Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard)

Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard)
Court (s) Database
Federal Court Decisions
Date
2021-07-02
Neutral citation
2021 FC 700
File numbers
T-127-21, T-128-21, T-129-21, T-132-21
Decision Content
Date: 20210702
Docket: T-129-21
T-127-21
T-128-21
T-132-21
Citation: 2021 FC 700
Ottawa, Ontario, July 2, 2021
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
MOWI CANADA WEST INC., CERMAQ CANADA LTD., GRIEG SEAFOOD B.C. LTD., AND 622335 BRITISH COLUMBIA LTD.
Applicants
and
THE MINISTER OF FISHERIES, OCEANS AND THE CANADIAN COAST GUARD
Respondent
and
ALEXANDRA MORTON, DAVID SUZUKI FOUNDATION, GEORGIA STRAIT ALLIANCE, LIVING OCEANS SOCIETY AND WATERSHED WATCH SALMON SOCIETY
Interveners
ORDER AND REASONS
[1] On January 18, 2021, each of Cermaq Canada Ltd. [Cermaq] (T-129-21), Mowi Canada West Inc. [Mowi] (T-127-21), Grieg Seafood B.C. Ltd [Grieg] (T-128-21) and 622335 British Columbia Ltd. [Saltstream] (T-132-21) filed applications for judicial review challenging the December 17, 2020 decision of the Minister of Fisheries, Oceans and the Canadian Coast Guard [Minister] to phase out existing salmon farms in the Discovery Islands by June 30, 2022 and to prohibit the transfer of live fish into saltwater sites during the phase out period [Minister’s Decision or Decision]. On February 2, 2021, with consent of all parties, the four applications were consolidated and ordered to be heard together.
[2] Cermaq brings this motion for an interlocutory injunction, seeking to restrain the Minister from implementing her decision to phase out existing salmon farming facilities in the Discovery Islands – insofar as that decision prohibits the transfer of fish into two of Cermaq’s aquaculture sites during the 18 month phase out period – pending the hearing and determination of Cermaq’s underlying application for judicial review of the Minister’s Decision. The motion is brought pursuant to ss 18 and 18.2 of the Federal Courts Act, RSC 1985, c F-7.
[3] This is not the first injunction motion relating to fish transfers that has been brought in these consolidated matters pending judicial review of the Minister’s Decision to phase out salmon farming in the Discovery Islands. On April 5, 2021, Justice Pamel granted the injunctive relief sought by Mowi and Saltstream in Mowi Canada West Inc v Minister of Fisheries, Oceans and the Canadian Coast Guard, 2021 FC 293 [Mowi]. Cermaq supported Mowi and Saltstream in that motion (Mowi at para 50).
Factual Background
[4] Cermaq and Canada have made detailed written representations as to the factual, procedural and legal backdrop to this motion. Those can be referenced in their respective submissions. What follows is a general background and overview of the legislative framework that governs fisheries licencing and of the events leading up to this injunction motion, the purpose of which is to situate and provide context to the motion before me.
[5] Pursuant to s 7 of the Fisheries Act, RSC 1985, c F-14 [Fisheries Act], the Minister may, in her 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. When making such decisions the Minister is required to consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982 (Fisheries Act ss 2.3, 2.4). The Minister may also consider the factors set out in s 2.5 of the Fisheries Act, which include social, economic and cultural factors in the management of fisheries (s 2.5(g)).
[6] Section 43 of the Fisheries Act permits the Governor in Council to make regulations for carrying out the purposes and provisions of the Fisheries Act.
[7] These regulations include the Pacific Aquaculture Regulations, SOR/2010-270, which govern the issuance of aquaculture licences in British Columbia and pursuant to which DFO has issued marine aquaculture licences to Cermaq (and the other Applicants), authorizing it to carry out aquaculture activities. The Fishery (General) Regulations, SOR/93‑53, provide a general regulatory framework governing the management of the fisheries. Section 55 of the Fishery (General) Regulations prohibits the release of live fish into any fish habitat or the transfer of any live fish to any fish rearing facility unless authorized by licence. These licences are generally referred to as “transfer licences”. Section 56 of the Fishery (General) Regulations describes the circumstances under which the Minister may issue a transfer licence:
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.
