Recent Decision Affirms Precautionary Principle

In May of this year, the Federal Court released a decision that affirms the importance of the precautionary principle in the management of fisheries.

The decision (Morton v Canada (Fisheries and Oceans), 2015 FC 575) comes as a result of a challenge, launched by lawyers at Ecojustice on behalf of biologist Alexandra Morton, to an aquaculture licence granted by the Minister of Fisheries and Oceans (the "Minister") to Marine Harvest, a multinational seafood company. (Full disclosure: I assisted, albeit very minimally, on this file while employed as an articling student with Ecojustice).

Marine Harvest operated a fish farm at Shelter Bay, BC under the authority of a licence issued by the Minister. In March, 2013, the company transferred Atlantic salmon from one of its hatcheries that were infected with piscine reovirus, (PRV) a virus linked to heart and skeletal muscle inflammation—itself an infectious disease found in farmed salmon—into pens at a fish farm located within proximity to the salmon migration route along the Fraser River.

The licence that purportedly granted Marine Harvest the authority to transfer the diseased salmon contained certain conditions governing the transfer of smolts from hatchery to farm. Ms. Morton argued, in essence, that these conditions were invalid, among other reasons, because they conflicted with regulatory requirements prohibiting the transfer of fish in such a way that would be harmful to the protection and conservation of fish would or would adversely affect fish.

The Minister had argued that the various licence conditions were both reasonable and reflected a precautionary approach to fish transfers.

Justice Rennie was unmoved by the Minister's assertion, holding that

[45] ... although there is a healthy debate between respected scientists on the issue, the evidence, [sic] suggests that the disease agent (PRV) may be harmful to the protection and conservation of fish, and therefore a "lack of full scientific certainty should not be used a reason for postponing measures to prevent environmental degradation": Spraytech at para 31.

[46] ... it is not, on the face of the evidence, open to the respondents to assert that the licence conditions permitting a transfer of PRV infected smolts reflect the precautionary principle. The Minister is not, based on the evidence, erring on the side of caution.

After invalidating several conditions of the licence on other grounds, Justice Rennie went on to emphasize the...