Morton v. Canada (Fisheries and Oceans)

Morton v. Canada (Fisheries and Oceans)
Court (s) Database
Federal Court Decisions
Date
2019-02-04
Neutral citation
2019 FC 143
File numbers
T-1710-16, T-430-18, T-744-18
Notes
Reported Decision
Decision Content
Date: 20190204
Dockets: T-1710-16
T-430-18
T-744-18
Citation: 2019 FC 143
Ottawa, Ontario, February 4, 2019
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
ALEXANDRA MORTON
Applicant
And
MINISTER OF FISHERIES & OCEANS, MARINE HARVEST CANADA INC. AND CERMAQ CANADA LTD.
Respondents
Docket T-430-18
AND BETWEEN:
'NAMGIS FIRST NATION
Applicant
And
MINISTER OF FISHERIES, OCEANS AND
THE CANADIAN COAST GUARD, MARINE HARVEST CANADA INC. AND CERMAQ CANADA LTD.
Respondents
Docket T-744-18
AND BETWEEN:
'NAMGIS FIRST NATION
Applicant
And
MINISTER OF FISHERIES, OCEANS AND THE CANADIAN COAST GUARD, MARINE HARVEST INC.
Respondents
JUDGMENT AND REASONS
TABLE OF CONTENTS
Contents
I. INTRODUCTION 4
II. THE PARTIES 5
A. Ms. Morton 5
B. ‘Namgis 6
C. Minister 7
D. Marine Harvest Canada Inc. 8
E. Cermaq Canada Inc. 8
III. BACKGROUND 8
A. Legislation 8
i) Fisheries Act 8
ii) Fishery (General) Regulations 9
iii) Pacific Aquaculture Regulations 10
B. Morton 2009 10
C. Fish Farm Production Cycle 11
D. PRV and HSMI 12
E. Morton 2015 14
F. Transfer licensing post-Morton 2015 19
IV. THE PRV POLICY 20
A. Previous Decisions 20
i) June – July 2015 Decision 21
ii) September 2015 Decision 21
iii) June 2016 Decision 21
iv) January 30, 2017 Decision 22
v) March 9, 2018 Decision 22
vi) June 28, 2018 Decision 23
B. Decision Under Review 24
i) 2015 CSAS Science Response 25
ii) January 30, 2017 RDG Memorandum 27
iii) March 2018 Rapid Science Response 30
iv) June 2018 Rapid Science Response 36
V. ‘NAMGIS’ MOTION FOR AN INJUNCTION (T-430-18) 41
VI. ISSUES 42
VII. ANALYSIS 43
A. Issue 1: Is the PRV Policy Decision Reasonable (T-1710-16 and T-430-18)? 43
i) Preliminary Issue – Rule 312 Motions (T-1710-16) 43
ii) Standard of Review 60
iii) Was the Minister’s Interpretation of s 56 of the FGRs reasonable? 62
iv) Did the Minister derogate from the precautionary principle? 76
v) Did the Minister fail to consider the health of wild salmon? 87
vi) Did the Minister act in bad faith (T-430-18)? 108
B. Issue 2: Did the Minister breach the duty to consult with ‘Namgis concerning the PRV Policy Decision (T-430-18)? 138
i) Summary of Parties’ Positions 138
ii) Standard of Review 139
iii) Jurisprudence 140
iv) Prior Consultation by DFO 146
v) Analysis 156
C. Issue 3: Was the decision to issue the Marine Harvest transfer licence reasonable (T-744-18)? 169
i) Did the Minister breach the duty to consult? 170
ii) Was the Swanson Island Transfer Licence issued in contravention of s 56 of the FGRs? 171
iii) Did the Minister breach the duty of procedural fairness? 171
iv) Minister’s Motion to Strike the Notice of Application 177
v) Marine Harvest’s Motion to strike Drastil Affidavit #2 180
D. Issue 4: Remedies 181
i) T-1710-18 181
ii) T-430-18 183
iii) T-744-18 185
E. Issue 5: Costs 191
i) T-1710-16 191
ii) T-430-18 and T-744-18 193
I. INTRODUCTION
[1] The Fishery (General) Regulations, SOR/93-53 (“FGRs”), made pursuant to the Fisheries Act, RSC 1985, c14 (“Fisheries Act” or “Act”), form part of Canada’s fisheries management regime. The FGRs require the Minister of Fisheries (“Minister”) to issue a licence before live fish can be transferred into any fish habitat or fish rearing facility. The Minister may only issue such a licence if the conditions set out in s 56 of the FGRs are met. These three applications for judicial review all concern challenges to the Minister’s policy of issuing licences for transfers of live salmon into the marine environment without requiring screening for certain disease causing pathogens and diseases that affect salmon. Specifically, the Department of Fisheries and Oceans (“DFO”) has a policy of not testing for Piscine Orthoreovirus (“PRV”) or Heart and Skeletal Muscle Inflammation (“HSMI”) disease prior to issuing licences for the transfer of juvenile salmon from land based hatcheries into marine open-net pens as part of aquaculture operations, or as releases made as part of wild salmon enhancement programs (“PRV Policy” or “Policy”). DFO has reconsidered, but maintained, the PRV Policy on several occasions. The most recent reconsideration on July 28, 2018 is the decision under review in these matters (“PRV Policy Decision”).
