Court finds against Ministry of Fisheries

There are many people in the Cowichan Valley dedicated to returning our wild salmon runs to their previous abundance.

And they were heartened to hear news of a court decision against the Minister of Fisheries and Oceans for failing to protect wild fish stocks.

On May 6, 2015, Justice Rennie of the Federal Court ruled that the Minister for DFO could not delegate her authority to Marine Harvest to determine whether or not introducing smolts carrying the piscine reovirus could be harmful to wild fish stocks. (Reovirus is not harmful to humans.) The Minister had tried to argue that under the Fishery (General) Regulations (FGRs) and the Pacific Aquaculture Regulations, Marine Harvest had the right to transfer live fish to their oceanbased pens in the Broughton Archipelago.

But Justice Rennie did not see it that way. And as part of his decision, he referenced the Cohen Commission into the Fraser River Sockeye – that diseases on fish farms posed some risk to wild salmon and that “DFO’s number one priority in conducting fish health work” should be protecting the health of wild stocks.

Marine Harvest argued that there is no conclusive link between the piscine reovirus and the much more serious disease, Heart and Skeletal Muscle Inflammation (HSMI), so their decision to move the smolts to open water was a sound one.

The Minister “sheltered behind Marine Harvest’s evidence” said the judge, noting

that the Minister presented no evidence.

The judge pointed out that his role was not to judge the merits of the science but the “reasonableness of the Minister’s exercise of discretion”.

And that is where the real story lies. In its submission, DFO said the Minister depended on guidance from expert advisers and scientific criteria when setting licence conditions.

But the judge noted that the Minister said nothing about the science used to help determine those conditions and used “unsupported statements of science.”

The federal court decision went on to say that “The precautionary principal recognizes, that as a matter of sound public policy, the lack of complete scientific certainty should not be used as a basis for avoiding or postponing measures to protect the environment, as there are inherent limits in being able to predict environmental harm.”

The licence allowed Marine

Harvest to move fish from a diseased stock as long as it did not require treatment.

The judge found that the licence was inconsistent with the FGRs and that it relieved Marine Harvest from its obligation under the law to test for harmful disease since HSMI does not manifest until five to nine months after smolts are transferred to the sea.

The judge found that although the Minister could delegate authority to Marine Harvest to determine if a transfer of fish was permissible, the delegation was not proper because the licence gave unlimited discretion to Marine Harvest to determine the transfer and supervisory control over the assessment should have remained with the department.

The ultimate decision is that parts of Marine Harvest’s licence were declared invalid and to have no force and effect.

It is suspended for four months to allow the Minister to make the necessary regulatory changes for licences.

Whether you support finish aquaculture or not, I think we can all agree that DFO’s main responsibility is the preservation of fish stocks and this decision raps the Minister’s knuckles for forgetting that.

Jean Crowder is the Member of Parliament for Nanaimo-Cowichan. She can be reached at her Duncan office at 250-746-4896.

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