The Federal Court of Canada has ruled that the decision by the federal Minister of Fisheries to gradually close fish farms in the Discovery Islands is unreasonable and violates the rights of salmon producers to procedural fairness.
“Applicants have shown that this decision was made in violation of their rights to procedural fairness,” Judge Elizabeth Heneghan said in her decision delivered on April 22 at a hearing in St. John’s, Newfoundland.
The judge also ruled that an injunction issued on April 5, 2021, which Fisheries and Oceans Minister Bernadette Jordan did not comply with, remains in effect. This injunction allowed the restocking of two farms owned by Mowi Canada West.
On December 17, 2020, the Minister of Fisheries issued a press release announcing her intention to phase out existing salmon farming operations on the Discovery Islands, located between central Vancouver Island and the British Columbia mainland, giving them an 18-month transition period. The minister also ruled that no new fish of any size could be introduced to the Discovery Islands facilities during that time and that all farms must be fish-free by June 30, 2022, but existing fish on the sites could complete their growth cycle. and be collected.
The judge’s ruling said the Cohen Commission’s October 2019 report, among other things, was specific to the Discovery Islands region and included testimony from indigenous peoples expressing concerns that the presence of farmed salmon in the Fraser River salmon fisheries poses a risk to wild salmon.
But nine reports published by September 2020 by the Canadian Scientific Advisory Secretariat following the advice of the Cohen Commission concluded that aquaculture in the Discovery Islands poses no more than a minimal risk of harm to Fraser River sockeye salmon. The reports were made available to the Minister and the DFO. The DFO does not dispute that finding, the judge says.
Despite this, a total of 19 farms were ordered to be removed and the owners complied. But in response to the Minister’s order to liquidate the farms, four members of the Discovery Islands salmon industry, Mowi, Cermaq Canada Ltd., Grieg Seafood BC Ltd. and 622335 British Columbia Ltd. filed applications for judicial review within 30 days. days from the date of news release.
Anti-fish farm activists Alexandra Morton, the David Suzuki Foundation, the Strait of Georgia Alliance, the Living Oceans Society, and the Watershed Salmon Watch Society (collectively referred to as the “Conservation Coalition” in the judge’s ruling) were allowed to intervene in the combined motions for judicial review. .
Industry argued in court that the minister’s decision was made without regard to previous practice of consultation between the DFO and industry, that the minister erroneously limited his authority to issue licenses, and that the absence of grounds for the decision was a violation. procedural justice.
The Minister stated that this decision is a political decision taken in the exercise of her statutory authority to manage fisheries for the benefit of the people of Canada, with particular regard to the interests of Indigenous Peoples.
The minister argued that no procedural fairness was required in making a political decision, but if there was to be any procedural fairness, it was at the bottom of the scale.
The Minister also argued that the applicants had no right to know about the concerns of the indigenous peoples and had no opportunity to respond to those concerns. She submitted that, since the applicants had any legitimate expectations regarding the process, those expectations were met.
The Minister told the courts that the complainants knew what was at stake because she had been involved in discussions with industry and indigenous peoples. She said each applicant had the opportunity to voice their concerns, including the strength of the scientific evidence that DFO relies on, sea lice, relationships with indigenous peoples, and the socio-economic impact of the decision. The judge did not agree with this assessment of the minister.
The judge also ruled that the Minister had not actually informed the applicants of her decision to renew the fish farm licenses and that the applicants had been denied the opportunity to meaningfully answer questions.
The judge ruled that the minister’s decision was overturned and the injunction dated April 5, 2021 remains in effect.
In response to the decision, the British Columbia Salmon Farmers Association posted a statement on its website stating: “The British Columbia Salmon Farmers Association is encouraged that the Federal Court reversed the Minister’s decision to end salmon farming in the Discovery Islands and upheld an earlier injunction issued on April 5, 2021. This is a positive development for the indigenous and non-indigenous coastal communities in which we operate, as well as the thousands of family-supporting jobs our sector supports. We will be contacting the Indigenous Peoples we operate in to reconsider this decision and we will have more information in the coming days and weeks.”
Intervening conservationist Alexandra Morton said in a statement: “The 19 affected salmon licenses expire June 30, 2022. The court’s decision does not prevent the minister from refusing new licenses with stronger justification for his decisions.”
Campbell RiverDFOFish Farms