[2] Alexandra Morton (“Ms. Morton”), the Applicant in T-1710-16, and ‘Namgis First Nation (“‘Namgis”), the Applicant in T-430-18, both challenge the reasonableness of the PRV Policy Decision. ‘Namgis additionally claims that the Minister breached the duty to consult with ‘Namgis concerning the Policy. ‘Namgis has also brought a second application for judicial review, T-744-18, in which it seeks to quash a specific transfer licence issued by DFO to a salmon farm operator, Marine Harvest Canada Inc. (“Marine Harvest”), on the basis that the licence was issued in contravention of s 56 of the FGRs, the decision to issue it was unreasonable, the Minister breached the duty to consult with ‘Namgis prior to issuance of that licence, and that the Minister breached the duty of procedural fairness owed to ‘Namgis.
[3] The three applications for judicial review were heard consecutively over five days in Vancouver, British Columbia (or “BC”). In addition, there were ten motions filed in the within applications that the Case Management Judge Prothonotary Aylen determined were to be dealt with by the Applications Judge.
[4] Given the overlap of the facts and issues, I have addressed the three applications together in these reasons and have dealt with the various motions in the context of the application and subject matter within which each arises.
II. THE PARTIES
A. Ms. Morton
[5] Ms. Morton is a biologist who, since 1984, has lived and worked in the Broughton Archipelago, which is located in the Queen Charlotte Strait between Vancouver Island and the mainland of British Columbia. This area has a high density of open-net aquaculture sites, or fish farms. Ms. Morton holds a long-standing concern with the potential impact of salmon farming on the marine ecosystem of coastal British Columbia, in particular, with the effect of aquaculture on the health of wild salmon. Ms. Morton is an advocate in this regard. She has previously been granted public interest standing in Morton v British Columbia (Agriculture and Lands), 2009 BCSC 136 (“Morton 2009”), which included a successful challenge of the provincial regulation of salmon farming in British Columbia. She was also granted standing, jointly with the Raincoast Research Society and the Pacific Wild Coast Salmon Society, in the Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, the results of which are published in Canada, Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, The Uncertain Future of Fraser River Sockeye (Ottawa: Public Works and Government Services Canada, 2012) (“Cohen Commission”), on the basis of a substantial and direct interest in the question of whether aquaculture is a cause of the decline of the Fraser River sockeye salmon, and the policies and procedures of DFO as they relate to aquaculture.
[6] Additionally, Ms. Morton was the applicant in Morton v Canada (Fisheries and Oceans), 2015 FC 575 (“Morton 2015”). While that decision is highly relevant to the current applications, it is sufficient to note here that Ms. Morton successfully challenged certain conditions of an aquaculture licence granted to Marine Harvest concerning the transfer of farmed fish. In Morton 2015, Justice Rennie noted that Ms. Morton brought that proceeding in the public interest and that her standing was not contested. Similarly, Ms. Morton’s standing is not contested in her application for judicial review brought in T-1710-16.
B. ‘Namgis
[7] ‘Namgis is a band under the Indian Act, RSC 1985, c I-5, and its members are “aboriginal People of Canada” within the meaning of s 35 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 (“Constitution Act, 1982”).
[8] Don Svanvik, the elected Chief Councillor of ‘Namgis (“Chief Svanvik”), provided an affidavit affirmed on March 7, 2018 (“Svanvik Affidavit”), which was filed in both T-430-18 and T-744-18. The Svanvik Affidavit describes, amongst other things, ‘Namgis’ history, culture and assertions of its Aboriginal rights and title.
[9] ‘Namgis claims that its traditional territory includes the Nimpkish and Kokish river watersheds on northern Vancouver Island in their entirety, as well as adjacent marine areas in and around Malcolm Island, Cormorant Island, Swanson Island, Hanson Island, Foster Island and the Plumber and Pearce Island Groups, its asserted territory. It considers the Nimpkish River on Vancouver Island to be situated within the core of its territory and to be of tremendous importance to the community.
