Judge Donald Rennie heard that under the authority of a licence issued by the Minister of Fisheries and Oceans, Marine Harvest Canada, which operates a fish farm at Shelter Bay, British Columbia transferred the salmon smolts from its Dalrymple hatchery) to the fish farm in March 2013.
The smolts were subsequently sampled at the fish farm, and in June 2013 tested positive for piscine reovirus (PRV).
Environmental campaigner and biologist, Alexandra Morton, who has researched aquatics since the 1990s and has longstanding concerns with respect to the effects of aquaculture on the health of the wild salmon population, brought the case to court in the public interest.
Ms Morton was troubled by the transfer of smolts that occurred in March 2013.
In her view, the positive PRV test at the fish farm demonstrated that the smolts had PRV at the hatchery, and therefore that Marine Harvest had transferred diseased fish contrary to the Fishery (General) Regulations, SOR/93-53 (FGRs).
Ms Morton contacted the Department of Fisheries and Oceans (DFO) to inquire as to the regulatory scheme governing such a transfer.
In particular, Ms Morton inquired about whether every transfer from a private hatchery to a fish farm required a transfer licence and, if so, whether such a licence was issued for Marine Harvest’s transfer of the smolts which tested positive for PRV.
In response to Ms Morton’s inquiry, Ms Stacee Martin, DFO Co-Chair of the BC Introductions and Transfers Committee, said that under DFO policies, the Pacific region was divided into nine Salmonid Transfer Zones, and that the regulatory scheme governing a specific transfer depended on whether or not the transfer was within a single Salmonid Transfer Zone or transited multiple Salmonid Transfer Zones.
More specifically, Ms Martin explained that transfers between Salmonid Transfer Zones require a transfer licence under the FGRs, whereas transfers within a single Salmonid Transfer Zone were regulated by the Pacific Aquaculture Regulations, SOR/2010-270 (Aquaculture Regulations).
With respect to the transfer from the hatchery to the fish farm by Marine Harvest, Ms Martin explained that this transfer was regulated by the Aquaculture Regulations because both the fish farm and the hatchery were situated within a single Salmonid Transfer Zone.
Ms Morton was concerned that the Salmonid Transfer Zone policy enabled the transfer of fish to occur under the regulatory authority of the Aquaculture Regulations, which provided, in her view, fewer safeguards against the transfer of fish than the FGRs.
Ms Morton therefore brought this application for judicial review.
She contended that the licence conditions conflict with the regulatory requirements that transferred fish “do not have any disease or disease agent that may be harmful to the protection and conservation of fish”.
Ms Morton also said that the licence conflicts or is inconsistent with the regulatory requirements of section 56(c) that the release or transfer of fish “will not have an adverse effect on the stock size of fish or the genetic characteristics of fish or fish stocks.”
Further, Ms Morton contended the licence condition allows the licensee to make transfer decisions which by regulation are reserved to the Minister, and thus are an impermissible delegation of the Minister’s legislative responsibilities.
The application for judicial review is granted.
Judge Rennie said: “I conclude that licence conditions 3.1(b)(ii) and 3.1(b)(iv) are inconsistent with the regulatory preconditions established by section 56 of the FGRs governing the transfer of farmed fish to the marine environment.”
The application for judicial review was granted, with costs.
The Judge said that the licence conditions 3.1(b)(ii) and 3.1(b)(iv) of the licence issued February 28, 2013 to Marine Harvest Inc. are inconsistent with the regulatory pre-conditions imposed on the Minister of Fisheries and Oceans by section 56 of the Fishery (General) Regulations and are declared invalid and to have no force and effect.
He added that the judgment was suspended for four months from and costs were awarded to Ms Morton.
