Paul Seaman, lawyer for 'Namgis, challenged DFO's granting of a licence to Marine Harvest to transfer 1,000,000 Atlantic salmon from the Ocean Falls hatchery into the Swanson Island salmon farm sited in 'Namgis territory on the basis that DFO did not test for piscine orthoreovirus (PRV), and that the nation was not consulted despite the clear risk of harm associated with this transfer.
The 'Namgis tried to get an injunction against this transfer and while the court did not grant the injunction, Justice Mason did find evidence of serious and irreparable harm to the rights of 'Namgis. Why, you might ask did the court allow the transfer? Apparently only because the injunction was filed too close to the time that the smolts had to leave the hatchery. Once farm salmon are prepped for transfer into saltwater, they have to be moved over a very short window of time or they can never enter saltwater throughout their life.
However, DFO and Marine Harvest were aware five months earlier that 'Namgis did not want the Swanson Island salmon farm restocked. 'Namgis members were occupying the farm and while council could not be a part of the occupation, they were informing all parties including the Province of BC, that they had very serious concerns with the transfer. They were clear that the Swanson Island salmon farm was a serious risk of impact to their title and rights, including their constitutionally protected right to fish. Wild salmon in 'Namgis territory have collapsed since the arrival of salmon farms, despite self-imposed fishing restrictions. They communicated very strongly that the disease risk posed by 1,000,000 Atlantic salmon was too great given the ongoing decline in their fish since arrival of the industry.
'Namgis wrote to the then Minister of Dominic LeBlanc, recently convicted of a conflict of interest with another fishery and shuffled out of the position, that this transfer was unconstitutional and requested a meeting. They were ignored.
Marine Harvest claimed that the fish had been tested for PRV and were not infected, but when 'Namgis asked for further details about the tests Marine Harvest would not provide the data. Apparently this information could not be shared as it was "sensitive information." This does beg the question how is a disease-free status threatening to the company, shouldn't it be something they are proud of? Or are they afraid other nations will demand the same information?
In Marine Harvest's application to DFO for the transfer licence, the facility manager stated "I hereby attest the stock show no sign of clinical disease." However, the disease that PRV causes cannot be seen until 5-9 months after the fish enter the saltwater, and in the previous case on this issue that I won, Justice Rennie quashed the use of this language, for this reason i.e. that using lack of visual detection of clinical signs is not a valid test for whether the fish are infected with PRV. I won this case and DFO still refuses to acknowledge this decision. This is a threat to democracy.
Marine Harvest's application to DFO for the licence to transfer these fish includes attestation that the fish were free of IHN, VHS, ISA and several other viruses, but it was silent on PRV. So while the company told 'Namgis the fish were PRV-free, they would not put this information on their application to DFO.
'Namgis's expert witnesses Drs. Routledge, Krkosek and Kibenge provided evidence that if PRV is in the farm salmon now in the Swanson Island farm, the virus could spread up Knights Inlet and out into Blackfish Sound for a distance of 30 miles in each direction, and that the state of the wild salmon populations in and around 'Namgis territory were in such a fragile state that they have little capacity to thrive and no ability to absorb further stressors. They stated that the impact of this virus could be expected to have far reaching effect, even to further deprive the southern resident orca of salmon, as Chinook from Puget Sound and the Fraser River swim into and through this area. This information comes from the head recovery tags.
The most troubling revelation by the 'Namgis lawyer was that these affidavits by scientists studying both PRV and the impact of salmon farms in 'Namgis territory were blocked by the lawyers for Canada from reaching the Minister of Fisheries.
These affidavits set out the potential for serious harm and provided that factual basis that justice Manson concluded represented risk of irreparable harm. and this evidence of harm triggered the duty to consult as a claim or right was potentially threatened by the transfer of one million Atlantic salmon into 'Namgis territory. However, there was not consultation.
Cermaq and MH are currently are trying to have these affidavits struck from the record.
Marine Harvest and Cermaq, you have a problem. It appears that you are trying to hide information from reaching the Minister of Fisheries, and that the lawyers for the Department of Justice may also have tried to hide this information from the Minister.
Lawyer for Canada
The lawyer for Canada got up and for 1.5 hours took the judge to the letters between DFO and 'Namgis. She was trying to make the point that there had been consultation with the 'Namgis. In these letters 'Namgis repeatedly state that they do not want salmon farms in their territory, because they are concerned about the impact of this industry on the wild salmon not only in their territory, but also salmon that use their territory, including specifically the risk from PRV-infection from Atlantic salmon. The validity of these concerns are written into the law in section 56 of the Fishery General Regulations as unlawful.
The judge listened patiently and then asked was there any opportunity for 'Namgis to meet with DFO in regards specifically to the Swanson Island. The answer no.
Similarly to yesterday, these lawyers tried to make the argument that if there was a duty to consult that they had done so in the form of sending information to 'Namgis. I can see why First Nation governments are hesitant to attend meetings or even respond to letters as any communication from them is construed as consultation. Surely this is not actually consultation, by any definition.
Marine Harvest's lawyer said it is unfair to ask for "mandamus" when 'Namgis have no evidence that the Swanson fish have PRV. Of course, the 'Namgis are barred access to the Atlantic salmon in the Swanson fish farm, and in the Ocean Falls hatchery for testing. I get this response from the industry on my research, that I have not tested the fish in the farms, when of course I am prohibited from doing so. However stay tuned on that front...
Marine Harvest asked for a minimum of 4 months to remove its fish from 'Namgis territory if the judge rules that the transfer was unlawful.