Federal Court Quashes Federal Policy Allowing Transfer Of Salmon Into Fish Farms Without Testing For Contagious Virus Or Consulting With Indigenous Peoples

On Feb. 4, 2019, the Federal Court issued its reasons for judgment regarding certain decisions made by the Minister of Fisheries, Oceans and Canadian Coast Guard. The Court's reasons were extensive, spanning roughly 200 pages.

'Namgis First Nation, alongside biologist Alexandra Morton, challenged a policy relating to the process associated with authorizing the transfer of smolts (juvenile salmon) grown on land-based hatcheries into ocean-based fish farms.

Specifically, the Department of Fisheries and Oceans ("DFO") had an established policy of not testing for the presence of Piscine Orthoreovirus ("PRV") or Heart and Skeletal Muscle Inflammation ("HSMI") prior to issuing licences authorizing such a transfer (the "Policy").

DFO had reconsidered, but maintained, the Policy on several occasions. In this litigation, 'Namgis and Ms. Morton challenged the latest iteration of the Policy, which the Minister confirmed on June 28, 2018. 'Namgis additionally challenged a decision by DFO to issue a specific license pursuant to the Policy, authorizing a transfer of smolts to restock a particular fish farm situated in its territorial waters.

In brief, s. 56 of the Fishery (General) Regulations ("FGRs") provides the Minister with the discretion to authorize such transfers. However, s. 56(b) requires the Minister to deny a transfer licence if fish have a disease or disease agent that "may be harmful to the protection and conservation of fish."

Ms. Morton had earlier challenged the Minister's approach to s. 56(b) in Morton v. Canada (Fisheries and Oceans), 2015 FC 575 ("Morton 2015"). That challenge also arose in the context of testing for PRV prior to authorizing transfers.

At issue in Morton 2015 was a condition DFO had included in fish farms' licenses to operate. This condition allowed the operator to itself authorize transfers if it deemed certain criteria were satisfied. The Court in Morton 2015 held that (i) this approach constituted an impermissible delegation of the Minister's regulatory authority to fish farm operators, and (ii) s. 56(b) requires the Minister to take an approach consistent with the precautionary principle when considering transfer requests.

Following the Federal Court's decision in Morton 2015, DFO eliminated the license condition held to be illegal, and adopted the Policy, which included a new legal interpretation of the phrase "the protection and conservation of fish" in s. 56(b). These actions by DFO, together with Morton 2015...