[10] ‘Namgis asserts Aboriginal rights and title throughout its asserted territory, including title to the lands, water, air, marine foreshore and seabed, as well as rights to fishing, hunting, gathering and stewardship. In particular, it asserts that wild Pacific salmon, including sockeye, chum, pink, Chinook and coho, are an integral aspect of ‘Namgis’ oral history and traditions, way of life, economy, culture, ceremonies, food and trade. Further, that wild Pacific salmon populations have significantly declined in ‘Namgis’ asserted territory.
C. Minister
[11] The Minister is responsible for the administration of the Fisheries Act. And, pursuant to that Act, the Minister has broad discretion to authorize and issue fishing licences, including aquaculture licences and fish transfer licences.
D. Marine Harvest Canada Inc.
[12] Marine Harvest is engaged in the business of fish farming. It is one of four main salmon farming companies in British Columbia. As of November, 2017, it held 56 of the 119 aquaculture licences issued by DFO authorizing the operation of an aquaculture facility in that province. All of Marine Harvest’s facilities are licenced to raise Atlantic salmon. Marine Harvest has twelve fish farms in the Broughton Archipelago area, including the site known as the Swanson Island facility.
E. Cermaq Canada Inc.
[13] Cermaq describes itself as the second largest salmon aquaculture producer in British Columbia, making up approximately 25% of the salmon aquaculture industry. It has 28 fish‑farming sites in British Columbia and approximately 20 operating fish farms. Each site holds a marine finfish aquaculture licence issued by DFO and permitting Cermaq to carry out aquaculture activities. Cermaq, together with Marine Harvest, make up approximately 82% of the British Columbia salmon aquaculture industry.
III. BACKGROUND
A. Legislation
Fisheries Act
[14] The Fisheries Act governs fisheries in Canada. Section 7 of the Fisheries Act gives the Minister broad discretion to issue fishing licences, including aquaculture licences:
7(1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.
Fishery (General) Regulations
[15] The FGRs establish a general operational framework for fisheries management. This includes the implementation of any licence conditions necessary for the proper management and control of fisheries, and the conservation and protection of fish, that are not inconsistent with the FRGs or other specified regulations, as set out in s 22(1) of the FGRs.
[16] Part VIII of the FGRs governs the release of live fish into fish habitats or fish rearing facilities. Such transfers are prohibited without a licence:
54 In this part, licence means a licence to release live fish into fish habitat or to transfer live fish to a fish rearing facility.
55 (1) Subject to subsection (2), no person shall, unless authorized to do so under a licence,
(a) release live fish into any fish habitat; or
(b) transfer any live fish to any fish rearing facility.
(2) Subsection (1) does not apply in respect of fish that is immediately returned to the waters in which it was caught.
[17] Pursuant to s 56, the Minister may issue a licence if three specified conditions are met:
56 The Minister may issue a licence if
(a) the release or transfer of the fish would be in keeping with the proper management and control of fisheries;
(b) the fish do not have any disease or disease agent that may be harmful to the protection and conservation of fish; and
(c) the release or transfer of the fish will not have an adverse effect on the stock size of fish or the genetic characteristics of fish or fish stocks.
[18] Central to the applications before me is the question of whether the Minister’s interpretation of s 56 is reasonable.
Pacific Aquaculture Regulations
[19] Pursuant to s 3(1) of the Pacific Aquaculture Regulations, SOR/2010-270 (“PARs”), the Minister may issue an aquaculture licence authorizing a person to engage in aquaculture and other prescribed activities. Such activities are prohibited unless authorized by licence. And, for the proper management and control of fisheries and the conservation and protection of fish, the Minister, in addition to the conditions respecting the matters set out in s 22(1) of the FGRs, may specify conditions in an aquaculture licence as set out in s 4 of the PARs.
B. Morton 2009
[20] In Morton 2009, the British Columbia Supreme Court held that fish farming in British Columbia is a fishery that falls under exclusive federal jurisdiction pursuant to s 91(12) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5. As a result of that decision, and as discussed further below, in 2010 DFO assumed regulatory control over the management of aquaculture.
C. Fish Farm Production Cycle
[21] Farmed salmon start life in hatcheries. Eggs and milt are collected from adult broodstock salmon. The fertilized eggs are incubated for 7 to 8 weeks in freshwater land-based hatcheries. Upon hatching, the fish are called alevin. Once their yolk sacs are absorbed, they are referred to as fry and, for the next year, they are raised in tanks within the hatchery. Once the young salmon are ready to enter salt water, they are referred to as smolts.
