Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General)

Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2012-05-03
Neutral citation
2012 FC 517
File numbers
T-70-11
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20120503
Docket: T-70-11
Citation: 2012 FC 517
Ottawa, Ontario, May 3, 2012
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
KWICKSUTAINEUK AH-KWA-MISH FIRST NATION
Applicant
and
ATTORNEY GENERAL OF CANADA, MINISTER OF FISHERIES AND OCEANS, MARINE HARVEST CANADA INC. AND EWOS CANADA LTD., DBA MAINSTREAM CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application for judicial review is a direct consequence of the decision reached by the British Columbia Supreme Court on February 9, 2009 in Morton v British Columbia (Agriculture and Lands), 2009 BCSC 136, 174 ACWS (3d) 103 [Morton], wherein it was held that the provincial regulatory regime for aquaculture was constitutionally invalid, and that the activity of finfish farming is a matter of exclusive federal jurisdiction. The Court struck down the provincial regulatory regime as ultra vires the provincial legislature but suspended its decision for 12 months. It was then extended to December 18, 2010 (Morton v British Columbia (Agriculture and Lands), 2010 BCSC 100, 2 BCLR (5th) 306), to allow the federal government time to consider and put into place federal regulatory legislation.
[2] That decision meant that approximately 680 BC provincial aquaculture licences would expire on December 18, 2010 and could not be renewed by the Province. In these circumstances, Canada had 22 months to consult on and implement an entirely new regulatory and licensing regime for aquaculture and take the steps necessary to make decisions on the issuance of federal aquaculture licences effective December 19, 2010.
[3] Following consultation regarding the new regulatory regime and the common terms and conditions that would apply to each new licence, the Department of Fisheries and Oceans’ (“DFO”) new regulations came into force on December 9, 2010 and most licences were issued effective December 19, 2010.
[4] Pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, the Kwicksutaineuk Ah-Kwa-Mish First Nation (the “KAFN” or the “Applicant”) has brought this application for judicial review of the decision of DFO to issue finfish aquaculture licences to the two corporate Respondents, Ewos Canada Ltd., dba Mainstream Canada (“Mainstream Canada”) and Marine Harvest Canada Inc. (“Marine Harvest”).
1. Facts
[5] This application relates to aquaculture in British Columbia, and in particular to salmon aquaculture. The term “aquaculture” refers to the aquatic form of agriculture where stocks are cared for, raised to marketable size, and then harvested for processing, sale and consumption. Finfish are a grouping of vertebrate species that have been successfully domesticated through aquaculture practice. Atlantic salmon are the predominant species grown by Canadian aquaculture.
[6] Salmon aquaculture is a significant contributor to the economy. Salmon farming generates over $50 million in wages annually. In 2007, for example, salmon farming contributed $370 million to the provincial economy (Thomson Affidavit, paras 9-16; Respondent’s Record, pp. 359-361).
[7] There appears to be some 28 fish farms in the Broughton Archipelago, which primarily cultivate Atlantic salmon. This Archipelago is located on the West coast of British Columbia, between Kingcome Inlet and Knight Inlet, at the southern extremity of Queen Charlotte Strait, on the South-Central coast of British Columbia, and covers an area of approximately 5,000 square kilometres.
[8] The Burdwood farm site is located in Raleigh Passage, off the Burdwood Group Islands. This operation has a tenure area of 34.33 hectares. The first aquaculture licence was issued by the Province on February 17, 1992. Burdwood was acquired by Mainstream Canada, along with several other sites, from Heritage Salmon Limited in July 2005. It continues to be a producing aquaculture site and, according to Mainstream Canada, is an integral site for its operations on the East coast of Vancouver Island. The Province had licensed this site for the production of Atlantic salmon to a total maximum production per cycle of 3000 metric tonnes and a maximum net cage area of 12,600 m2 (Thomson Affidavit, paras 111-112; Jensen Affidavit, paras 10, 17-22, 24 and 81, Ewos Canada Ltd.’s Record).
