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“DFO cannot rely on outdated consultation with First Nations which no longer reflects the current science.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.
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