[22] Prior to transferring smolts from a freshwater hatchery to a marine (ocean) fish-farm site, the holder of the relevant aquaculture licence must apply for and be granted a transfer licence issued in accordance with s 56 of the FGRs. The most common type of fish farms in British Columbia are open-net farms in which the fish are contained in a net or cage suspended in the ocean and through which ocean water passes freely.
[23] The smolts remain in the marine fish farms until they are ready to be harvested, approximately 2 years for Atlantic salmon and 18 months for Chinook salmon.
[24] The number of salmon grown at such a farm during a typical production cycle can range from 200,000 to 650,000 fish. There are currently 116 licenced marine finfish farms in British Columbia, of which 80 are active, meaning that at any given time there are between 16 and 52 million farmed fish in BC waters. There are four main salmon farming companies including Marine Harvest and Cermaq. Atlantic salmon is the main species of farmed salmon produced in BC, with a smaller number of farm-grown Chinook salmon. There are currently 28 land-based licenced hatcheries.
[25] The transfer of smolts occurs not only in aquaculture, but also in the context of salmon enhancement. In salmon enhancement, fish are raised in land-based hatcheries until the smolt stage and are then released into the natural marine environment to mature, at which point they become part of the wild salmon population.
[26] The Salmon Enhancement Program (“SEP”) is licensed by DFO. There are currently 132 SEP licences to grow Pacific salmon for release, 18 are DFO operated hatcheries, 99 are community hatcheries and 15 are classroom facilities.
D. PRV and HSMI
[27] As will be discussed below, PRV and HSMI are very topical issues that are the subject of a growing body of rapidly evolving scientific inquiry. What is not controversial is that PRV is a highly infectious virus. It was first recognized in Norway in 2010 and is now known to be present in Norway, the United Kingdom, Ireland, Chile, the United States and Canada. It was first detected on the west coast of North America in farmed Atlantic salmon through audit samples that were conducted in 2010. While some scientists believe that PRV in British Columbia first diverged from the Norwegian strain of PRV (“Norweigan-PRV”) in about 2007, DFO’s current view is that recent testing of tissue samples archived from 1987 to 1994 indicates that a North Pacific variant of PRV (“BC-PRV”) has been present in salmonids on the Pacific coast of North America for a much longer time. PRV is now found in both farmed and wild salmon in British Columbia as well as other species of fish.
[28] HSMI is an infectious disease. According to DFO, it was described for the first time in farmed Atlantic salmon in 1999 in Norway, where it has emerged as a production concern for Norwegian salmon aquaculture. In Norway, HSMI is currently among the top four most common salmonid aquaculture diseases, the number of outbreaks occurring each year increasing from 54 to 142 between 2004 and 2012.
[29] In Norway, HSMI is characterized by mortality that ranges from negligible up to 20% and morbidity as high as 100% within affected populations. In Norwegian fish farms, clinical signs of HSMI usually occur 5–9 months after sea transfer and include abnormal swimming behaviour, loss of appetite or anorexia, and loss of condition. HSMI has now been reported in farmed Atlantic salmon in Scotland, Chile and Norway. In 2017, it was also confirmed in one Atlantic salmon farm in British Columbia by a study of tissue samples that were collected in 2013–2014.
[30] More controversial is the link between PRV, HSMI, and other diseases. In 2017, a Norwegian study found PRV to be the cause of HSMI in Atlantic salmon. However, in Canada, a PRV challenge study conducted in 2016 concluded that the BC-PRV strain, while transmissible or infectious, was of low pathogenicity to Chinook, sockeye and Atlantic salmon. That is, while experimentally infected fish may carry large BC-PRV virus loads, the virus does not cause disease or mortality in those species. No other disease agent has been identified as the cause of HSMI in British Columbia. PRV has also been associated with other diseases, including jaundice.
[31] The heart of Ms. Morton’s and ‘Namgis’ applications are that the DFO’s policy of not testing for PRV puts wild Pacific salmon at risk.
E. Morton 2015
[32] Ms. Morton, in Morton 2015, raised the question of whether certain licence conditions contained in an aquaculture licence granted to Marine Harvest for its operations at Shelter Bay, British Columbia, met, or were consistent with, s 56 of the FGRs.
