(May 26, 2015 Correction: The reference to PRV as a "disease" in the section marked "The precautionary principle" has been corrected to "disease agent." Thank you to reader John Segal for pointing out the error.)
Earlier this May, activist and biologist Alexandra Morton, represented by Ecojustice lawyers, won another victory for wild salmon. In Morton v Ministries of Fisheries and Oceans and Marine Harvest Inc., the Federal Court struck down provisions of fish transfer licenses that allowed diseased salmon to be transferred into open ocean pens, where diseases may transfer more easily between farmed and wild fish.
The case concerns whether the Minister of Fisheries and Oceans (DFO) was authorized to grant a licence to the salmon farming company Marine Harvest to transfer diseased fish into ocean pens. It is worth noting that the decision comes as the federal government is contemplating controversial new aquaculture regulations that would expose wild fish to unnecessary risk. Together, the two raise the question of whether the federal government is adequately protecting wild salmon habitat from the risks and harms of open net finfish aquaculture activities.
DFO’s license allowed Marine Harvest to transfer salmon smolts from its hatchery to ocean pens. After the transfer, the fish were found to be infected with piscine reovirus (PRV). While the license permitted the transfer of diseased fish under certain conditions, federal regulations guiding when transfer licenses could be granted required that transferred fish not have any disease or disease agent.
This apparent conflict between the regulations and Marine Harvest’s license led Alexandra Morton to ask the Court whether the license conditions permitting the transfer of fish infected with PRV were valid.
PRV and risks to BC salmon
PRV was first found in farmed Atlantic salmon that were suffering from heart and skeletal muscle inflammation (HSMI). Fish affected by HSMI are anorexic, swim abnormally, and can have mortality rates as high as 20%. Since its initial discovery in a single fish farm in Norway, HSMI has been found in farmed Atlantic salmon in Scotland, Chile, and Canada. While the exact cause of HSMI is debated, research suggests that PRV is the likely cause of HMSI, a conclusion that the Court held was supported by the evidence.
The Minister’s obligation to protect fish
According to the Supreme Court, the Minister’s primary regulatory objective under the Fisheries Act is “the conservation of the resource” – i.e., fish. In line with this objective, while the Fisheries Act grants the Minister “absolute discretion” to issue licenses, the Fishery (General) Regulations stipulate that the Minister may only issue licenses to transfer fish that do not have a disease or disease agent that “may be harmful to the protection or conservation” of wild fish.
Two of Marine Harvest’s license conditions conflicted with the Regulations. One permitted Marine Harvest to transfer fish so long as they did not show signs of disease. As the Court found, a transferred fish that appears healthy could still have either a harmful disease or disease agent, in which case transferring it would contravene Regulations. This is particularly relevant to PRV infections; PRV does not present symptoms, so apparently healthy fish may be carriers of PRV and go on to develop HSMI.
A second condition allowed transfers from a facility where fish had a disease of “regional, national, or international concern” that could severely impact fisheries, so long as the facility’s veterinarian deemed the transfer “low risk.” Not only did this condition clearly contradict the Regulations, but it constituted an improper delegation of the Minister’s power to Marine Harvest. As the Supreme Court of Canada has held, the responsibility for conserving the resource under theFisheries Act is “placed squarely on the Minister”. Giving fish farms sole discretion to determine whether transferring potentially diseased fish could pose a risk to fisheries contradicted the requirement that transfers not harm the protection and conservation of fish.
The precautionary principle
Especially noteworthy is Justice Rennie’s finding that the portion of the regulations that describes when the Minister may issue licenses “embodies the precautionary principle.” A fundamental concept of modern environmental law, the precautionary principle recognizes the complexity of natural systems and the difficulty, if not the impossibility, of obtaining absolute proof of risk of environmental harms. It holds that where threats of serious or irreversible harm exist, a lack of complete scientific understanding cannot be used to justify not taking action.
As we have discussed before, the precautionary principle is recognized in some Canadian laws, such as the Canadian Environmental Protection Act, as well as international treaties; it also guided the Cohen Commission’s recommendations on how to respond to the risks salmon farms pose to wild salmon in the Fraser River. However, it is not mentioned in the Fisheries Act or the Fisheries (General) Regulations; rather, Justice Rennie invoked it when interpreting their provisions.
Pursuant to the precautionary principle, the Justice held that the Minister is not allowed to issue transfer licenses if the fish have any disease or disease agent that may be harmful to the protection or conservation of fish. The regulations are not concerned with certainties, but with possibilities. For a disease agent like PRV, where there is strong evidence (but no scientific consensus) that it is the cause of HSMI, the precautionary principle encourages erring on the side of caution and not allowing the transfer of fish to where the virus may be spread further.
Justice Binnie struck down the two transfer license conditions that were inconsistent with regulations guiding when a license can be granted, and suspended this judgement for four months. This judgement affects not only Marine Harvest’s license, but similar licenses granted to other fisheries across Canada – as many as 120 licenses, due to expire at the end of 2015, could be affected.
This case comes at a critical time for aquaculture in Canada. As we mention above, the federal government has exclusive control of aquaculture on the Pacific Coast. Last August, they proposed new aquaculture regulations that would drastically reduce the oversight they would have over pollution produced by aquaculture companies. Under the proposed regulations, fish farms would be able to dump a variety of potentially harmful substances, including pesticides and other drugs, into wild fish habitat without first obtaining a permit.
The permitting process serves an important purpose; it allows regulatory bodies to not only monitor and control what individual farms are putting into our water, but also to know how much the industry as a whole is dumping. It also serves as the mechanism for applying the precautionary principle; had Marine Harvest not needed a transfer license from the Minister, the Minister would not have been obligated to ensure that the fish transferred were healthy. Removing government oversight hinders our ability to protect wild fish in two ways: not only do we lose the necessary knowledge of what pollutants are entering our water, we lose some ability to force our government to take action.
By Adam Cembrowski, summer law student