. Policy Amendments Purpose: To permit changes to the PEI Aquaculture Leasing Policy when the need to update the policy arises. Policy: 1. The PEI Aquaculture Division, PEI Aquaculture Leasing Referral Committee or the PEI Aquaculture Leasing Appeals Panel may, from time to time, request that the PEI Aquaculture Leasing Management Board amend the PEI Aquaculture Leasing Policy for Prince Edward Island. 2. The PEI Aquaculture Leasing Management Board will consider the views of other relevant stakeholders in arriving at a decision regarding changes to the policy. Procedure 1. Reasonable efforts will be taken by the PEI Aquaculture Leasing Management Board and the PEI Aquaculture Division to inform the aquaculture industry of all changes to the policy. 2. All persons making use of this document are reminded that it has no official sanction and its content may change without prior notice. Fisheries and Oceans Canada should be consulted for all purposes of interpreting and applying this policy. 38

39 APPENDIX 1 Terms of Reference: PEI Aquaculture Leasing Management Board Objectives: 1. To provide management advice and direction to the PEI Aquaculture Leasing Program by assuring a co-managed, co-funded mechanism existing under a framework where policy decisions are made and shared by the stakeholders; 2. To provide direction and policy advice for the PEI Aquaculture Leasing Program; 3. To provide advice relative to the Gulf Region Molluscan Spat Collection Operational Policy, 4. To approve priorities and develop business and financial plans associated with the implementation and ongoing management of the PEI Aquaculture Leasing Program. Chairperson Lease Management Board Members Federal Government Representative - PEI Area Director, Fisheries and Oceans Canada Provincial Government Representative - Deputy Minister of Fisheries, Aquaculture and Rural Development 3rd Government Representative PEI Cultured Mussel Growers Association PEI Oyster Growers Group Inc. PEI Shellfish Association Ex-Officio (non-voting) - Chief, Aquaculture Division Ex-Officio (non-voting) - Executive Director, PEI Aquaculture Alliance Secretary- Administrative Assistant, Aquaculture Division Guidelines: 1. The chairperson is selected by PEI Aquaculture Leasing Management Board members and serves at their pleasure. PEI Aquaculture Leasing Management Board are to be appointed as representatives of their respective organization or agency. The terms of industry members will be two years initially. At the end of the board s second year of operation, industry members will be re-appointed for a one, two or three year term, this to insure a rotation among industry groups. Industry members will then be appointed for three year terms, renewable at the discretion of their respective organization. 39

40 2. Each PEI Aquaculture Leasing Management Board member: Procedures: is equal at the table; has a mutual trust and respect for other members positions; is willing to consider any and all suggestions; is mandated and empowered to negotiate on behalf of their organization or agency, following proper consultation with that organization or agency and; understands that any proposed changes to board policy or operations resulting from their outside consultations are brought first to the board for discussion. 1. The PEI Aquaculture Leasing Management Board will operate under the principle of consensus; if no consensus is reached a vote will be held. 2. A quorum of at least 2 industry and 2 government (one of who must be a representative of Fisheries and Oceans Canada) members will be required. 3. One alternate will be identified by each PEI Aquaculture Leasing Management Board member. The PEI Aquaculture Leasing Management Board may call upon other persons for assistance, as it considers necessary. 4. In the initial period, the PEI Aquaculture Leasing Management Board will meet at least once every month. Formal minutes will be kept and PEI Aquaculture Leasing Management Board consensus and rationale will be recorded. Minutes will be distributed at least one week prior to the meeting and will include an agenda for the next meeting. The chairperson will establish the agenda for meetings in consultation with members. 5. The PEI Aquaculture Leasing Management Board will approve a standing list of observers. New observers will be identified one week prior to a PEI Aquaculture Leasing Management Board meeting and will be approved by members. Observers will sit away from the table and will not take part in discussions unless invited to do so by the chair. Each member will be contacted by the secretary when a request for a new observer is received. 6. The PEI Aquaculture Leasing Management Board will approve an annual work plan and budget specifying the activities to be undertaken by the PEI Aquaculture Leasing Division and the costs associated with these activities. The PEI Aquaculture Leasing Management Board will review the financial statements of the PEI Aquaculture Leasing Program periodically and make required adjustments. The PEI Aquaculture Leasing Division will implement the decisions of the Board. Communications: The PEI Aquaculture Leasing Management Board will develop a communications strategy around the key issues of the day. The PEI Aquaculture Leasing Management Board Board will produce an annual report within three months of the end of each fiscal year, that is to say, by June