[33] Condition 3.1 of the subject licence concerned the transfer of fish:
3. Transfer of Fish
3.1 The licence holder may transfer to this facility live Atlantic or Pacific salmonids from a facility possessing a valid aquaculture licence issued pursuant to section 3 of the Pacific Aquaculture Regulations between Fish Health zones described in Appendix VI, provided transfers occur within the same salmonid transfer zone as outlined in Appendix II and provided:
(a)…
(b) the licence holder has obtained written and signed confirmation, executed by the sources facility’s veterinarian or fish health staff, that, in their professional judgment:
(i) mortalities, excluding eggs, in any stock reared at the source facility have not exceeded 1% per day due to any infectious diseases, for any four consecutive day period during the rearing period;
(ii) the stock to be moved from the source facility shows no signs of clinical disease requiring treatment; and
(iii) no stock at the source facility is known to have had any diseases listed in Appendix IV; or
(iv) where conditions 3.1(b)(i) and/or 3.1(b)(iii) cannot be met transfer may still occur if the facility veterinarian has conducted a risk assessment of facility fish health records, review of diagnostic reports, evaluation of stock compartmentalization, and related biosecurity measures and deemed the transfer to be low risk.
[34] Justice Rennie, then of this Court, found that condition 3.1 of the licence authorizing the transfer of fish was derived from Part VIII of the FGRs and that the terms of the licence were required to comply with s 56 of those regulations.
[35] Further, that the question of whether the licence satisfied its governing regulatory provisions could be resolved by analogy to the first principles of statutory interpretation. That is, just as a regulation that is inconsistent with the enabling substantive statutory provisions cannot carry out the purposes of the act, nor can any condition of a licence that conflicts with substantive regulatory provisions carry out the purposes of the regulatory scheme. In that regard, s 22(1) of the FGRs stipulated that a licence condition could not conflict with the FGRs or grant that which the FGRs excluded. Justice Rennie concluded that:
[56] The plain meaning of the language “any disease or disease agent” suggests that the phrase is not limited to only those few diseases prescribed by policy as listed in Appendix IV. The Minister’s legal duty under section 56 extends to any disease or disease agent that “may be harmful to the protection and conservation of fish.” Interpreting section 56(b) in this manner is consistent with a purposive and contextual approach, as it supports conservation of the resource, the Minister’s primary obligation under the Fisheries Act: R v Marshall, [1999] 3 SCR 533 at para 40. It is also consistent with the precautionary approach which the Minister says was taken into account. I will address this issue further in Part VII of these reasons.
[57] Again, a purposive, contextual and plain meaning analysis of the language “that may be harmful” suggests this phrase means any disease or disease agent that might be harmful to the protection and conservation of fish. This interpretive approach is again consistent with the precautionary principle, the essence of which is that where a risk of serious or irreversible harm exists, a lack of scientific certainty should not be used as a reason for postponing or failing to take reasonable and cost-effective conservation and management measures to address that risk (Cohen Commission vol 3 at 20). I note, in this regard, that although HSMI was first identified in 1999, it was in Scotland in 2005 and subsequently in Chile, it would be an unreasonable inference to draw from the evidence that it will not appear in farmed Atlantic salmon on the Pacific Coast.
(emphasis original)
[36] Justice Rennie then found that conditions 3.1(b)(i) and (iii) were reasonably consistent with s 56(b) of the FGRs. Condition 3.1(b)(i) established clear, objective criteria governing transfers that were demonstrably linked to subsection 56(b) of the FGRs. Condition 3.1(b)(iii) precluded transfers where stock was known to have had a listed disease that could severely impact fisheries. That is, condition 3.1(b)(iii) was a reasonable articulation of the s 56(b) requirement that a fish transfer occur only where the fish do not have any disease or disease agent that may be harmful to the protection and conservation of fish.
[37] However, conditions 3.1(b)(ii) and (iv) were inconsistent with s 56(b) of the FGRs. Condition 3.1(b)(ii), by allowing a licence holder to transfer fish if the stock “shows no signs of clinical disease requiring treatment”, maintained a lower standard than prescribed by, and contradicted the plain wording of s 56(b), which stipulates that no transfer can take place if the fish have “any disease or disease agent” that may be harmful. Justice Rennie held that showing no sign of disease was a lower threshold than the regulatory scheme demanded, being that the fish “do not have any disease or disease agent.” Further, the FGRs are directed to the health of the resource generally, and not the health of the farmed product or stock. As drafted, condition 3.1(b)(iii) was unclear as to whether or how Marine Harvest’s staff were to determine if the fish had any disease or disease agent. Justice Rennie found that there was no nexus or scientific linkage between the regulatory requirement (directed to the protection of the resource) and the licence condition (directed to the stock).