[8] The National Code on Introductions and Transfers of Aquatic Organisms [ITC Code] was jointly implemented by Canada’s federal, provincial and territorial governments in 2003. It is an evergreen document, the most recent version was issued on June 28, 2017. The ITC Code states that it establishes “an objective decision-making framework and consistent national process for assessing and managing the potential ecological, disease and genetic risks associated with intentionally moving live aquatic organisms into, between, or within Canadian watersheds and fish rearing facilities”. Further, where the Fishery (General) Regulations apply the Regional Director General of DFO may exercise the power to issue s 56 transfer licences on behalf of the Minister; low-risk movements may be undertaken by an appropriate departmental delegate (ss 6.2.1, 7.2.3). The ITC Code states that the decision making authority, or delegates, should not be a member of the ITC Committee, given that the ITC Code allows for inputs into the decision-making process that are external to the Committee’s mandate for transfers requiring formal risk assessments, such as socio-economic criteria and the interests of Indigenous groups (s 6.2.3). The decision-making authority will consider the risk assessment provided by the ITC Committee and the certainty surrounding it. The decision-making authority may take into account socio-economic factors and Indigenous considerations, and will determine whether the risk is acceptable or not (s 6.3.14). Applicants who have been denied a licence may resubmit an application for consideration by the ITC Committee after adding new information directly relating to the risks associated with the licencing decision (s 6.3.15).
[9] Cermaq (and the other Applicants) are subject to the regulatory regime described, in skeletal form, above. Aquaculture operations are also subject to a variety of other regulations and legislation not directly relevant to this injunction motion.
[10] Cermaq has three aquaculture sites in the group of islands between the east coast of Vancouver Island and the mainland of British Columbia, known as the Discovery Islands. Mowi has thirteen such sites, while Grieg, Saltstream and another entity each have one aquaculture site in the Discovery Islands.
[11] Cermaq, or its predecessors, have operated the Brent Island and Venture Point aquaculture sites since 1989.
[12] Cermaq’s aquaculture production cycle is comprised of several stages over seven to eight years and requires advanced planning and scheduling. First, the eggs from the broodstock (salmon selected to breed future generations of fish) are collected and transferred to hatcheries where the eggs are incubated until they hatch (fry) and are transferred to freshwater tanks where they continue to grow into small fish (parr). After approximately 14 months in the hatchery, the smoltification process begins, requiring the fish to transition to saltwater within a two to three week period (smolt window). Once this occurs, the fish (now smolts) are transferred from hatcheries to marine net-pens. Some fish are grown out in one marine site until they are ready to be harvested, while other fish are initially grown in one marine site (a nursery site) before being moved to another marine site to finish their growth. In either case, the time required in the marine sites for growing smolts to harvestable fish is approximately 18-22 months.
[13] Brent Island and Venture Point are sites where fish are transferred as juvenile salmon (not smolts) after being raised in a nursery site for a few months. Cermaq’s evidence is that its production cycle for fish that were destined for Brent Island and Venture Point in 2021 began in 2017 when the broodstock for this generation of fish were spawned, and that those sites operate on a roughly two-year cycle, in which fish are transferred to the sites at the same time every two years.
[14] Cermaq’s evidence is that, since at least 2018, its production plan provided the scheduled transfers of juvenile salmon to its Brent Island and Venture Point farms in May/June 2021, with an originally planned harvest between late 2022 and February 2023. As of June 20, 2021, Cermaq has 1,487,926 fish at its Cecil Island nursery farm. These fish have been at Cecil Island since being transferred there in February and March of this year. Their current average weight is 360 g, and they are approximately 35 cm in length. A condition of the Cecil Island aquaculture licence is that it has a maximum allowable biomass of 650MT. If Cermaq were to continue feeding the fish in the usual course, it would have to stop feeding the fish by July 3, 2021 so as to not exceed its biomass limit. By reducing feed by 25% the biomass limit will be reached by July 9, 2021.