41 APPENDIX 2 Terms of Reference: PEI Aquaculture Leasing Referral Committee Mandate: 1. To review applications for aquaculture leases and/or aquaculture lease transactions against the leasing policy developed by the PEI Aquaculture Leasing Management Board. 2. To review spat collection applications against the Gulf Region Molluscan Spat Collection Operational Policy. 3. To assist in the resolution of contentious issues and to otherwise develop recommendations and advise on policy amendments in support of the objectives of the PEI Aquaculture Leasing Management Board. 4. To evaluate applications and review issues against current policy (with respect to habitat, navigation, water quality, the public fishery, the PEI Aquaculture Leasing Zoning System, other stakeholders and other water users) and provide advice to the PEI Aquaculture Division, Fisheries and Oceans Canada. Membership Fisheries and Oceans Canada Conservation & Protection Fisheries and Oceans Canada Habitat Fisheries and Oceans Canada Resource Management Transport Canada - Navigable Waters Protection Branch PEI Agriculture, Fisheries & Aquaculture PEI Environment, Energy & Forestry Environment Canada -Canadian Wildlife Service The Chief of the PEI Aquaculture Division (or an identified alternate) will be in attendance to provide details on site evaluations and other background information as required. The PEI Aquaculture Leasing Referral Committee may call upon (on an as needed basis) the attendance of other provincial or federal government representatives whose attendance may be of benefit when reviewing applications. 41

42 Guidelines: 1. The PEI Aquaculture Division will ensure that all information necessary to evaluate a lease application/transaction is compiled for the PEI Aquaculture Leasing Referral Committee. 2. When possible, lease applications and reports from the PEI Aquaculture Division will be forwarded to all PEI Aquaculture Leasing Referral Committee members in advance of a scheduled meeting. 3. PEI Aquaculture Leasing Referral Committee meetings shall be held the 2 nd Tuesday of each month. 4. The PEI Aquaculture Leasing Referral Committee will nominate and select a chairperson for a period of six months. The position of Chairperson will then be rotated every six months among the selected agencies. 5. A quorum consisting of the Chairperson (or alternate chairperson) and one federal and one provincial representative (or their named alternate) are required to conduct a meeting. 6. Each PEI Aquaculture Leasing Referral Committee member is to assess the application against his or her agency's particular responsibility. 7. PEI Aquaculture Leasing Referral Committee members will provide an outline of their agency's mandate. 8. Each PEI Aquaculture Leasing Referral Committee member will make a recommendation for support, support with conditions or rejection. The support of the PEI Aquaculture Leasing Referral Committee will not imply approval under Navigable Waters Protection Act or Canadian Environmental Assessment Act. These legislative requirements will follow an application supported by the PEI Aquaculture Leasing Referral Committee. 9. If a unanimous consensus is reached, the Chief of the PEI Aquaculture Division will act on the recommendation of the committee. If no consensus can be reached, the Chief of the PEI Aquaculture Division will advise the PEI Area Director, Fisheries and Oceans Canada, who will render a decision. The applicant will be notified in writing of the decision. 10. If the application is not supported; and subject to certain conditions set out by the PEI Aquaculture Leasing Appeal Board; the applicant may apply for review, in writing, to the PEI Aquaculture Leasing Appeal Board within 30 days or receipt of notification. 42