[9] The Blunden Pass site is located in Blunden Passage off Baker Island. The operation has a tenure area of 16.1 hectares. An aquaculture licence was first issued by the Province on or about February 24, 1993. It was licensed by the Province for the production of Atlantic salmon and black cod to a total maximum production per cycle of 1840 metric tonnes and a maximum net cage area of 7200 m2. It appears that this site has been fallow since 2003, but is a back-up site and is to be used in order to allow fallowing of other sites.
[10] The Applicant is an Aboriginal group, and an Indian Band within the meaning of the Indian Act, RSC 1985, c I-5, whose traditional territory is within the Broughton Archipelago near Johnstone Strait between mainland British Columbia and Vancouver Island. The KAFN is a member of the Musgamagw Tsawataineuk Tribal Council (“MTTC”), along with the following three First Nations: the Gwawaenuk Tribe, the Namgis First Nation and the Tsawataineuk.
[11] The KAFN has ten Indian reserves within the meaning of the Indian Act which are located within the Broughton Archipelago and which are associated with their traditional fishing stations. The KAFN claim that the marine waters within the Broughton Archipelago are their fishing grounds, and that the harvesting of seafood for food, social and ceremonial purposes in this area is integral to their distinctive culture as an Aboriginal group. Fishing has been the primary occupation of the members of the KAFN since time immemorial. Both before and after contact with Europeans, fishing has been the primary means of sustenance for the KAFN and also of great cultural importance, according to Chief Robert Chamberlin (Applicant’s Record, pp. 575-576, at paras 11-14).
[12] The KAFN claim that the abundance and quality of their fishery is in decline, and attribute the decline in part to the presence of salmon farms in their territory. This has been a recurrent theme in the consultation with various Aboriginal groups both by provincial and federal authorities since the introduction of farm fishing. It is argued that at least some of the fish farms, including the Burdwood site, are located on the juvenile out-migration routes of pink and coho salmon stocks traditionally harvested by the KAFN, and which are presently in a depressed state.
[13] The fish farms are floating nets that are secured to the sea floor in deep marine water by anchors and occupy the column of water above their anchors up to the surface of the water. These nets contain hundreds of thousands of fish which are raised from cultivated eggs in a hatchery and are then moved to the nets, where they remain until they are harvested.
[14] The scientific evidence with respect to the environmental and health hazards created by fish farms is obviously the subject of much debate. The Applicant, like many other Aboriginal groups and environmental non-governmental organizations, contend that a large number of Atlantic salmon harvested in these fish farms escape in the Broughton Archipelago and then compete with the wild salmon in the area for wild food. It is also argued that a large amount of waste and floating material generated by the antibiotics and other drugs that are fed to farm fish leave the nets and have a detrimental effect on the wild salmon. Some scientists are also of the view that aquaculture exacerbates the proliferation of sea lice, which threaten the wild salmon, and that the presence of fish farms interferes with the migratory routes of the wild salmon.
[15] From 1988 (the advent of aquaculture in BC) through February 2009, the Province was generally responsible for overseeing the aquaculture industry’s operations pursuant to provincial laws and regulations. Canada had a relatively limited role in regard to aquaculture. DFO, the lead federal agency for aquaculture, was responsible for administering, monitoring and enforcing compliance with federal laws and regulations relating to conservation and protection, environmental and habitat protection, and aquatic animal health. DFO conducted scientific research related to aquaculture policy and carried out initiatives to improve the business climate for aquaculture. Environment Canada, Transport Canada, Health Canada and the Canadian Food Inspection Agency were also involved in various aspects of the regulation of the industry. The respective responsibilities of the Province and Canada were addressed in a 1988 Memorandum of Understanding (Thomson Affidavit, paras 18-24; Respondent’s Record, pp. 361-363).
[16] As previously mentioned, the BC Supreme Court held in February 2009 that the regulation of aquaculture was within the federal government’s jurisdiction and, as a result, that the provincial regulatory regime was invalid. Following that decision, it was then left to the federal government to establish a new regulatory regime and take the steps necessary to make decisions on the issuance of federal aquaculture licences. The Province retained some authority in regard to the issuance of land tenures within provincial jurisdiction for the purposes of aquaculture, to set labour safety requirements and to take certain measures respecting business practices.
