Morton vs. DFO

By Katherine Palmer Gordon

You’d think Fisheries and Oceans Canada would be on the side of wild salmon. Think again.

May 6, 2015 was a great day for wild salmon,” says Margot Venton, staff lawyer at Vancouver-based environmental legal group Ecojustice. It was a good day for Alexandra Morton, too: The biologist and the wild fish both scored a potentially significant victory in court. 

Two years earlier, Ecojustice had commenced legal action on her behalf against Fisheries and Oceans Canada (DFO) and Marine Harvest Canada Inc in the Federal Court of Appeal, contesting the fish farm company’s DFO-issued licence to transfer young salmon smolts from its hatchery into open-water pens in the ocean. 

Fisheries regulations clearly state that such licences can only be issued if the fish do not have any diseases or carry any disease agents that may be harmful to the protection and conservation of fish. Instead of requiring that precondition to the issue of the licence to be met, however, DFO had simply put the condition right into Marine Harvest’s licence, giving the company complete discretion to decide for itself whether it was complying with it. 

In other words, the fox was put squarely in charge of the henhouse. DFO retained no oversight authority in the licence to make sure in advance that no infected or diseased fish would be transferred. It even permitted Marine Harvest to transfer diseased fish if the company considered the transfer would be “low risk,” despite the fact that the regulations don’t contemplate that. 

In early 2013, Morton learned to her dismay that young fish infected with piscine reovirus (PRV) had been transferred by Marine Harvest into one of their open net fish pens in Shelter Bay, near Port Hardy on northern Vancouver Island, regardless of the potential danger to wild fish. 

“It was a completely reckless thing to do,” says Morton in frustration. PRV in farmed fish in the marine environment represents a significant potential risk to wild salmon, she explains, as the weight of scientific evidence indicates that PRV is the most likely cause of Heart and Skeletal Muscle Inflammation (HSMI), a severe and usually fatal disease in salmon. “That tells us putting farmed fish carrying this virus in close proximity to healthy wild fish is a bad idea,” she says. “And most farm fish do carry PRV. Making that transfer was playing biological roulette with the lives of wild salmon.” 

Morton wasted no time in going to court to seek judicial review of Marine Harvest’s licence. She argued that not only was the transfer of the PRV-infected fish a direct contravention of the regulations, but so was the issue of the licence by DFO in the first place. DFO has a responsibility to protect wild salmon, she told the court. In handing off responsibility for deciding whether a transfer of smolts might be harmful to other fish to a company with little incentive to protect wild salmon, DFO was not meeting that obligation. 

Justice Rennie, who presided over the case, agreed unequivocally with Morton. Rennie found that DFO had clearly abrogated its duty to protect wild salmon by handing off decision-making authority to Marine Harvest: “Unlimited discretion cannot be conferred on a sub-delegate,” he stated. “Supervisory control over the delegate should be retained.” 

In giving Marine Harvest discretion to transfer infected fish that might pose a risk to wild salmon, in direct contravention of fisheries regulations, DFO had also, in the plainest of terms, broken the law: “It seems almost too clear to state that the Minister cannot create any licence conditions which would in fact sidestep or nullify the [regulations],” wrote Rennie scathingly. “However, that is the effect of…the licence,” he concluded. 

In reaching his decision, to Morton’s delight, Justice Rennie took the unusual step of considering and commenting on the scientific evidence presented to him in court. Rennie concluded that Morton was right about that too: “Although there is a healthy debate between respected scientists on the issue, the evidence suggests that PRV is the viral precursor to HSMI and may be harmful to the protection and conservation of fish.” 

In light of that evidence, Rennie also castigated DFO for its failure to apply the “precautionary principle” in issuing a licence giving Marine Harvest complete discretion to release potentially diseased fish into the water. The precautionary principle, which has been recognized by the Supreme Court of Canada, proposes 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. 

In court, DFO argued it had taken all due precautions required. Rennie disagreed in no uncertain terms: “It is not, on the face of the evidence, open to DFO to assert that the licence conditions permitting a transfer of PRV infected smolts reflect the precautionary principle,” he stated. “The Minister is not, based on the evidence, erring on the side of caution.” 

Rennie was equally sarcastic about DFO’s clumsy attempts to insist that science experts were on its side: “The Minister cannot make unsupported statements of science. Nor can the Minister point to expert affidavits, drafted many months after the decision and infer that those considerations must necessarily have been taken into account by the Minister in the exercise of his discretion.”

It’s a dramatic decision, putting a clear onus on DFO to do more to protect wild fish. “Justice Rennie sent a clear message confirming that DFO has a duty to protect and conserve wild fish and the marine environment,” confirms Venton. But while it is a significant win on paper, what happens now remains an open question. 

The judge gave DFO four months to come up with a different form of licence that does comply with the law. Any new licence will have to either leave total control in DFO’s hands to make the decision as to whether smolts are safe or not, or spell out very clear criteria for the company to follow to ensure that diseased or infected fish are not transferred into the ocean. DFO will remain responsible for ensuring the criteria are followed; the fox will no longer be allowed to control the henhouse. 

“The problem for the fish farms, though,” says Morton, “is that as far as I know, they can’t get stock that isn’t carrying the virus. The farms won’t let us test their stock but I am constantly testing farmed fish sold in BC supermarkets, and almost all of them are infected with PRV.” That means it’s critical for fish farms to use infected stock: “They don’t have enough uninfected stock to be profitable.”

This federal government has a proven track record of gutting important environmental laws, so it isn’t out of the question that DFO may therefore simply amend the regulations to allow fish farms to keep using infected stock. Alternatively—as it has to date—it may simply side with the industry’s public stance that there is no disease or virus in their stock, so amendment of the licences or regulations will make no difference to fish farm operations. Business may well carry on as usual. Either way, worries Morton, “DFO would be ignoring the science and putting the whole coast at risk.” 

The problem is that there continues to be little opportunity to directly test industry claims that their fish are fine. The public has no access to disease reports, despite the 2010 Cohen Commission’s conclusion that transparency improves industry safety, to everyone’s benefit. Also still lurking in the background is Bill 37, a 2012 proposal by then Agriculture Minister Don McRae that would make it an offence for anyone to disclose the presence of a reportable animal disease—an offence punishable by two years in prison and/or a fine of $75,000. It was condemned as restricting free speech by citizens and journalists and withdrawn at the time but remains a potential threat that could well be brought forward again by a fish farm-friendly Liberal government. 

The industry is also hedging its bets by claiming that a strain of PRV has been present in Pacific waters since before the introduction of fish farms. “Even if that’s true, which we don’t know yet for sure, it doesn’t matter,” responds Morton. “PRV is a very robust virus and concentrating it in feedlots allows it to reproduce very fast. Unlike in the wild, there are no predators to keep the diseased fish population under control. So these farms are amplifying the problem.” 

Even though Ecojustice’s Venton thinks an appeal of the case is unlikely—the legal point on which it was decided is very clear and would be hard to challenge—Morton’s celebration of her victory is still tempered. “Come December, DFO will be renewing all the aquaculture licences,” she points out. “These are nine-year licences that are locked in. If that happens and DFO allows infected fish to keep being transferred into the ocean, that spells a death sentence for wild salmon on BC’s coast.”

“The real victory,” she concludes bluntly, “will be when these guys pack their bags, get out of the water and go home.”

Katherine Palmer Gordon is a lawyer as well as the author of six books, most recently We Are Born With the Songs Inside Us: Lives and Stories of First Nations People in British Columbia.