[15] Cermaq states that if it is not granted a transfer licence to move the Cecil Island fish to Brent Island and Venture Point, then it will have to cull all of those fish, as there is no other facility to which they can feasibly be transferred and they cannot be left to grow out at the Cecil Island nursery farm.
[16] Cermaq’s evidence is that it has routinely applied for fish transfer licences, approximately 15 each year, and that the transfer licences have been issued by DFO so long as fish health requirements were satisfied. Prior to April 27, 2021, DFO had never denied one of Cermaq’s transfer licences applications. Transfer licences were generally issued within approximately 20 business days after the application had been submitted, in accordance with the Service Standards for Routine Movements, Appendix 8 of the ITC Code.
[17] In a September 28, 2020 news release, the Minister announced that starting immediately DFO would be consulting with seven named First Nation communities about the aquaculture sites in the Discovery Islands and “The information exchanged will inform the government’s decision on whether or not to renew aquaculture licences in the area, prior to the December-2020 deadline”.
[18] The press release also noted that DFO had completed nine peer-reviewed, scientific risk assessments which concluded that the transfer of the pathogens studied posed a minimal risk to abundance and diversity of migrating Fraser River sockeye salmon in the Discovery Island area. It stated that, moving forward, DFO would continue to take a collaborative and area-based approach to aquaculture management and decision-making. An area-based approach would consider Indigenous knowledge, social, economic, geographic, and environmental factors and aim to increase collaboration among parties as government advanced its commitment to develop a responsible plan to transition marine net-pen salmon farming in coastal British Columbia waters. That approach would see DFO working closely with the Province of British Columbia, First Nations, industry, and other stakeholders to develop a comprehensive and pragmatic approach to aquaculture while critical work continued in key areas. The news release included the following quote from the Minister:
This government is committed to an area-based management approach to aquaculture, and we recognize the concerns raised by partners that these particular farms may not be the best fit for this location nor for the adjacent communities. We will be consulting with each First Nation within the Discovery Islands area, and the information and views they provide will inform my decision on whether or not to renew licences for these farms this December, and in the future.
[19] By letter of November 24, 2020, DFO referenced the Minister’s September 28, 2020 announcement and, as a part of the decision making process, invited Cermaq to provide information to inform the decision. Cermaq made its submission on November 30, 2020 attaching four reports, however, Cermaq asserts that its submission was hampered by a lack of information as to the decision making process, the nature or scope of the decision and the concerns raised by First Nations.
[20] On December 8, 2020, the Deputy Minister prepared the “Memorandum for the Minister, Licensing of Marine Finfish Aquaculture in the Discovery Islands (FOR DECISION)” [Memorandum]. The purpose and scope of the Memorandum are captured in its Summary:
Summary
The purpose of this note is to seek a decision on the issuance of licences for 19 finfish aquaculture sites located within the Discovery Islands (DI) in British Columbia (BC) which are expiring on December 18, 2020. A decision is requested no later than December 15, 2020.
To inform the decision and in response to Recommendation 19 of the Cohen Commission. Fisheries and Oceans Canada (DFO) Science completed nine peer-reviewed, risk assessments to determine the impact of pathogens from salmon farms on Fraser River sockeye. Based on these risk assessments, it was concluded that the potential transfer of these pathogens from farm fish to wild fish would pose a minimal risk to migrating Fraser River sockeye salmon.
Additionally, data collected by DFO's BC Aquaculture Regulatory Program from 2011-2020 indicates that across all metrics, the DI farms are generally well performing, minimizing their impacts on fish and fish habitat. This includes the management of sea lice where the farms in the DI area have been below the threshold for action (e.g. treatment or harvest) required under their conditions of licence with some exceptions in 2015 and 2020.
From October to December 2020, the Department undertook consultations with First Nations whose territories overlap aquaculture sites in the DI. The First Nations had a range of views regarding the ongoing licencing of these DI farms, but all expressed concern about potential impact of the farms on wild salmon stocks in their claimed territories. All of the First Nations shared in an interest in extending the consultation period and being engaged in the monitoring and/or management of the sites. Specific accommodation measures were requested to address potential infringements of Aboriginal rights to fish.