[17] Counsel for the Respondent DFO claimed that the impact of the Morton decision on DFO’s involvement with aquaculture was “monumental”, and there is no doubt that the development of a new regulatory regime required an extensive amount of work. Not only did it involve the drafting of new aquaculture regulations and three sets of new general aquaculture licence conditions for the main commercial aquaculture categories (marine finfish, shellfish and freshwater), but it also necessitated the negotiation of a new memorandum of understanding with the Province, the creation of an entire regulatory apparatus to administer the new regulations, and the issuance of approximately 680 aquaculture licences.
[18] Concurrently with the development of the new regulations, in 2009 through early 2010, DFO led an extensive consultation process, gathering input from governments and interested parties, including First Nations and other Aboriginal groups, regarding the future development of sustainable aquaculture. DFO held approximately 30 workshops across the country and consulted with over 500 representatives which led to the November 2010 Strategic Action Plan Initiative 2011-2015 Overarching Document and five strategic action plans including the 2011-2015 West Coast Marine Finfish Sector Strategic Action Plan.
[19] These various tasks clearly put DFO and, more generally, the federal government under enormous pressure. The issue to be decided, however, is whether the Crown fulfilled its duty to consult and, if necessary, the duty to accommodate as a result of the consultation undertaken by DFO with the affected First Nations. The following account of the consultation that took place from the beginning of 2009 until the issuance of the two impugned licences is based on the affidavits filed by Chief Robert Chamberlin, on behalf of the Applicant, and by Andrew Thomson, Director of the Aquaculture Management Division of the Pacific Region for DFO, on behalf of the Minister of Fisheries and Oceans.
[20] DFO’s first step in implementing the Morton decision was to draft new regulations under the federal Fisheries Act, RSC 1985, c F-14. These eventually became the Pacific Aquaculture Regulations, SOR/2010-270 [Regulations]. According to the Regulatory Impact Analysis Statement (RIAS) published in July 2010 (Thomson Affidavit, Exhibit “C”), meetings were held with all interested and affected parties in developing the new regulatory regime, including BC provincial and municipal governments, First Nations and other stakeholder groups including industry, environmental groups and the general public.
[21] On March 10, 2009, Chief Chamberlin wrote to Paul Sprout, Regional Director General of DFO, notifying DFO that the KAFN had Aboriginal fishing rights that would be impacted by the licensing of aquaculture sites in the Broughton Archipelago, and requesting consultation on that issue. On April 1, 2009, Mr. Sprout responded to Chief Chamberlin’s letter and explained that DFO was considering the implications of the Morton decision, that DFO recognized any regulatory transition would require consultation, and that it intended to engage in meaningful consultation with First Nations, industry and stakeholders during the transition. The letter specifically stated that DFO intended to provide the KAFN with the opportunity to discuss the management and regulation of aquaculture with DFO representatives.
[22] In order to facilitate consultation with a large number of First Nations, DFO contracted with both the Aboriginal Aquaculture Association and the First Nations Fisheries Council to host meetings with First Nation groups in BC. These meetings were intended to provide information and to elicit First Nations’ views on what elements a new regulatory regime for aquaculture should include. The Aboriginal Aquaculture Association was established in 2003 to assist, support and facilitate the meaningful participation of First Nations in sustainable aquaculture development. The First Nations Fisheries Council was appointed by the BC First Nations Leadership Council to address common fisheries issues, priorities and concerns.
[23] In April 2009, DFO entered into an Aboriginal Aquatic Resource and Oceans Management Program Collaborative Management Contribution Agreement with the Aboriginal Aquaculture Association, to support the carrying out of consultations with First Nations regarding aquaculture. DFO also entered into a similar agreement with the Fisheries Council to facilitate the engagement of Aboriginal groups in dialogue around the use of management of aquatic resources and ocean spaces, by way of capacity building and encouraging inter-community dialogue and collaboration. In total, DFO provided $2,143,830 of capacity funding for Aboriginal fisheries programs, including workshops, meetings and consultation on the Regulations.
