Why is DFO taking me to court?

Last year I won a legal decision (thank you Ecojustice) prohibiting further transfer of farmed salmon carrying diseases into marine net-pens on the BC coast. 

While common sense suggests putting diseased Atlantic farm salmon in the Pacific ocean is a bad idea, the Harper government and Marine Harvest appealed the decision.

We came to expect this kind action from Harper, but here's the shocker.

The Trudeau government is actually going through with this appeal! Is it in the interests of Canada to spend our tax dollars to assist the salmon farmers to put diseased fish in the ocean?

Furthermore, they are in such a rush that they can't wait for a Vancouver court date so have arranged for this to be heard in a court in Calgary May 26th!

The only sense I can make of this is perhaps the federal Liberal government has lost control of DFO, and the Harper - era bureaucrats are running the department. How is it possible Canada can join in an appeal with Marine Harvest to help them regain the right to put diseased Atlantic salmon into the Pacific?

Fisheries Minister Hunter Tootoo

 

Minister Hunter Tootoo is clearly dedicated to his Nunavut constituents, but there is something very wrong here. Would he go to court to assist companies seeking to put diseased fish in Rankin Inlet?

Furthermore, Minister of Justice, Jody Wilson-Raybould was given the mandate to review all the Harper lawsuits and appeals she inherited.  Did she overlook this one, or is she actually in support of diseased Atlantic salmon going into the waters of her ancestral home?  I am at a loss.

 

 

 

 What can you do?

I am very grateful to Leadnow for creating a platform where multiple emails can be sent to both the Minister of Fisheries, Hunter Tootoo and the Minister of Justice, Jody Wilson-Raybould.

It is not enough to elect good governments, we have to walk beside them and make sure they hear from us at least as much as they hear from corporations, especially when they start drifting badly off course from their own mandates.

If you want to follow the progress of this bizarre situation, please check back here. Below you will find more detail on the case. And thank you to all who take the time to help with this.

I believe there is hope of working with this government to restore both wild salmon and our coastal economy and finally engage in an honourable and constructive government-to-government relationship with the First Nations.

 

Summary

The Canadian Federal Court Decision

The issue we put before the court was whether or not the aquaculture licences issued by the federal government of Canada to each salmon farm were consistent with the requirements of the Canada Fisheries Act.

Section 22 of the Fisheries Act stipulates that a licence cannot conflict with the Fisheries General Regulations.

The Federal Court of Canada found that the Minister of Fisheries had unlawfully given away the power of deciding whether diseased-farmed salmon smolts can be transferred from a hatchery into marine net pens, calling it . “...an unlawful delegation of ministerial discretion and ministerial responsibility for protection and conservation of the fisheries to Marine Harvest.”

Furthermore he ruled that the weight of evidence suggests that PRV causes HSMI, that it would be unreasonable to not to expect HSMI to appear in BC farmed salmon and that PRV infected farmed salmon may be a risk to wild salmon and farmed salmon and thus should not be put in the ocean pens.

The portions of the federal licence regarding use of diseased fish was struck down, the industry has 4 months to comply and if PRV-infected fish will continue to be used it will have to be approved by the Minister herself.

Below are quotes from the decision with the paragraph they are from in brackets [ ].

 

The Federal Court held that:

• DFO has issued licenses that allow the aquaculture industry to transfer fish with diseases or virus that may be harmful to the protection and conservation of fish. And these licenses violate the law and the precautionary principle

• DFO has been unlawfully allowing the aquaculture industry to transfer fish into net pens based on lower environmental standards than the law imposes
  

• DFO has been unlawfully regulating the aquaculture industry based on lower environmental standards than the law imposes 

• DFO is in violation of its regulatory duty/responsibility to only allow the aquaculture industry to transfer fish that do not have any disease, virus or pathogen that may be harmful to wild fish 

• DFO has been allowing the aquaculture industry to transfer fish with diseases that have the potential to “severely impact” the fishery at an international level
  

• DFO has abdicated its legal responsibilities to protect and conserve wild fish by handing off decisions about transferring fish with decisions to the industry
  

• The law requires that “there be no transfers that may be harmful to the protection and conservation of fish” due to diseases or viruses

  Piscine reovirus

  The judge acknowledged that it is not generally up to the courts to rule on science, however, the argument that piscine reovirus is low risk and endemic to BC wild salmon was made by Marine Harvest and so he ruled on PRV.

  • “... the weight of the expert evidence before this Court supports the view that PRV is the viral precursor to HSMI.”
    

  • The evidence before the Court demonstrates that there is a body of credible scientific study, conducted by respected scientists in different countries, establishing a causal relationship between PRV and HSMI.
    

  • the evidence, suggests that the disease agent (PRV) may be harmful to the protection and conservation of fish, and therefore a “lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation
    

  • ... it would be an unreasonable inference to draw from the evidence that it will not appear in farmed Atlantic salmon on the Pacific coast.
    

    The Minister of Fisheries

    • What the Minister cannot do is make unsupported statements of science 

    • The Minister is not, based on the evidence, erring on the side of caution
      

    • The current licenses issued to Marine Harvest and the aquaculture industry do not clearly require the industry to use objective, prescribed scientific measures in assessing disease – indeed the Court suggests that perhaps “all that is required is a quick glance in the tank to assess whether the fish are showing signs of disease”.

    • The current aquaculture licenses unlawfully allow the industry to focus on the health of the farmed fish stock, rather than the health of fisheries resources generally 

The two reasons why Licence Condition 3.1(b)(ii) is unlawful

1. Section 56(b) stipulates that no transfer may take place if they have “any disease or disease agent” that may be harmful to the transfer of fish.

2. The licence condition, in contrast, allows transfers unless the fish show signs of clinical disease requiring treatment

3. Section 56(b), anticipates testing for latent disease agents.

4. The licence relieves Marine Harvest from this obligation imposed by law

   The Fisheries Act states no transfer of fish with a disease/agent that may be harmful. The licence stated no transfer of fish showing clinical disease. But HSMI lag time is 5-9 months. The licence would thus allow for transfer of a disease agent that does not show clinical sign at time of transfer. [63, 64]