It is recommended that licences be issued to facilities in the DI with an expiration date of June 30, 2022. This timeframe will respond to requests from First Nations for an extension of time to allow meaningful consultations to take place while allowing progress to be made towards Area Based Management (ABM). This timing considers the lifecycle of the farmed salmon to allow for the grow out and harvest of fish that are currently in the production plans for the DI area. This timeframe would also support the harmonized licence approach between DFO and BC agreed to in the Memorandum of Understanding (MOU) 2010 by being aligned with the BC tenure decision policy effective date of June 2022. It would also provide for sufficient notice for industry to plan accordingly for the 2022 deadline, and work to establish agreements with First Nations where possible.
[21] The Memorandum includes background information concerning the Discovery Islands aquaculture licences; the Cohen Commission final report (The Uncertain Future of Fraser River Sockeye), in particular Recommendation 19 which directed the Minister to determine by September 30, 2020, whether marine finfish aquaculture in the Discovery Islands causes more than a minimal risk of serious harm to Fraser River sockeye salmon; the published results of DFO’s nine scientific risk assessments on pathogens found on Discovery Islands salmon farms to determine the risk to Fraser River sockeye salmon; and the data collected by DFO’s BC Aquaculture Regulatory Program (BCARP) that analyzed environmental performance and compliance on BC salmon farms in the Discovery Islands from 2011-2020, attaching copies of the referenced documents.
[22] The Memorandum then sets out DFO’s analysis and considerations, including the results of DFO’s consultations conducted between October and December 2020, attaching a document titled “Record of Consultations: Licence of Aquaculture Sites in the Discovery Islands” [Consultation Record]. The Consultation Record summarizes the consultations between DFO and the seven First Nations whose territories overlap with aquaculture sites in the Discovery Islands, as well as input from First Nations outside the Discovery Islands and consultations with the aquaculture industry in British Columbia, including Cermaq and the other Applicants.
[23] The Memorandum’s analysis, among other things, notes that the seven First Nations had different views regarding the reissuance of licences and ongoing operation of farms in their territories. This ranged from the tabling of a decommissioning plan for all farms and specific requests for detailed accommodation measures, to interest in co-management opportunities for aquaculture operations. With respect to industry, the analysis notes that a decision to not re-licence these farms would have a significant financial impact on the existing licence holders. The Memorandum noted that the farms in the Discovery Islands area have a combined annual revenue of $105-130 million (2017-2019 data), and significant capital investments in each of the sites. The indirect economic contribution loss to the area was estimated to be greater than $150 million. This would also result in an estimated loss of over 900 jobs in coastal and rural BC, with over 200 of those being directly employed by farms. And, due to production planning, juvenile fish currently in hatcheries that were destined for the farms in the Discovery Islands would need to be culled should the farms not be re-licenced.
[24] The Memorandum presented the options available to the Minister and the Deputy Minister’s recommendations and next steps. It recommended that the licences be issued to existing licenced facilities in the Discovery Islands with an expiration date of June 30, 2022, together with the taking of additional complementary measures that were set out.
[25] On December 16, 2020, the Minister indicated on the Memorandum that she did not concur with the recommendations. Rather, she indicated her decision as follows:
Instead, I affirm the direction as discussed in the December 11, 2020 bilateral meeting with the DM:
My decision is for a temporary (18 month) renewal of aquaculture licenses for facilities operating in the Discovery Islands. All farms in this area must no longer have fish in pens by June 30th, 2022.
- During the period between licence renewal and June 30th, 2022, no hatchery smolts will be introduced.
- The intent of allowing time to grow out and harvest fish already in pens is to avoid culling in order to meet timelines.
[26] On December 17, 2020, a press release was issued regarding the Minister’s Decision which states:
…. Today, the Honourable Bernadette Jordan, Minister of Fisheries, Oceans, and the Canadian Coast Guard, announced her intention:
- To phase out existing salmon farming facilities in the Discovery Islands, with the upcoming 18-month period being the last time this area is licenced;
- To stipulate that no new fish of any size may be introduced into the Discovery Islands facilities during this time; and
- To mandate that all farms be free of fish by June 30, 2022 but that existing fish at the sites can complete their growth-cycle and be harvested.