[24] On May 14, 2009, DFO representatives met with the Fisheries Council to discuss the proposed approach for the initial consultation on the Regulations and the tight timelines. The Fisheries Council expressed an interest in contributing to the overall process, reviewing the materials for consultation and providing advice.
[25] On June 16 and 17, 2009, DFO hosted meetings in Vancouver and Campbell River to seek First Nations’ views on the Morton decision. They were looking to obtain advice pertaining to the development of specific consultation protocols and plans for addressing regulatory management proposals and to focus on the options for structuring the aquaculture management regime. Over 32 First Nations, Tribal Councils and First Nation organizations attended these meetings, including Chief Chamberlin and Sandy Johnson of the KAFN, and Brian Wadhams of the MTTC.
[26] On December 10 and 11, 2009, DFO met with BC First Nations and stakeholder groups in Campbell River, BC to gather their input and recommendations on the development of a new regulatory regime for finfish aquaculture. Chief Chamberlin attended both of these meetings. During the meeting, DFO explained the regulatory development process, the principles behind the Regulations, the scope of the Regulations, licensing and licence conditions, pollution measures, notification and reporting requirements, enforcement, inspections, audits and fees, and operational policies and guidelines.
[27] Additionally, DFO funded a workshop held on December 14, 2009 in Nanaimo by the Aboriginal Aquaculture Association to discuss, among other things, the development of the Regulations and to gather input with respect to sustainable aquaculture development. A second workshop was held at the same location on March 30, 2010 to discuss these issues. These workshops were attended by 25 First Nations and four First Nations organizations, and Chief Chamberlin attended both of these meetings.
[28] In February and March 2010, DFO funded the First Nations Fisheries Council to conduct a series of community meetings/dialogue sessions with First Nations, across British Columbia. The purpose of the meetings was to share information and to seek input and guidance from First Nations on the development of a new regulatory regime for aquaculture, on the basis of a Discussion Paper released in November 2009 by DFO, entitled Federal BC Aquaculture Regulation & Strategic Action Plan Initiative Discussion Document. Chief Chamberlin attended six of these meetings.
[29] The First Nations Fisheries Council produced a summary report of the March 2, 2010 meeting in Alert Bay. After stating that the Council is not a consultative body and does not act as a consultation body for DFO, and therefore that “…meetings with DFO did not in any legal way constitute consultation”, the Report states, among other things:
The attendees were unanimous that fish farms in their present form are not acceptable within the traditional territories of the First Nations in attendance, regardless of how they are managed. Closed containment fish farms are the only acceptable forms of finfish aquaculture in the First Nations’ territories of the Broughton Archipelago. Furthermore, it is disturbing that foreign companies are permitted to operate in First Nation territorial waters without First Nations consent. These are fundamental issues that need to be addressed before there can be meaningful involvement from First Nations in creating an aquaculture regulation. Yet DFO’s presentation was limited to the content of the regulation. Later discussion will be held with First Nations on the National Aquaculture Strategy Action Plan Initiative (NASAPI), but DFO’s unwillingness to discuss specific issues or how they will be managed on an ongoing basis creates an artificial separation. First Nations want to be involved in the creation of a new aquaculture regulation, but they are not fully confident that their concerns will be taken into account.
Record of the Respondent, Attorney General of Canada and Minister of Fisheries and Oceans, vol 3, Affidavit of Andrew Thomson, Exh. V, p 623
[30] The Report goes on to mention the short time frame set by DFO:
First Nations are not all fully knowledgeable about the subject or the issues. They need time to speak to others, to learn, to build capacity, etc. The timeline proposed by DFO feel [sic] rushed and will not permit First Nations to engage meaningfully. As First Nations have such a high interest in the outcome of the process, DFO should be held to addressing First Nations concerns adequately. In this regard, First Nations need to work together to assemble a set of expectations.
Ibid
[31] On May 26, 2010, a joint First Nations Fisheries Council/DFO working group was formed, to work on areas of joint interests regarding aquaculture. Andrew Thomson of DFO and Chief Chamberlin were co-chairs of the Aquaculture Working Group. The Working Group met on five occasions between June and December, 2010, to discuss DFO’s plans to develop and implement the new regulatory and licensing regime for aquaculture in BC.