[38] As to condition 3.1(b)(iv), this allowed the licence holder to override conditions 3.1(b)(i) and 3.1(b)(iii) if the facility veterinarian conducted a risk assessment and considered the transfer to be “low risk.” Justice Rennie found that this circumvented s 56(b) of the FGRs and the regulatory requirement imposed on the Minister to allow transfers only where fish “do not have any disease or disease agent that may be harmful to the protection and conservation of fish.” Effectively, the condition circumvented the s 56(b) regulatory requirements and licensed Marine Harvest to transfer through less rigorous conditions than required by law. Further, the Minister improperly sub-delegated to Marine Harvest, the licensee, the ultimate determination as to whether a transfer was permissible.
[39] Additionally, conditions 3.1(b)(ii) and (iv) were inconsistent with subsection 56(b) of the FGRs in light of the precautionary principle. Justice Rennie found that s 56(b), properly construed, embodied the precautionary principle:
[97] In my view, subsection 56(b) of the FGRs, properly construed, embodies the precautionary principle. First, subsection 56(b) prohibits the Minister from issuing a transfer licence if disease or disease agents are present that “may be harmful to the protection and conservation of fish.” The phrase “may be harmful” does not require scientific certainty, and indeed does not require that harm even be the likely consequence of the transfer. Similarly, the scope of “any disease or disease agent” in subsection 56(b) should not be interpreted as requiring a unanimous scientific consensus that a disease agent (e.g., PRV) is the cause of the disease (e.g., HSMI).
[98] The consequence of interpreting subsection 56(b) consistently with the precautionary principle is that the licence conditions must also reflect the precautionary principle. As the licence conditions cannot derogate from or be inconsistent with subsection 56(b), they therefore cannot derogate from the precautionary principle. As noted earlier, the Minister did not attempt to justify that licence condition 3.1(b)(iv) was consistent with the precautionary principle, but confined his argument in this respect to licence conditions 3.1(b)(i), (ii) and (iii).
[99] In my view, the Minister’s argument cannot stand. For the reasons given, conditions 3.1(b)(ii) and (iv) are inconsistent with section 56(b) and thus with the precautionary principle. The conditions dilute the requirements of subsection 56(b), a regulation designed to anticipate and prevent harm even in the absence of scientific certainty that such harm will in fact occur.
[40] Accordingly, conditions 3.1(b)(ii) and (iv) were found to be of no force and effect and were severed from the aquaculture licence issued to Marine Harvest.
[41] In June 2016, the Minister filed a Notice of Appeal of Justice Rennie’s decision in Morton 2015. The appeal was discontinued in January 2017.
F. Transfer licensing post-Morton 2015
[42] Justice Rennie suspended his judgment for four months from the date of its issuance. On September 8, 2015, in conjunction with the end of that period, the Minister issued amended aquaculture licences. These included condition 3.3:
3.3 From September 8, 2015 until further notice, the licence holder may not carry out transfers pursuant to section 3.1 herein. During that period the licence holder must apply to the BC Introductions and Transfers Committee to obtain an authorization to transfer fish.
[43] DFO’s evidence is that condition 3.3 is still in place and that DFO intends to continue the requirement that marine finfish aquaculture licence holders obtain a separate authorization through the BC Introductions and Transfers Committee (“ITC”) to move fish into and between farm sites, and plans to make this requirement a standard licence condition when aquaculture licences are renewed in 2022 and beyond.
[44] Currently, for every transfer between land based hatcheries and marine salmon farm sites, and between marine salmon farm sites, aquaculture operators are required to submit an Introduction and Transfer Licence Application, as well as a Fish Health Attestation Form executed by the source facility’s veterinarian, fish health staff or facility manager, which, together with other information, are assessed by the ITC. The ITC then makes a recommendation to the DFO Regional Manager, Aquaculture Programs, that the application be allowed or allowed with additional licence conditions. The DFO Regional Manager, as the Minister’s Delegate, then considers the recommendation and decides whether to issue a transfer licence on behalf of the Minister, under the authority of the FGRs.
IV. THE PRV POLICY
[45] As noted above, the Minister has effected a PRV Policy that allows transfer licences to be issued under s 56 of the FGRs without testing the fish to be transferred for PRV and HSMI. The Policy appears to be unwritten, and it is unclear from the record when the PRV Policy first came into effect. However, the record does indicate that the Minister, through his Delegate, has made six decisions to continue the PRV Policy between June or July 2015 and the most recent decision made on June 28, 2018.
