A Mowi Canada West fish farm off the B.C. coast. (Mowi Canada West)

A Mowi Canada West fish farm off the B.C. coast. (Mowi Canada West)

Court grants ‘Namgis appeal on fish farm transfer licence

Science on impacts of farmed salmon on wild salmon evolving; DFO must keep up judge says

Canada’s Federal Court of Appeal has decided in favour of ‘Namgis First Nation’s allegation that Fisheries and Oceans should have consulted them before issuing a salmon farm transfer licence to Mowi in 2018.

The fish being transferred to Mowi’s Swanson Island farm, just east of Alert Bay and within the ‘Namgis territoru, have long since been harvested, but the court process continues to parse out what the Crown’s duty to consult with First Nations looks like.

Concern about the adverse impacts on wild fish from piscine orthoreovirus (PRV), a highly contagious virus found in farmed Atlantic salmon which can cause heart and skeletal muscle inflammation (HSMI), is at the heart of the dispute.

Fisheries and Oceans (DFO) policy does not require fish farmers to test for PRV before transferring between pens (fish are moved to different pens as they grow).

The appeal is the result of a string of litigation. The ‘Namgis First Nation applied for a judicial review of both the DFO’s guiding PRV policy and the Swanson Island transfer licence, on the grounds that evolving science about PRV impacts on wild salmon had not been considered.

They won on the policy, but lost on the licence. ‘Namgis appealed, arguing that the transfer licence is an extension of the policy. If the court found the PRV policy wanting, it should follow that the transfer licence issued under the policy is also insufficient.

This July, federal court of appeal Judge J.D. Denis Pelletier agreed, writing that, “when the court found that there had been a breach of the duty to consult about the PRV policy, it should also have found that there was a breach of the duty to consult with respect to the licence. It would offend common sense to hold otherwise.”

The two key legal foundations for Pelletier’s decision was that the science understanding “the risk [PRV and HSMI] pose to wild (as opposed to farmed) salmon is evolving,” and therefore a novel duty to consult can be triggered even when guiding policy has already been consulted on.

No remediation was ordered, but costs shall be covered.

Sean Jones, the lawyer who represented ‘Namgis in the appeal said this decision means the DFO must ensure that it has adequately consulted with First Nations before it allows fish farms to restock their farms.

“DFO cannot rely on outdated consultation with First Nations which no longer reflects the current science. [The] DFO must keep up with the evolving science, which increasingly shows fish farms spread harmful viruses to wild salmon. It must consult with First Nations about that harm to their rights. It can’t ignore the science; it can’t ignore First Nations’ concerns,” Jones said.

For their part, Mowi interpreted the decision to mean that where consultation with First Nations has been “adequately at a policy (or higher) level there’s no need to consult on a day-to-day operational level.”

The statement added that Mowi fish are raised in local hatcheries, and only go into water pens if they’re healthy. “The bulk of credible science done on PRV since it was discovered a decade ago strongly indicates the strain of the virus found in BC is native to our waters, and does not make fish sick,” Mowi wrote.

The DFO said it is reviewing the decision, and has no comment at this time.

RELATED: ‘Namgis to proceed with judicial review amid restocking

RELATED: Ottawa won’t appeal Federal Court ruling on farmed salmon virus

RELATED: Farmed Atlantic salmon in B.C. unaffected by virus, DFO researchers find

Do you have something to add to this story or something else we should report on? Email: zoe.ducklow@blackpress.ca


Like us on Facebook and follow us on Twitter.

DFOFish FarmsIndigenous

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

RCMP on scene yesterday at the altercation at the trailer park. (Submitted photo)
Violent altercation at Port Hardy trailer park

The suspect has been remanded in custody until their next court appearance on April 19.

Facebook screenshot of the sea lion on Holberg Road. (Greg Clarke Facebook video)
VIDEO: Sea lion spotted in bizarre area of remote Holberg Road

Greg Clarke was driving home on the Holberg Road Monday, April 12, when he saw a large sea lion.

Port Hardy Minor Hockey logo
Port Hardy Minor Hockey hands out year-end awards

The ‘Outstanding Parent Volunteer Award’ went to Kimberly Hunt and Blair Isaac.

Melissa Milligan is working to build a disc golf course in Port Hardy. (Submitted photo)
Port Hardy’s disc golf survey results are in

138 people in total took the survey, with 94 per cent voting yes.

RCMP display some of the fish seized from three suspects who pleaded guilty to violating the Fisheries Act in 2019, in this undated handout photo. THE CANADIAN PRESS/HO - RCMP
3 banned from fishing, holding licences after overfishing violations in Gold River area

Mounties seized the group’s 30-foot fishing vessel and all equipment on board at the time

A person receives a COVID-19 vaccine at a vaccination clinic run by Vancouver Coastal Health, in Richmond, B.C., Saturday, April 10, 2021. THE CANADIAN PRESS
B.C. sees 873 more COVID-19 cases Tuesday, decline continues

Hospitalizations up to 377, two more deaths for 1,515 total

B.C. Premier John Horgan speaks at the B.C. legislature. (B.C. government)
Tougher COVID-19 restrictions in B.C., including travel, still ‘on the table’: Horgan

John Horgan says travel restrictions will be discussed Wednesday by the provincial cabinet

John Albert Buchanan was found guilty of manslaughter in the 2017 death of Richard Sitar. Pictured here, Buchanan walking to the court in Nanaimo last year. (Karl Yu/News Bulletin)
Six years including time served for Nanaimo man in bludgeoning death

John Albert Buchanan sentenced in B.C. Supreme Court in Nanaimo for death of Richard Sitar

Protesters occupied a road leading to Fairy Creek Watershed near Port Renfrew. (Submitted photo)
B.C. First Nation says logging activist interference not welcome at Fairy Creek

Vancouver Island’s Pacheedaht concerned about increasing polarization over forestry activities

Flow Academy is not accepting membership applications from anybody who has received a dose of the vaccine, according to a password-protected membership application form. (Submitted image)
B.C. martial arts gym refusing patrons who have been vaccinated, wear masks

Interior Health has already issued a ticket to Flow Academy for non-compliance with public health orders

Guinevere, lovingly referred to by Jackee Sullivan and her family as Gwenny, is in need of a gynecological surgery. The family is raising money to help offset the cost of the procedure. (Jackee Sullivan/Special to Langley Advance Times)
Langley lizard’s owners raise funds for gynecological surgery

The young reptile is scheduled for operation on Tuesday

Defence counsel for the accused entered two not guilty pleas by phone to Grand Forks Provincial Court Tuesday, Jan. 12. File photo
B.C. seafood company owner fined $25K for eating receipt, obstructing DFO inspection

Richmond company Tenshi Seafood is facing $75,000 in fines as decided March 4 by a provincial court judge

B.C. Finance Minister Selina Robinson speaks in the B.C. legislature, March 2, 2021. (Hansard TV)
B.C. NDP ministers defend ‘air tax,’ latest COVID-19 business aid

Empty home tax doesn’t apply to businesses, but space above them

In Ontario, COVID-19 vaccine clinics have been set up at local mosques. (Submitted photo: Rufaida Mohammed)
Getting the vaccine does not break your fast, says Muslim COVID-19 task force

Muslim community ‘strongly’ encouraging people to get their shot, whether or not during Ramadan

Most Read