[32] In addition to the foregoing consultations, DFO sent a letter to approximately 70 coastal First Nations on July 13, 2010, advising that the new draft aquaculture regulations had been published in the Canada Gazette Part I, and inviting comments during the 60-day public review period. This letter outlined, generally, DFO’s intended approach to regulating aquaculture. The letter also noted that for any new federal licences to be issued in December 2010, DFO did not intend to make changes to previous approvals, i.e., increases in production, size of existing facilities or permissible species. Rather, the letter noted, such changes would be individually reviewed in future years.
[33] DFO received direct responses to the July 13, 2010 letters from 12 Aboriginal groups representing 28 First Nations. In addition, DFO received over 900 email, letter and fax submissions during the 60-day comment period. From August through November 2010, the submissions were reviewed and necessary amendments were made. In his affidavit, Andrew Thomson claims that the comments and recommendations received, assisted in the refinement of a number of provisions of the Regulations. However, Chief Chamberlin states in his affidavit that none of the feedback offered by the KAFN was incorporated into the final text of the Regulations, as published on December 8, 2010 in Part II of the Canada Gazette.
[34] The main management tool under the new regulations is the issuance of licences dictating the conditions to which an operator must adhere. The licence conditions set out specific management requirements such as fish health management plans, escape prevention requirements, measures to minimize impacts on fish and fish habitat, and measures for environmental monitoring record keeping, notification and reporting.
[35] The DFO announcement that all expiring provincial aquaculture licences would be replaced with federal licences was unanimously opposed by the three principal First Nations organizations in British Columbia. On August 10, 2010, the First Nations Summit, the Union of BC Indian Chiefs and the BC Assembly of First Nations wrote a joint letter to the DFO Minister, expressing concern about the Department’s plan to roll over existing aquaculture licences. This letter also expressed the view that such a roll over without consultation and accommodation of the infringements caused by these licences “would be unconstitutional” (Applicant’s Record, vol II, Affidavit of Robert Chamberlin, p 632).
[36] On August 24, 2010, the KAFN responded to the DFO letter dated July 13, 2010, requesting a meeting to discuss the KAFN’s preliminary response to the draft Regulations and the accompanying RIAS. The meeting occurred in Nanaimo on September 2, 2010. During the meeting, Mr. Thomson informed Chief Chamberlin that DFO was planning to develop different classes of licences and conditions for aquaculture, and that it would be sharing the draft licences with First Nations as they became available. Chief Chamberlin expressed interest in reviewing the licences and participating in developing conditions, but did not raise any issues pertaining to the two facilities which are the subject of this application for judicial review.
[37] During that same meeting, Chief Chamberlin expressed interest in area-based planning for the Broughton area, and Mr. Thomson agreed to continue to engage the KAFN and MTTC on these issues. DFO also provided an update on its plans to develop Integrated Management of Aquaculture Plans (“IMAP”) for aquaculture in BC. This update explained that IMAPs will be the mechanism for setting, consulting on and generally communicating policy development and conditions for future licence issuance and will take a geographic, ecosystem-based approach to aquaculture management. DFO had not determined how it would define the management areas, although it anticipated that each area would likely incorporate the claimed traditional territories of multiple First Nations. Consultation would therefore be required on an aggregate basis and through multiple forums, with bilateral consultations on an as-requested and as-needed basis. At the meeting and in a follow-up letter, the KAFN expressly informed DFO of the potential for the issuance of aquaculture licences to impact its Aboriginal rights, and of the need for direct consultation in respect of any proposed licence replacements in the KAFN fishing grounds.
[38] On September 24, 2010, DFO responded to that letter requesting a further meeting with the KAFN to continue discussing the KAFN’s interests and concerns with DFO’s proposed regulatory regime for aquaculture. In particular, they were looking to discuss DFO’s proposed approach to licensing aquaculture facilities and the use of IMAPs. The letter did not address the KAFN’s request for consultation on specific licences in KAFN territory. The letter once again emphasized that the new federal licences would not involve increases in production or changes to the size of existing facilities or permissible species, and advised that DFO was in the process of developing licence conditions that would set out specific management requirements. Finally, the letter stated that examples of draft licences with applicable conditions were expected to be completed by mid-October, and that DFO would be interested in a follow-up meeting to hear the KAFN’s views on these conditions.