A. Previous Decisions
[46] It is useful to summarize the previous PRV Policy decisions and the materials upon which they are based on as contained in the certified tribunal records (“CTR”), specifically the Further Further Amended Rule 318 Certified Tribunal Record of the Minister of Fisheries and Oceans dated June 29, 2018 in T-1710-16 and the Amended Rule 318 Certified Tribunal Record filed in T-430-18, as they illustrate that the Delegate’s decisions to continue the Policy are, in effect, a series on ongoing decisions culminating in the June 28, 2018 PRV Policy Decision, which is under review in these applications.
i) June – July 2015 Decision
There is no written record of this decision.
The CTR contains,
a) May 2014 DFO web statement regarding PRV;
b) June 26, 2015 internal email regarding a statement concerning PRV;
c) DFO Publication, “Regulating and Monitoring British Columbia’s Marine Finfish Aquaculture Facilities 2011–2014”.
ii) September 2015 Decision
There is no written record of this decision.
The CTR contains,
a) A final draft for endorsements, with tracked changes, of “Assessment of the Occurrences, Distribution and Potential Impacts of Piscine Reovirus on the West Coast of North America”, prepared by the the Canadian Science Advisory Secretariat (“CSAS”).
iii) June 2016 Decision
There is no written record of this decision.
The CTR contains,
a) June 2016 DFO web statement regarding PRV;
b) September 11, 2015 (approved) Canadian Science Advisory Secretariat (“CSAS”), Science Response 2015/037, “Assessment of the Occurrence, Distribution and Potential Impacts of Piscine Revirus on the West Coast of North America”(“2015 CSAS Science Response”);
c) DFO publication “Regulating and Monitoring British Columbia’s Marine Finfish Aquaculture Facilities 2011–2014”.
iv) January 30, 2017 Decision
Decision - Memorandum for the Regional Director General, “Management Approach to PRV and HSMI for Fish Transfers in British Columbia (For Decision)”, which was approved on January 30, 2017 (“RDG Memorandum”).
The CTR contains,
a) 2015 CSAS Science Response (an attachment to the RDG Memorandum);
b) Science Overview of PRV and HSMI (DFO) (an attachment to the RDG Memorandum);
c) The Minister of Fisheries and Oceans’ (Minister) Interpretation of Section 56 of the Fishery (General) Regulations (FGRs) (“Minister’s Interpretation”) (an attachment to the RDG Memorandum);
d) Mortality Events Reported in BC 2011–2015 (an attachment to the RDG Memorandum);
e) Draft DFO web statement “Piscine Orthoreovirus (PRV) and Heart and Skeletal Muscle Inflammation (HSMI)”.
v) March 9, 2018 Decision
Decision - mail dated March 9, 2018 from Allison Webb, Regional Director General (“RDG”), confirming that DFO will continue the PRV Policy.
The CTR contains,
a) March 5, 2018 Centre for Science Advice Pacific FPP non-CSAS Request for Rapid Science Response (“March 2018 Rapid Science Response” or “March RSR”);
b) RDG Memorandum;
c) 2015 CSAS Science Response;
d) Science Overview of PRV and HSMI (DFO);
e) Minister’s Interpretation;
f) Mortality Events Reported in BC 2011–2015;
g) February 19, 2018 Draft DFO Internet Posting “Piscine Orthorevirus (PRV) and Heart and Skeletal Muscle Inflammation (HSMI)”;
h) Table of 2016 BC Mortality events;
i) Tables of aquaculture reporting compliance 2011–2017 (DFO).
vi) June 28, 2018 Decision
Decision - email dated June 28, 2018 from Allison Webb, RDG, confirming that DFO will continue the PRV Policy.
The CTR contains,
a) June 27, 2018 (approved) – Centre for Science Advice Pacific FPP non-CSAS Request for Rapid Science Response (“June 2018 Rapid Science Response” or “June RSR”);
b) March 2018 Rapid Science Response;
c) RDG Memorandum;
d) 2015 CSAS Science Response;
e) Science Overview of PRV and HSMI (DFO);
f) Minister’s Interpretation;
g) Mortality Events Reported in BC 2011- 2015;
h) February 19, 2018 Draft DFO Internet Posting “Piscine Orthorevirus (PRV) and Heart and Skeletal Muscle Inflammation (HSMI)”;
i) Table of 2016 BC Mortality events;
j) Tables of aquaculture reporting compliance 2011–2017 (DFO);
k) Document entitled “Regulating and Monitoring British Columbia’s Marine Finfish Aquaculture Facilities 2017” (DFO).