43 APPENDIX 3 Terms of Reference: PEI Aquaculture Leasing Appeals Panel Mandate: To make recommendations on appeals arising from Fisheries and Oceans Canada, PEI Aquaculture Division decisions to the Regional Director General, Gulf Region, Fisheries & Oceans, Canada after considering/reviewing the pertinent information and section(s) of the PEI Aquaculture Leasing Policy and the Gulf Region Molluscan Spat Collection Operational Policy. Membership: The Aquaculture Leasing Appeals Panel will be comprised of three individuals nominated by industry (and should be persons knowledgeable about the industry), one representative from the federal government and one representative from the provincial government. The Regional Director General, Gulf Region, Fisheries & Oceans Canada will appoint an independent, non-industry person as chairperson. The PEI Fisheries, Aquaculture and Rural Development will provide secretariat support. The directors/executive members of the various shellfish associations, as well as members of the PEI Aquaculture Leasing Management Board and the PEI Aquaculture Leasing Referral Committee may not sit on the PEI Aquaculture Leasing Appeals Panel. Guidelines: 1. Members are to be appointed as representatives of their respective organization or agency. The term of government members will be determined by their respective government agencies. The terms of industry members will be two years initially. At the end of the PEI Aquaculture Leasing Appeal Panel s second year of operation, industry members will be re-appointed for one, two or three term in order to ensure continuity within the PEI Aquaculture Leasing Appeal Panel while allowing for a rotation among industry representatives. Industry members will then be appointed for three-year terms, renewable at the discretion of their respective organizations. 2. The PEI Aquaculture Leasing Appeals Panel is only to review requests from current leaseholders or license or lease applicants who are concerned with the interpretation and application of the PEI Aquaculture Leasing Policy or the Gulf Region Molluscan Spat Collection Operational Policy by the PEI Leasing Referral Committee and the PEI Aquaculture Division with respect to their lease or lease application. 3. A member of the PEI Aquaculture Leasing Appeal Panel shall not participate in the hearing of a matter in which he or she has a direct personal interest, or in which the chairperson of the PEI Aquaculture Leasing Appeals Panel determines the member has an actual or perceived direct personal interest. The minutes of the appeal hearing shall record such absences. 4. The chairperson, in preparing the agenda for the PEI Aquaculture Leasing Appeals Panel meetings will provide a copy of the relevant information to each PEI Aquaculture Leasing Appeals Panel member at least 10 working days in advance of each hearing. 43

44 5. A quorum for any PEI Aquaculture Leasing Appeals Panel meeting will be four people, which must include the chairperson, at least one industry representative and at least one government representative. 6. Appeal recommendation will be made by vote. The Chairperson will only cast a vote in the event of a tie. In the event that the PEI Aquaculture Leasing Appeal Panel is unable to reach a consensus on the recommendation, the matter will be forwarded to the Regional Director General, Gulf Region, Fisheries and Oceans Canada for reveiw and decision. 7. The Regional Director General, Gulf Region, Fisheries and Oceans Canada reserves the right to reject any recommendation of the PEI Aquaculture Leasing Appeal Panel should it conflict with relevant federal and provincial acts, regulations or policies. 8. The PEI Aquaculture Leasing Appeal Panel shall from time to time provide the PEI Aquaculture Leasing Management Board with a summary report on all appeal recommendations and may at any time request a review of the current policy. 44

45 APPENDIX 4 Terms of Reference: Adaptive Management Mandate 1. To establish a framework by which to enhance ecosystem integrity and promote sustainable shellfish aquaculture; 2. To identify monitoring and research needs that will permit the PEI aquaculture industry to adapt to potentially changing environmental conditions and if necessary, adjust to issues and concerns by fisheries interests and the general public as it relates to the practice of aquaculture in PEI estuaries; 3. To review monitoring and research activities annually to determine the relevance to adaptive management; 4. To recommend the direction and implementation of required environmental management actions to the PEI Aquaculture Leasing Management Board; Membership Membership Fisheries and Oceans Canada Aquaculture Division Fisheries and Oceans Canada Oceans & Habitat Fisheries and Oceans Canada Science Fisheries, Aquaculture & Rural Development PEI Aquaculture Alliance PEI Oyster Growers Group Inc. PEI Cultured Mussel Growers Association Process 1. The committee will be chaired by a member of the PEI Aquaculture Leasing Management Board. Secretariat support will be provided by the PEI Aquaculture Leasing Division. 2. The committee will meet a minimum of twice a year (December and April) or more frequently as required. 3. The committee will develop a prioritized list of monitoring and research needs for shellfish aquaculture-environmental interactions for the consideration of funding partners. This will be presented at the December meeting of the committee. 45