[39] On October 4, 2010, DFO wrote to BC First Nations to provide additional information on its plans to establish a new federal licensing regime. The letter explained that DFO was in the process of establishing the new Regulations and would ensure that any existing aquaculture operations are able to obtain a federal licence to operate lawfully under the Fisheries Act. It further explained that DFO’s intention with respect to the new licensing regime was to develop four classes of licence for marine finfish operations, freshwater finfish operations, shellfish operations, and enhancement facilities. This would allow for the setting of specific management requirements as conditions to the licence. The letter again reiterated that the new federal licences would not involve increases in production or changes to the size of existing facilities or permissible species.
[40] On October 21, 2010, DFO representatives again met with the KAFN and the KAFN provided an agenda to highlight the focus of this meeting. There was a general discussion on IMAPs, and DFO provided an update on the proposed Regulations and its plans for licensing existing facilities, including those in the Broughton Archipelago. With the exception of a request for maps of the licences in their traditional territories, there were no further discussions about licences following the update. The KAFN did not raise any concerns regarding specific farms, such as the Burdwood and Blunden Pass farms.
[41] The requested maps were provided to the KAFN on November 2, 2010. When asked for comments on the maps, counsel for the KAFN responded in an email dated November 9, 2010: “The maps look good, there is the matter of far field effects and to what extent that requires consultation on farms near, but outside the KAFN boundary. But I’ll give you a more formal response on that shortly” (Record of the Respondent, Attorney General of Canada and Minister of Fisheries and Oceans, vol 4, Affidavit of Andrew Thomson, p 1000). No further comments or requests were received from the KAFN until November 19, 2010. Moreover, the MTTC cancelled a meeting with DFO that was to be held on October 26, 2010. The meeting was tentatively rescheduled for the latter half of November, 2010. Despite three DFO requests for an agenda for the meeting, one was never provided by the MTTC.
[42] On October 27, 2010, DFO sent a letter to all BC First Nations, including the KAFN, enclosing three draft licence templates for the three main commercial aquaculture categories (marine finfish, shellfish and fresh water). The letter explained that the templates set out the generic contents of the licences that DFO intended to issue and included the full range of conditions that it foresaw being included in the actual licences. DFO’s intent was that the licences would include specific information to the individual operations, but that they would closely follow the template. The letter also asked for comments or questions on the draft licence templates by November 12, 2010. The deadline was subsequently extended to November 19, 2010, at the request of counsel for the Applicant.
[43] On November 19, 2010, counsel for the MTTC/KAFN submitted comments to DFO regarding the draft licences. The letter acknowledged from the outset that “the licence conditions set out in the draft template are nearly identical to the licence conditions under existing provincial regulation”. Counsel then stated her clients traditional concerns with salmon farms and aquaculture in general, in the following terms:
Our traditional territory in the Broughton Archipelago has had the highest concentration of salmon farms in the province for nearly two decades. For this entire period, we have engaged in consultations with the province about the licensing of salmon farms and their impacts on our Aboriginal right to the wild fishery. During this time, we have experienced significant sea lice infestations in our territory, several disease outbreaks, numerous escapes of exotic Atlantic salmon into our wild salmon habitat areas, visible pollution of our shellfish food beaches, and an overall decline of our local wild salmon, herring, eulachon and ground fish stocks. We have very serious concerns about the heavy use and buildup of pesticides, disease antibiotics and antifoulants in our marine ecosystem – the system that has been the primary source of our food since time immemorial. The use of night lights and net pen by-catch are also areas of significant concern for us as a cause of depletion of our wild fishery. To date, these problems and concerns have not been resolved, and we do not see any progress in DFO’s adoption of the previous provincial regime.