B. Decision Under Review
[47] The June 28, 2018 email from Allison Webb, the RDG and Minister’s Delegate, to two other DFO members, Melanie McNabb and Lauren Lavigne, comprises the decision under review. It states as follows:
Melanie and Lauren – Based on the most recent advice received from Science Branch (Centre for Science and Advice Pacific) on June 27, 2018 which I have read as well as considering the background documents here, DFO will continue the policy approach explained in the briefing note signed on January 30, 2017 that explains that the Department will not test for PRV and HSMI prior to transfers of fish. This is germane to what information is considered before making decisions regarding s. 56 of the FGR.
DFO will continue to actively monitor this area and as new information becomes available consider whether changes will be required in our current management approaches.
[48] The background documents attached to this email are those contained in the Amended Rule 318 CTR for T-430-18, which documents are also found in the Further Further Amended CTR for T-1710-16.
[49] It is necessary to devote some time to describing certain of these documents because they set out the science background utilized by DFO in confirming the PRV Policy, and demonstrate how DFO has responded to new science concerning PRV and HSMI.
i) 2015 CSAS Science Response
[50] The Canadian Science Advisory Secretariat, or CSAS, is a DFO entity that responds to requests for science advice or questions. This can be done by way of a full Science Peer Review Process, which produces a Science Response summarizing key research findings and which can take up to 6 months to produce, or by a Science Response Process if a faster response is needed.
[51] The 2015 CSAS Science Response notes that concerns have been raised regarding the presence of PRV in farmed fish on the Pacific coast and the potential impacts to the health of wild salmonid populations arising from the transfer of hatchery reared fish that carry this virus to marine-based aquaculture facilities. As the advice sought was required within four weeks, a CSAS Science Response was utilized.
[52] The report is, in essence, a technical review of data and studies from a variety of sources which are identified therein. There were four contributors, three from DFO and one (Dr. Gary Marty) from the British Columbia Ministry of Agriculture, and three reviewers, two from the US Geological Survey, Western Fisheries Research Centre and one from the Alaska Department of Fish and Game, Commercial Fisheries Division. It was approved by Carmel Lowe, Regional Director, Science Branch, Pacific Region, DFO, on September 11, 2015.
[53] Based on the review, it finds, amongst other things, that,
- BC-PRV occurs in wild salmonids in western Canada and the US and there is uncertainty about the prevalence of the virus among species and life-history stages of wild Pacific salmon and among farmed salmon in western Canada;
- controlled laboratory experiments in Chinook, sockeye and Atlantic salmon provide good evidence that infection with BC‑PRV does not cause disease in those species and that the absence of associated mortality or pathology in infected fish exhibiting high viral loads also indicates that BC-PRV is of low pathogenicity although, apart from an absence of disease, the challenges resulted in similar infectivity and distribution in host tissues as described for Norwegian PRV obtained from fish with HSMI (the report notes that in Norway many challenge studies and diagnostic testing of samples for HSMI outbreaks have provided evidence towards an association between PRV and HSMI);
- diagnosis of HSMI is by combination of clinical signs (usually occurring 5–9 months after sea transfer and including abnormal swimming behaviour, anorexia and up to 20% mortality) confirmed by histological examination of tissues. Based on the current state of knowledge, there have been no reports of HSMI in farmed or wild fish in British Columbia, Washington or Alaska. While idiopathic cardiomyopathy (heart muscle disease of an unknown cause) had previously been reported in British Columbia farmed salmon, including HSMI-like lesions first diagnosed as the probable cause of death nine years earlier (referencing the Cohen Commission), because skeletal muscle was not sampled as part of the DFO Audit Program until 2013, it has only been after that time that it has been determined that a few cases of idiopathic cardiomyopathy in British Columbia match the pattern of microscopic lesions associated with HSMI in Norway. A retrospective analysis of test results for PRV of Audit Program samples from 2009 found PRV to be common and not associated with any cause of mortality, including idiopathic cardiomyopathy. In summary, there is no combined clinical and histological evidence for the occurrence of HSMI in farmed salmonids in British Columbia. There is a low prevalence of idiopathic cardiomyopathies of unknown cause(s) in audit samples, with 0.2% of fish examined since 2014 having signs of significant inflammations of both heart and skeletal muscles. If it is assumed that those lesions are caused by an infectious agent, the low percentage of infected fish suggests that it is not a highly infectious disease;
- as to an evaluation of the adequacy of current farm-based and wild monitoring practices to detect HSMI or other diseases possibly associated with PRV, this describes fish health auditing and reporting measures for farmed fish, and states that diagnostic evaluations of farmed salmon conducted by aquaculture companies, the Province and DFO are highly likely to have found evidence of HSMI in BC assuming a similar presentation as seen in Norway (clinical symptoms). As all of the aquaculture companies in BC also farm Atlantic salmon in Norw