46 4. The committee will submit a report to the PEI Aquaculture Leasing Management Board in December documenting monitoring activities for the past year, emerging issues with respect to aquaculture and monitoring activities for the coming year for the Board s input. 5. The committee will have the responsibility to address aquaculture environmental issues in relation to shellfish aquaculture operations and provide advice to the PEI Aquaculture Leasing Management Board related to concerns by fisheries interests and the general public as it relates to the practice of aquaculture in PEI estuaries. 6. The committee will keep abreast of research and monitoring activities related to the evaluation of environmental effects arising from or impacting upon the shellfish aquaculture industry in relation to aquaculture on Prince Edward Island. 7. The committee will make recommendations on the interaction of shellfish aquaculture and the environment so that an acceptable level environmental quality can be defined, achieved and maintained. 8. The committee will recommend variables (ex. Biomass/acre) to promote environmentally sustainable shellfish aquaculture. 9. The committee will act as an on-going technical advisor to review and evaluate proposals and projects relative to aquaculture-environmental interaction. 10. The committee will have the latitude to engage individuals with expertise from other government departments or disciplines for advice. 46

47 APPENDIX 5 PEI Aquaculture Leasing Program: Schedule of Fees LEASE FEES Aquaculture Lease Fee $10 per acre (Minimum payment of $25.00) SERVICE FEE New Application $200 Lease Transfer $200 ** If there are 3 or more leases involved in a transaction, there will be a flat fee of $500. Assignment Mortgage $100 *3 or more leases involved in a transaction, flat fee of $300. Sublease $100 Wills/Bequeaths $100 Consolidation of leases requiring survey $200 Appeal Fee $100 Formation of a Company $100 *3 or more leases involved in a transaction, flat fee of $300. Addition/Deletion of a Name on a Lease $100 *3 or more leases involved in a transaction, flat fee of $300. ** Fees are subject to change upon review by PEI Aquaculture Leasing Management Board. 47

48 APPENDIX 6 PEI Area Bottom Marking Policy Purpose: This policy deals with leases that use the seabed only, i.e. leases for Oyster, Quahog, Soft-shell clam, etc. Lease Marking Requirements: That the lessee shall mark each and every corner and angle of the area hereby leased with the following: A color moulded white buoy, minimum 12 inches in diameter and a minimum 18 inches high The buoy will be marked as per an Information Buoy (see attached) with PRIV being displayed in a size that is practical for the size of the buoy. The buoy will be marked with a Lease Identification sheet (see attached), available form the Aquaculture Division for a fee of $1. The lease identification information sheet will be bordered by a minimum of 2 inch thick international orange framework (see attached example). The buoys shall be positioned on Differential GPS co-ordinates provided by the DFO -PEI Aquaculture Division or on an approved land based survey position. The buoy will be anchored by an approved anchoring system (see attached). The buoy will remain in the said position at all times to be easily viewed from May 1 to November 30 inclusive (or longer if desired by the leaseholder), ice conditions permitting. To provide added protection, leaseholders have the option to place minimum 6 inch diameter white buoys, on the lease perimeter, between the corner markers. The minimum standard for bottom culture lease marking buoys is proposed subject to the following Canada Shipping Act Private Buoy Regulations, P.C This Bottom Culture Lease Marking Policy takes effect May 1, There will be a phase in period of one year for the minimum size requirements but all bottom corner buoys must be painted white or color moulded white by May 1, The following pages show the requirements for an INFORMATION BUOY according to the Private Buoy Regulations, a draft illustration of a bottom culture marker sheet, based on the above, and the approved anchoring system. 48