These facilities are some of the oldest sites on the West Coast and are located on the traditional territory of the Homalco, Klahoose, K’ómoks, Kwaikah, Tla’amin, We Wai Kai and Wei Wai Kum First Nations. Consultations with the seven First Nations in the Discovery Islands area provided important guidance to the Minister and heavily informed the decision. This approach also aligns with the Province of British Columbia’s land tenure commitment that all aquaculture licences as of June 2022 require consent from local First Nations.
[27] The “backgrounder” to the December 17, 2020 press release stated the following with respect to the issuance of s 56 Fishery (General) Regulations transfer licences:
To implement the approach, issuance of Section 56 Fishery (General) Regulations (FGR) Introductions and Transfers licences would cease moving forward. Farm operators have been informed that the intention is to no longer issue Section 56 FGR licences, and that the expectation is that the farms will not be licenced to operate after June 30, 2022. Restricting the issuance of these licences for the 19 DI sites, would result in no further fish transferred in the DI farm sites. At this time, no changes to condition of licence are contemplated.
[…]
Ceasing the transfer of fish into DI sites could result in instances where fish currently rearing in hatcheries or in smolt-entry sites would need to be accommodated at other farm sites or voluntarily culled by the operator.
[28] On December 19, 2020, DFO issued three marine finfish aquaculture licences to Cermaq for the Raza Island, Brent Island and Venture Points sites. As in the past, a condition of those licences is that Cermaq, as the licence holder, apply to the ITC to obtain a licence to transfer live fish.
[29] On or about December 22, 2020, Cermaq received a letter from DFO advising of the Minister’s Decision, restating its intent and indicating the DFO would work with Cermaq to plan a fair and orderly transition. And, in response to feedback from First Nations throughout the consultations, DFO stated that it would also ensure that information was shared with the First Nations moving forward.
[30] On January 18, 2021, each of Cermaq (T-129-21), Mowi (T-127-21), Grieg (T-128-21) and 622335 BC Limited (T-132-21) filed applications for judicial review challenging the Minister’s Decision to phase out existing salmon farms in the Discovery Islands by the end of June 2022, and to restrict the transfer of live fish between hatcheries and saltwater sites during the phase out period.
[31] In the meantime, on January 6, 2021, Mowi applied for a licence to transfer 100,000 Atlantic salmon smolts from its hatchery to its saltwater site at Sonora Point [Sonora Point Application]. On February 5, 2021, the ITC coordinator responded advising that “[a]s it is the policy of the Government of Canada that no new fish may now be introduced into Discovery Islands facilities, we have to advise that a refusal of your application is being considered. That said, in order to assess your application fairly, all relevant factors associated with your application will be considered, including whether to make an exception to the government’s policy” (Mowi at para 33).
[32] Mowi made a responding submission. However, on February 26, 2021, the Minister refused the Sonora Point Application. On February 16, 2021, Mowi also submitted two other transfer licence applications. The first to transfer up to 600,000 Atlantic salmon from its nursery site at Port Elizabeth to its saltwater site at Phillips Arm on March 30, 2021 [Phillips Arm Application], and the second to transfer up to 800,000 Atlantic salmon from its nursery site at Larsen Island to its saltwater site at Okisollo on March 30, 2021 [Okisollo Application].
[33] On February 24, 2021, Mowi received letters with respect to its Phillips Arm and Okisollo Applications similar to the February 5, 2021 letter it received with respect to its Sonora Point Application. Mowi ultimately withdrew its Okisollo Application, revised its production plan to the extent that it could and eventually euthanized 920,000 Atlantic salmon smolts that could not be accommodated elsewhere in its facilities (Mowi at paras 35-37).