Applicant’s Record, vol II, Affidavit of Robert Chamberlin, p 649
[44] Instead of spending time and resources on a detailed technical review of a draft template of generic licence conditions, which raised questions they felt they were not well-positioned to answer, counsel indicated for the first time that they wished to turn their focus to consultations on concerns with impacts and risks of the specific finfish licences in their traditional territory. In their view, the draft licence template conditions did not address their concerns.
[45] In that same letter, the MTTC/KAFN also stated for the first time, a position that system-wide matters in regard to all the salmon farms in the Broughton Archipelago had to be addressed prior to issuance of federal licences:
In a letter to you dated September 8, 2010, one of our member nations emphasized its strong interest in engaging in a Broughton Archipelago area based management plan. This is an approach that will allow us to exchange basic and fundamental information such as how many farms are operating in our collective territory and at what volumes and production cycles, whether there will be a fallow strategy to accommodate the outgoing migration of our local wild stocks, and whether there are any adequate processes in place to assess the cumulative effects of a large number of farms in the Broughton Archipelago ecosystem. In our view, these are fundamental concepts that must be addressed prior to DFO’s issuance of aquaculture licences in our territory, and prior to detailed discussions on licence conditions.
Applicant’s Record, vol II, Affidavit of Robert Chamberlin, p 649
[46] On the face of it, this new position taken by the MTTC/KAFN would have required the completion of a multilateral consultation with all interested First Nations in the Broughton Archipelago ecosystem, in regard to an area management plan for the Broughton Archipelago. Finalization of that plan (including any necessary fallowing strategy for the entire region) prior to issuance of licences effective December 19, 2010, would also be required.
[47] In response to a request by the MTTC/KAFN in their letter dated November 19, 2010, a meeting was held on December 10, 2010. What was said at that meeting is not entirely clear, as it was not explicitly recorded. It appears that the MTTC/KAFN somewhat altered its position. They did not ask that DFO complete consultations and institute an area management plan and a fallowing strategy for the Broughton Archipelago region, over the eight days before expiry of the provincial licences. Instead, the MTTC/KAFN acknowledged it was reasonable in the circumstances that consultations on the salmon farms in the Broughton Archipelago region, and their impacts on the MTTC/KAFN’s asserted Aboriginal rights, would have to continue over a transitional period after issuance of the federal licences. During the one year transitional period, consultations on an area-based management approach, as well as on non-regional site-specific matters raised, would be ongoing.
[48] Chief Chamberlin recognized further that a regulatory vacuum for farms stocked with fish was undesirable, and acknowledged that the expiration of provincial licences was imminent. The MTTC/KAFN requested that no licences be issued for the following selection of salmon farms:
a) the farms that were not currently stocked with fish, as there was no immediate need for DFO to authorize dormant fish farms to operate (one of which is the Blunden site);
b) the two farms – Upper Retreat and Blunden Pass – which are in shallow areas and have soft bottoms that in the past have caused a build-up of deleterious substances harmful to fish habitat, and which are near clam beaches and crab areas that have had a significant increase in sediment pollution; and
c) the six key farms in MTTC territory – Burdwood, Sargent’s Pass, Humphrey Rock, Glacier Falls, Cliff Bay and Sir Edmund – which are on the primary migratory route of juvenile salmon stocks that are presently in significant distress (alternatively, the KAFN requested that these farms be phased out as soon as practicable).
[49] This was the first time over the course of the consultations that the MTTC/KAFN had communicated to DFO, site-specific concerns and requests for changes relating to specific farms (such as the Burdwood and Blunden Pass farms, which are the subject of this application). In the follow-up letter to that meeting dated December 17, 2010, counsel for the MTTC/KAFN stated that they “hope to see their interim input reflected in those [licensing] decisions, [for the selection of sites identified at the meeting]” and that they “look forward to ongoing dialogue in the new year”. They requested that DFO provide written notice of the licensing decisions for those sites at its earliest convenience. Accordingly, one of the DFO officials who attended the December 10, 2010 meeting provided the MTTC/KAFN input to Mr. Thomson on Monday, December 13, 2010.
