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Federal court overturns order to shut down salmon farms

Court rules former fisheries minister's decision lacked procedural fairness.
A Mowi salmon farm. Mowi has 10 of the 19 salmon farms i nthe Discovery Islands that were order4ed shut down.

Former federal Fisheries and Oceans Minister Bernadette Jordan breached the rights of B.C. salmon farmers to procedural fairness when she ordered all salmon farms out of the Discovery Islands, a Federal Court judge has ruled.

Moreover, the court found that Jordan had “not observed” an injunction that had been granted to salmon farmers, allowing them to continue stocking fish farms with baby salmon while the judicial review made its way through the court. The recent Federal Court ruling enforces that injunction order.

"The BC Salmon Farmers Association is encouraged that the Federal Court has set aside the decision of the minister to remove salmon farming in the Discovery Islands and has upheld the earlier injunction granted on April 5, 2021,” the association said in a released statement.

In December 2020, Jordan announced by news release that 19 salmon farms in the Discovery Islands were to be shut down by June 2022, and that no transfer of fish between hatcheries and farms would be allowed during the 18-month phase-out period. The salmon farmers have complied with the order and have been shutting down their operations in the Discovery Islands.

Though they complied with the order, they filed for a judicial review. On on April 5, 2021, an injunction was granted against Jordan’s ministerial order with respect to the transfer of fish from hatcheries to farms. Basically, it would allow salmon farmers to continue stocking fish farms up until the closure date. It appears Jordan's ministry ignored that injunction. The Federal Court said that the injunction “was not observed by the minister.”

On April 22, Federal Court Justice Elizabeth Heneghan found that Jordan’s order had breached the licence holders’ rights to procedural fairness, as it came without warning or proper consultation and engagement with the industry.

“The decision of the minister will be set aside and the injunction granted on April 5, 2021 will remain in effect,” Heneghan orders in her judgment.

“The applicants have shown that the decision was made in breach of their rights to procedural fairness.”

The decision to order 19 open-net salmon farms shut down in the Discovery Islands was linked to the Cohen Commission, which found that salmon farms in the migration pathways of wild salmon could pose a risk, as they may transmit disease and sea lice to wild salmon.

The Cohen Commission had recommended that the Discovery Islands be cleared of open-net salmon farms, unless the minister of Fisheries and Oceans could be assured that they posed no more than a minimal risk to wild salmon.

That was, in fact, the finding of the federal Canadian Science Advisory Secretariat.

“In response to the recommendations of the Cohen Commission, the Canadian Science Advisory Secretariat produced nine scientific reports,” the federal court judgment notes.

“By September 2020, the common conclusion of the nine reports was that aquaculture in the Discovery Islands poses no more than a minimal risk of harm to the Fraser River Sockeye salmon. The reports were available to the Minister and DFO. DFO does not dispute this conclusion.”

Despite that advice, Jordan ordered 19 salmon farms in the Discovery Islands to be shut down by the summer of 2022. Moreover, she made it without the kind of consultation with licence holders that typically accompany such decisions. Justice Heneghan does not agree with Jordan's assertion that the licence holders had adequate warning or consultation about her decision.

"I do not agree with the minister’s position that the applicants had either constructive or actual notice of her decision regarding renewal of the fish farm licences," Heneghan writes in her decision.

"I also agree with the applicants that they were denied the opportunity to meaningfully respond to concerns."

"The applicants were not privy to the concerns raised by several First Nations, as described in the summary of consultations. They were not apprised of the risk that the fish farms would not be licensed. The fact that a senior employee of DFO was not aware of that possibility underscores the degree of the breach of procedural fairness, relative to the applicants."

Whether the ruling means that all the salmon farms that have already been shut down can now be reinstated is unclear. The Trudeau government's broader mandate with respect to salmon farms in B.C. is to have a plan in place by 2025 to "transition" from open-net fish farms to some undefined alternatives.

“We are still reviewing the decision and determining what this means for the industry and how we will move forward with the First Nations whose territories we operate in,” the BC Salmon Farmers said.