[34] On March 6, 2021, Mowi made further submissions with respect to its Phillips Arm Application. At the time of the hearing of Mowi’s injunction motion that application was still pending. Mowi also planned to submit a further transfer licence application for the transfer of up to 582,000 Atlantic salmon from its Shelter Pass nursery site to its Hardwicke saltwater site [Hardwicke Application]. The Phillips Arm and Hardwicke Applications, as well as a transfer licence application made by Saltstream, were the subject of the motion for injunctive relief before Justice Pamel (Mowi at paras 38-40).
[35] Justice Pamel stated that the relief sought by Mowi and Saltstream was:
[49] I should also make clear that neither Mowi nor Saltstream is looking to secure an outcome, as argued by the Minister, and seeking mandatory orders in the form of mandamus compelling the Minister to issue fish transfer licences required under section 56 of the FGR. Rather, they are only seeking an order suspending the operation of the Minister’s Decision in relation to three transfer licence applications, allowing those applications to be processed in accordance with the statutory scheme set out in the FGR and the Code without the fettering, as they claim, of the Minister’s discretion under section 56 of the FGR as a result of the Minister’s Decision.
[50] In short, Mowi and Saltstream are seeking an order to maintain what they claim to be the status quo in relation to the three transfer licence applications.
……
[72] Neither Mowi nor Saltstream is seeking judicial review of a refusal by the Minister to issue a transfer licence, so the question of how the Minister exercised her discretion under section 56 of the FGR is not in issue.
(see also paras 45, 67, 70, 87, 95, and 98.)
[36] On April 5, 2021, Justice Pamel granted the injunctions, ordering that the component of the Minister’s Decision prohibiting the transfer of fish into licenced aquaculture facilities was enjoined with respect to the three transfer applications at issue.
[37] Meanwhile, by letter of February 4, 2021, Cermaq wrote to DFO advising that fish in Cecil Island were scheduled to be moved to Cermaq’s Brent Island and Venture Point sites as part of Cermaq’s production plan. Because Cermaq would be applying for transfer licences with respect to those transfers, it sought clarification on the criteria that would be applied to the transfer licence applications that Cermaq would be making.
[38] On April 16, 2021, Cermaq submitted its application to transfer juvenile Atlantic salmon from its nursery site on Cecil Island, to its Brent Island and Venture Point sites, for growing to harvest. In its covering letter, Cermaq advised that it had recently entered into an agreement with the Wei Wai Kum First Nation [WWK Agreement] and that the transfer licence application was brought with the consent and support of the Wei Wai Kum, whose core territory includes Venture Point and Brent Island. A letter of support and consent for the joint application from Chief Roberts of the Wei Wai Kum was also included with the submission. Cermaq’s covering letter also set out why Cermaq and Wei Wai Kum were of the view that Cermaq should be exempt from the Minister’s Decision, thereby permitting Cermaq to stock the Brent Island and Venture Point sites, commencing on July 1, 2021. This included that the WWK Agreement provided a path forward to ease some of the impacts of the transition of salmon farming at those sites and that the WWK Agreement advances reconciliation.
[39] Of note is that the Province of British Columbia licences occupations for aquaculture sites, including Cermaq’s. The Brent Island occupation licence expires in 2031 and the Venture Point in 2034. Pursuant to the WWK Agreement (and if the transfer licences are issued by DFO), Cermaq would transfer those licences to Wei Wai Kum. The Province would consider this to be a licence of occupation assignment for purposes of provincial policy that requires aquaculture operators to have agreements in place with First Nations in whose territories they propose to operate for all tenures issued after June 2022. Canada’s evidence is the Province views the WWK Agreement as being consistent with that policy, although a decision on approving the occupation licence transfer has not yet been made.
[40] By email of April 27, 2021, DFO stated that it was providing Cermaq (and the other Applicants) with an update on DFO’s approach to applications to transfer fish in the Discovery Islands [Revised Process]:
Dear Cermaq Canada,
In light of the recent court ruling on the injunction related to transfer requests into the Discovery Islands, Fisheries and Oceans Canada (DFO) would like to provide you an update on the department’s approach to applications to transfer fish into Discovery Island farms.