49 LEASE INDENTIFICATION INFORMATION SHEET 49

50 APPROVED ANCHORING SYSTEM EXAMPLE #1 One type of anchor is the screw in anchor, the same as is used by the hydro utility companies, often referred to as deadmen. They come in a variety of sizes and the Department specifies minimum sizes of a minimum 6 blade, minimum ¾ rod, minimum 4 long, hot dipped galvanized (see diagram below). This type of anchor would be suitable for soft mud, sand, etc. 50

51 APPROVED ANCHORING SYSTEM EXAMPLE #2 To address the needs in rocky areas, the following anchor type is recommended. A rod made from 1 rebar rod sharpened at one end, a length 4 with a clip ring welded to the side (see diagram below). The rebar could have spurs welded on the sides to aid in holding power. 51

52 APPROVED ACHORING SYSTEM EXAMPLE #3 To address other situations where the first two are not applicable, we suggest a large kellick made of concrete. There could be several variations to address various needs of the Industry. The minimum weight will be 750 lbs. and will be required to sink into the substrate. Examples: KILLICK WITH RING KILLICK WITH STAFF FOR HOLDING MARKERS 52

53 EXAMPLE OF PERIMETER OF BUOY PLACMENT 53

54 APPENDIX 7 Site Assessment Criteria for Lease Applications The following are the normal criteria used by the PEI Aquaculture Leasing Referral Committee in the review of applications for bottom aquaculture lease sites. NAVIGATION ISSUES The presence of existing moorings or floating docks Proximity to channels Proximity to highly used recreational areas Shore access in shallow areas or highly developed upland areas PAST PERFORMANCE History of the applicant/ leaseholder in following through existing site development plan(s) Violations under the Fisheries Act Compliance and adherence with existing policies, marking schemes, and adherence to boundaries Orderliness of site(s) Completeness of Annual Lease Report Outstanding lease fees WATER DEPTHS Proximity of the application to the high water mark (shore access requirements for other water users) WATER QUALITY Classification under the Canadian Shellfish Sanitation Program (CSSP) approved, conditional, closed or prohibited Potential for classification change Carrying capacity ( To be based on scientific information as it becomes available) OTHER WATER USERS Recreational users, including swimmers and near shore water crafts (wind surfers, kayaks, etc.) 54

55 OTHER FISHERIES Recreational Smelt, clam, quahaug Commercial Smelt ( Box trap, gill net, shacks), oyster, clam, quahaug, eel nets, silverside berths, gasperaux, lobster, crab (rock) PROXIMITY TO OTHER FISHERIES Establish a buffer between known commercially public shellfish beds and new leases. As a general guideline, the PEI Aquaculture Leasing Referral Committee does not recommend the situating of a bottom culture lease closer than 500 feet from areas where commercial quantities of shellfish are located. HISTORY OF THE AREA Cancelled lease site Periodic known public fishery Aboriginal claims QUANTITY OF SHELLFISH Leases will not be issued where there is found to be greater than 0.1 market size animal per square foot (or 1 animal per square metre). Likewise, applications with densities greater than 1 animal per square foot of animals over 1 inch (oyster) and ½ inch (clams, quahaug ) will not be supported. Applications containing shellbeds or significant harvestable beds will require a buffer. The grade of the product or the inability of the area to produce market size animals will be taken into account (i.e. significant substrate or environmental issues) Oyster spat less than 1 inch and quahaug/clam spat less than ½ inch will not be a factor. ZONING Zoning designation for aquaculture ( A, B or C ) UPLAND USE Existing cottage development or subdivided, undeveloped areas (access or shorefront enjoyment). As a general guideline, the PEI Aquaculture Leasing Referral Committee does not recommend the siting of a lease closer than 100 feet to shore. In exceptional circumstances, such as soft-shell clam sites where the culture activity is closer to the high water mark and oyster leases where there is no potential interference with adjacent landowners, this guideline can be varied. 55

56 CARRYING CAPACITY Based on scientific information as it becomes available ENVIRONMENTAL ISSUES Migratory birds Fish Habitat 56

57 APPENDIX 8 Zoning Review 57