[50] In making his decision on behalf of the DFO, Mr Thomson stated in his affidavit that he had knowledge of and did consider the following information:
i) the information contained in the provincial licences;
ii) all information provided by First Nations during the course of DFO’s consultations, and through correspondence with those First Nations;
iii) information from the licence applicants/proponents as put forward in their applications;
iv) scientific information pertaining to aquaculture environmental impacts, including that prepared by DFO, and various peer-reviewed research articles in scientific journals;
v) knowledge of finfish aquaculture generally, acquired during the course of his education and professional experience;
vi) knowledge that there were no changes to the existing operations (e.g. increases in production, change of species) allowed in the federal licences;
vii) knowledge that the federal licences were of limited duration (in the case of finfish licences – 12 months) which would allow for a careful review of the licences and conditions and provide an opportunity to make any necessary changes to individual licence conditions during this period; and
viii) knowledge of the measures, described in his affidavit, that address fish health and environmental concerns such as those expressed by the KAFN.
Respondent Record of the Attorney General of Canada and Minister of Fisheries and Oceans, Vol 2, Affidavit of Andrew Thomson, para 135
[51] On December 18, 2010, DFO issued approximately 680 aquaculture licences for finfish, shellfish, freshwater and enhancement operations, including the 22 licences in the Broughton Planning Area (17 of which, according to the Applicant, are within KAFN territory). Since the issuance of the Regulations and of the licences, there is evidence that DFO has been consulting with First Nations regarding the development of IMAPs. These IMAPs are intended to take a geographic, ecosystem approach to aquaculture management and will be the mechanism for setting, consulting on and generally communicating policy development and conditions for the issuance of future licences.
[52] Prior to the hearing of this application, counsel for the Respondent Attorney General of Canada, brought a motion to strike the affidavit of Michael Price, submitted on behalf of the Applicant, on the grounds that it is inadmissible as expert evidence and not in compliance with Rule 52.2 of the Federal Courts Rules, SOR/98-106 and the Code of Conduct for Expert Witnesses, as set out in the schedule to the Rules. Ewos Canada Ltd., doing business as Mainstream Canada, also brought a similar motion, not only to strike the affidavit of Michael Price but also to strike out some paragraphs of the affidavit sworn on behalf of the Applicant by Robert Mountain, Local Fisheries Outreach Coordinator for the MTTC. In a letter dated October 19, 2011, Marine Harvest voiced its support for these motions. They were heard at the beginning of the hearing on November 7, 2011, and I indicated that I would rule on them as part of my decision on the merit.
2. Issues
[53] This application for judicial review raises the following issues:
1) Does the KAFN have the requisite standing to bring this application for judicial review?
2) Did Canada, as represented by DFO, have a duty to consult with the KAFN about the issuance of the aquaculture licences, and more specifically the Burdwood and Blunden licences? If so, what was the extent of the Crown’s duty?
3) Were DFO’s efforts at consultation reasonable under the circumstances?
[54] Before dealing with these issues, however, I will first address the two motions to strike brought by the Respondents.
3. Analysis
- The Motions to Strike
[55] As previously mentioned, counsel for the Attorney General of Canada filed an objection to the admissibility of the Expert Affidavit of Michael Price and brought a motion to have it struck in its entirety. Counsel submitted that the affidavit is deficient in a number of areas as it failed to set out: 1) the proposed expert evidence of Mr. Price and merely sets out the conclusions; 2) Mr. Price’s qualifications in relation to the issues addressed in his evidence; and 3) the particulars of matters that might affect Mr. Price’s duty to the Court.
[56] Counsel for Mainstream Canada filed a similar objection and also brought a motion to strike, on the same grounds as the Attorney General, as well as on the grounds that Mr. Price is not an independent and impartial expert witness as he has been a critic of aquaculture.
[57] The Applicant asserts Aboriginal rights to harvest marine resources within its claimed traditional territory in the Broughton Archipelago. The Applicant claims that the two farms are in its traditional territory and interfere with its Aboriginal rights through pollution of the marine environment and the transmission of parasites and diseases from farmed to wild salmon.
[58] In support of its claim that fish farming is detrimental to the health and environment of the First Nations living in the claimed territory, the Applicant has filed the affidavit of Mr. Michael Price, an MSc candidate in b