It is critical that DFO understand the perspectives of the Discovery Islands First Nations with respect to these potential transfers, including whether such transfers would be supported from a social and/or cultural point of view. Consequently, moving forward, DFO will be engaging with Discovery Island Nations on individual transfer applications. DFO will be providing details of the transfer application to the potentially impacted Nations, including the company name, transfer location(s), dates of proposed transfers (both in and out as applicable), and fish health information. First Nations will be given 15 business days to provide input on individual transfer applications.
If this input indicates that First Nations have concerns with the transfer, including from a social and/or cultural point of view, this will be relevant information to the Minister in her consideration of the transfer request. In this circumstance, the applicant will be informed of the First Nations’ input and given an opportunity to provide submissions, within five (5) business days, on why the transfer should be granted in light of the First Nations’ perspectives. These submissions will be considered prior to any decision being made on the transfer.
To allow time for the process outlined in this letter, DFO will now be processing transfer applications into the Discovery Islands under a 40 business day service standard.
In order to facilitate the processing of these applications within this new timeline, and to assist in meeting operational requirements of any potential transfer, please respond to DFO indicating whether or not your company intends to apply for any transfer applications into the Discovery Islands prior to June 2022. If available, the intended source, destinations, and timelines would be useful in ensuring these applications are processed efficiently.
The Minister’s policy announcement to phase out fish farms in the Discovery Islands by June 2022 is not affected by the injunction decision, and will be considered in any transfer applications into the area. As such, please indicate the date on which your company intends to have the transfer destination location free of fish should the transfer application be approved.
If you have already applied for a transfer licence, and you have not already done so, please provide the information set out above.
……
[41] On April 30, 2021, Cermaq wrote to the Minister requesting a one time extension to Cermaq’s aquaculture licences for Brent Island and Venture Point to allow for growing and harvest up to February 28, 2023. Cermaq indicated that the requested 7-month extension would represent its normal, historic production schedule for those two sites and supported its stocking this site after the sensitive, out-migration period for wild salmon. This request was accompanied by a letter of support from Chief Roberts of Wei Wai Kum.
[42] By email of May 14, 2021, DFO advised Cermaq that it would consider the transfer application and the extension request at the same time and that DFO was currently consulting with First Nations on the applications. By letter of May 27, 2021, DFO advised Cermaq that it was consulting with Homalco, K’omoks, Kwiakah, Tla’amin, We Wai Kum and Wei Wai Kai First Nations and had received information from them that was relevant to the Minister’s consideration of Cermaq’s applications. Access to the relevant documents was provided to Cermaq and it was asked to provide any response within five business days. Cermaq provided its response on June 3, 2021.
[43] Following these consultations the Deputy Minister prepared a MEMORANDUM FOR THE MINISTER, Request to Transfer Live Farmed Salmon into the Discovery Islands and Extend Facility Licences for Cermaq Canada (FOR DECISION) dated June 14, 2021 [Transfer Memorandum]. The Summary of that document states as follows:
Summary
The purpose of this note is to seek your decision on applications from Cermaq Canada Ltd. (“Cermaq”) to transfer live fish into two sites in the Discovery Islands and to extend the marine finfish licences at these two sites.
On April 16, 2021, the British Columbia Introductions and Transfers Committee received an application from Cermaq to transfer 1,499,000 Atlantic salmon from Cecil Island (Facility 819) to Venture Point (Facility 306) and Brent Island (Facility 1401). On April 30, 2021, Cermaq applied to extend the facility licences for Venture Point (Licence AQFF 122921) and Brent Island (Licence AQFF 12911) until February 28, 2023. The licence extension application was made to allow the full grow-out of the fish to be transferred. Cermaq indicated that the fish would be harvested by February 28, 2023, if their transfer were allowed.
The British Columbia Introductions and Transfers Committee reviewed the transfer application in accordance with section 56 of the Fishery (General) Regulations and determined that the request meets each of its three pre-conditions (a, b, and c), and therefore a transfer could be licenced. DFO has considered the request to extend the facility licences and determined that these extensions are not precluded for any reason related to wild or farmed fish health, and therefore extensions could be granted.
