Minister of Fisheries and Oceans Grants Licence despite Serious Risk of Irreparable Harm to Salmon Stocks and Indigenous Rights
Vancouver, BC, 2018‑03‑28: On Friday, March 23, Mr. Justice Manson denied ‘Namgis First Nation’s application for an interlocutory injunction to prevent the Minister of Fisheries and Oceans from issuing a licence to Marine Harvest to restock its Swanson Island fish farm without first testing the fish to be transferred for the blood virus, Piscine orthoreovirus (PRV). In related proceedings, Marine Harvest has admitted that all but one of its hatcheries is infected with PRV.
In his decision, Mr. Justice Manson found that the way Fisheries and Oceans Canada and the aquaculture industry conduct themselves with respect to PRV constitutes a serious risk of irreparable harm on a number of fronts, including:
- impacts to severely depleted salmon stocks; and
- impacts to indigenous rights to fish.
Mr. Justice Manson noted that the lack of meaningful consultation with ‘Namgis was “particularly compelling with respect to irreparable harm”.
The Minister of Fisheries and Oceans Canada took no heed of the courts findings of the serious risk of irreparable harm to wild salmon and ‘Namgis’ indigenous rights. He issued a licence to restock the Swanson Island fish farm a few hours later.
“The Minister ignored findings of fact, barged ahead and issued the licence anyway,” said Chief Don Svanvik. “The Minister has not fulfilled the honour of the Crown. He acted with a complete disregard for our rights and interests. What little faith our community had in the honour of the Crown has been shattered.”
When making his findings of irreparable harm, Mr. Justice Manson also made the following findings of fact:
- DFO exercises no supervisory control over the aquaculture industry with respect to PRV.
- Marine Harvest’s testing methods are highly suspect.
- DFO has refused to consult despite the potential impact to ‘Namgis rights
Despite the findings of irreparable harm, Mr. Justice Manson declined to grant the injunction, because the smolts were maturing and required transfer to a salt water environment, not transferring them could cause economic harm to Marine Harvest and ‘Namgis did not provide advance notice that it may bring an application for an interlocutory injunction.
“It is hard to believe that Marine Harvest didn’t know the legal action was coming. We had told them our objection to the fish farm many times. We have written many letters. In any discussion we have had with Marine Harvest, they have always said that they would proceed despite our objections and concerns. We had also written to the Minister expressly saying that any decision to grant the licence would be vulnerable to legal challenge,” said Chief Svanvik.
Mr. Justice Manson accepted Marine Harvest’s estimate that it could lose approximately $2 million if the fish were not transferred, even though the licenced biomass for the Swanson Island fish farm represents less than 2% of biomass Marine Harvest is licenced for in British Columbia.
“It seems clear to me that economic interests of the fish farm industry are more important to the Minister and to the courts than the protection of wild salmon and the Indigenous rights of our people,” said Chief Svanvik.
‘Namgis has decided not to appeal the ruling. The restocking of the Swanson open-net fish farm is already underway and the potential for irreparable harm is now a reality. Instead, ‘Namgis will build on the court’s findings when continuing with its application for judicial review of DFO’s policy not to test for PRV.
Chief Don Svanvik