The federal fisheries minister’s decision to phase out fish farms in the Discovery Islands is unreasonable and breached the salmon farming industry’s rights to procedural fairness, the Federal Court of Canada has ruled.
“The applicants have shown that the decision was made in breach of their rights to procedural fairness,” Justice Elizabeth Heneghan said in her decision handed down April 22 in a hearing in St. John’s, Newfoundland.
The judge also ruled that an injunction granted on April 5, 2021 that former Fisheries and Oceans Minister Bernadette Jordan did not observe remains in force. That injunction allowed for the restocking of two farms owned by Mowi Canada West.
On Dec. 17, 2020, the Minster of Fisheries issued a press release announcing her intent to phase out existing salmon farming facilities in the Discovery Islands located between central Vancouver Island and the B.C. mainland, giving them an 18-month transition period. The minister also ruled that no new fish of any size may be introduced into the Discovery Islands facilities during this time and that all farms are to be free of fish by June 30, 2022 but that existing fish at the sites can complete their growth-cycle and be harvested.
The judge’s ruling says the Cohen Commission’s October 2019 report, among other issues, specifically referred to the Discovery Islands region and included testimony from First Nations expressing fear that the presence of farmed salmon in Fraser River salmon runs presented a risk to wild salmon.
But nine reports issued by September 2020 by the Canadian Science Advisory Secretariat, as recommended by the Cohen Commission, concluded that aquaculture in the Discovery Islands poses no more than a minimal risk of harm to the Fraser River Sockeye salmon. The reports were available to the minister and DFO. DFO does not dispute this conclusion, the judge says.
In response to the minster’s order to phase out the farms, four participants in the salmon fish farming industry in the Discovery Islands, Mowi, Cermaq Canada Ltd., Grieg Seafood B.C. Ltd. and 622335 British Columbia Ltd, filed applications for Judicial Review within 30 days of the date of the news release.
Anti-fish farm activists Alexandra Morton, David Suzuki Foundation, Georgia Strait Alliance, Living Oceans Society and Watershed Watch Salmon Society (collectively, called the “Conservation Coalition” in the judge’s ruling) were granted leave to intervene in the consolidated applications for judicial review.
The industry argued before the court that the minster’s decision was made without regard to past practices of consultations between DFO and industry, that the minister erroneously restricted her discretion with regard to the issuance of licences and that the lack of reasons for the decision is a breach of procedural fairness.
The minister submitted that the decision is a policy decision, made in the exercise of her statutory powers to manage the fisheries, in the interests of the people of Canada, with special attention to the interests of First Nations.
The minister argued that no procedural fairness is owed in making a policy decision but should any procedural fairness be due, it is at the low end of the scale.
The minister also submitted that the applicants were not entitled to know about the concerns of First Nations nor to have the opportunity to respond to those concerns. She argued that insofar as the applicants had any legitimate expectations about the process, those expectations were satisfied.
The minister told the courts that the applicants knew what was under consideration since she had engaged in discussions with industry and the First Nations. She said each applicant had the opportunity to raise their concerns, including the strength of the science relied on by DFO, sea lice, relationships with First Nations, and the socio-economic impacts of the decision. The judge disagreed with this assessment by the minister.
The judge also ruled that the minister did not give the applicants actual notice of her decision regarding renewal of fish farm licences and that the applicants were denied the opportunity to meaningfully respond to concerns.
The judge ruled that the decision of the minster is set aside and the April 5, 2021 injunction continues and remains in force.
In response to the ruling, the B.C. Salmon Farmers Association posted a statement on its website, saying, “The BC Salmon Farmers Association is encouraged that the Federal Court has set aside the decision of the minister to remove salmon farming in the Discovery Islands and has upheld the earlier injunction granted on April 5, 2021. This is a positive development for the coastal Indigenous and non-Indigenous communities in which we operate, and the thousands of family-supporting jobs our sector sustains. We will be reaching out to First Nations in whose territories we operate to review this decision and will have more to say in the following days and weeks ahead.”
A statement from intervening conservationist Alexandra Morton says, “The 19 salmon farming licences affected will still expire on June 30, 2022. The court’s decision does not prevent the minister from denying new licences with more fulsome reasoning for her decisions.”
A statement from current Fisheries and Oceans Minister Joyce Murray’s press secretary, Claire Teichman, says, “The sustainable and responsible management of Canada’s ocean ecosystems, including wild Pacific salmon, is a priority for Minister Murray.
“The decision to phase out fish farms in the Discovery Islands was based on consultations with local First Nations.
“Minister Murray is aware of the court’s ruling in the case and will be making a decision on next steps in due course. She remains committed to transitioning away from open-net pen salmon farming in coastal British Columbia waters.”
*This story has been edited from its original posting to accommodate a correction.