DFO consulted with First Nations claiming territory where the transfer sites are located on both the transfer application and the facility licence extension application, and also sought input from Cermaq in response to the First Nations and other external submissions. There is support and opposition to these applications. From the Department’s perspective, two options would be available.
Option 1: approve the application to transfer 1,499,000 Atlantic salmon from Cecil Island to the Venture Point and Brent Island facilities, located in the Discovery Islands, and approve the application to extend the licences for thee facilities to February 28, 2023.
Option 2: deny both applications.
Option 1 is supported by the department. You are being asked to make a decision on these two applications by June 14, 2021 at the latest.
[44] The Transfer Memorandum is detailed and addresses science, consultations with First Nations as well other stakeholder concerns. Under the summary of Department advice it states:
DFO Science Branch advises that there is no new or novel information presented in the submissions provided during the review of Cermaq’s application that would trigger a change in process. The Introductions and Transfers Committee concurs with the conclusion of Science Branch that there is no new or novel information presented in these submissions that would alter its review process. The committee reviewed the transfer application in accordance with section 56 of the Fishery (General) Regulations and determined that the request meets each of its three pre-conditions (a, b, and c) and therefore a transfer could be licenced. DFO has similarly considered the request to extend the facility licences and determined that these extensions are not precluded for any reasons related to wild or farmed fish health.
The communities of the three Laichkwiltach First Nations, including Wei Wai Kum First Nation, are the closest to the Venture Point and Brent Island sites. The Wei Wai Kum and the Wei Wai Kai support the applications and the Kwiakah defer to the other two Nations. The Wei Wai Kum First Nation has entered into an agreement with Cermaq pursuant to which the First Nation would receive benefits if the applications were granted. They further indicate that this agreement would contribute to reconciliation with them. Granting the applications is also expected to generate economic benefits i.e. wages for worker and income for local businesses.
[45] The Minister again rejected the recommendation of the Deputy Minister and DFO and indicated that she denied both applications.
[46] By letter of June 14, 2021, the Minister advised Cermaq that she denied the transfer application [Transfer Decision]. The Minister’s letter states:
Dear Mr. Foulds:
This is further to your application of April 16, 2021 to transfer 1,499,000 Atlantic salmon from Cecil Island to Venture Point and Brent Island, and your subsequent application of April 30, 2021 to extend the Venture Point and Brent Island marine finfish aquaculture licences to February 28, 2023.
In assessing these applications, I have considered a number of factors. These included:
- The assessment by the Introductions and Transfers Committee under section 56 of the Fishery (General) Regulations;
- The policy as announced on December 17, 2020 on the intention to phase out aquaculture operations in the Discovery Islands by June 2022, with the exception that I have not considered the component of the policy that related to the intention to cease the transfer of fish into licenced aquaculture facilities in the Discovery Islands until then;
- The submissions provided by Cermaq Canada Ltd. on why a transfer licence and an aquaculture licence extension should be granted; and
- The perspectives of the Wei Wai Kum, Wei Wai Kai, Kwiakah, K’ómoks, Homalco, and Tla’amin First Nations, all of which claim territory in the area where the sites are located.
In your submissions, you provided information on why your proposed transfers and extension applications should be granted. This included your view that your agreement with the Wei Wai Kum First Nation could become a template for reconciliation, and further how this and your other agreements can address conservation concerns with respect to wild salmon interactions, and serve to respect Indigenous rights and title.
I have also noted your perspective that available science indicates that the risk to wild fish from concerns like Piscine orthoreovirus, Tenacibaculum maritimum, and sea lice is low, and you have multiple safeguards in place to ensure that remains the case. You have indicated that there are various social and economic considerations related to these applications, including the social acceptability of salmon farming in certain areas on north Vancouver Island and investments made annually in community and philanthropic initiatives.
I have given due consideration to the information you have provided. While I understand your perspectives, a number of the First Nations consulted continue to strongly oppose salmon aquaculture in this area, and expressed those views during the consultations, notably for reasons related to the conservation and protection of wild salmon stocks and for social and cultural reasons. In my view, social acceptability for commercial finfish aquacult