On September 22, an unprecedented coalition of First Nations, commercial fishers, sport fishers, wilderness tourism organizations and environmental non-governmental organizations (“ENGO’s”) called for Fisheries and Oceans Canada (“DFO”) to remove open net-pen fish farms from British Columbia.
The call comes one week before Mr. Justice Cohen’s recommended deadline of September 30, 2020 for the Minister of Fisheries and Oceans (the “Minister”) to “prohibit net-pen salmon farming in the Discovery Islands… unless [those] farms pose at most a minimal risk of serious harm to the health of migrating Fraser River sockeye salmon.”
Mr. Justice Cohen made the recommendation as part of his commission of inquiry into the decline of Fraser River sockeye. The Government of Canada convened the commission in response to the then record-low return of 1.4 to 1.6 million sockeye to the Fraser River in 2009. In 2020 the Pacific Salmon Commission forecast a return of 941,000 sockeye to the Fraser River but by August had downgraded that forecast to 283,000 fish – the lowest return in history.
To protect wild Pacific salmon, the Union of B.C. Indian Chiefs, First Nation Summit, the B.C. Assembly of First Nations and 101 British Columbia First Nations have already called for the open net-pen fish farm industry to be transitioned out of British Columbia waters and onto land. Twenty-five elected Members of Parliament have also declared their support for a transition of fish farms out of the water.
“My question to the Prime Minister and the Minister is, if you aren’t listening to us and you don’t remove those fish farms, who are you listening to?” Bob Chamberlin, former Chief of the Kwikwasut’inuxw Haxwa’mis First Nations and member of Wild Salmon Forever.
Transitioning the industry to land will test the commitments made by both the B.C. and Federal Government to the Indigenous peoples of British Columbia, including their commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). B.C. has announced that after June 2022 it will grant the land tenures required for fish farms only to fish farms who have negotiated agreements with the First Nation(s) in whose territories they operate and who have satisfied DFO that they will not adversely impact wild salmon stocks. In his 2019 mandate letter to the Minister, the Prime Minister required the Minister to “[w]ork with the province of British Columbia and Indigenous communities to create a responsible plan to transition from open net-pen salmon farming in coastal British Columbia waters by 2025.”
In the Broughton Archipelago, the transition has already begun. In 2018 British Columbia and ‘Namgis First Nation, the Kwikwasut’inuxw Haxwa’mis First Nations and Mamalilikulla First Nation agreed to use a government-to-government process consistent with UNDRIP for the renewal of land tenures for 17 fish farms. That process led to an orderly transition of the 17 fish farms from the Broughton Archipelago by 2023 and those First Nations exercising oversight of the 17 fish farms during the transition.
Open net-pen fish farms of Atlantic salmon have long been controversial in British Columbia. Many First Nations believe fish farms adversely impact their Aboriginal right to fish by transferring pathogens and parasites, such as sea lice, to vulnerable wild Pacific salmon populations. In 2015, in response to a judicial review brought by Alexandra Morton, the Federal Court quashed the Minister of Fisheries and Oceans policy to allow Atlantic salmon infected with the Piscine orthoreovirus (“PRV”) into fish farms. The Court found the Minister had unlawfully delegated decision-making powers to industry licensees and had not adhered to the precautionary principle.
In 2019 the Federal Court quashed the DFO’s policy for PRV again, in response to judicial reviews brought by Ms. Morton and ‘Namgis First Nation. The Court found that the Minister failed to reasonably interpret his core mandate of protecting and conserving fish, did not adhere to the precautionary principle, failed to consider the risk to wild salmon and breached the Crown’s duty to consult ‘Namgis First Nation. The Court gave DFO four months to reconsider the policy. After another four-month extension to consult with Ms. Morton and ‘Namgis First Nation, DFO re-instated the policy. A third judicial review brought again by ‘Namgis First Nation is currently before the Federal Court.
In 2020 the Federal Court of Appeal confirmed that DFO had breached the duty to consult with respect to an approval to stock a fish farm as a result of its failure to consult on the PRV policy.
Those calling for the removal of open net-pen fish farms from British Columbia wish to put this history of controversy and litigation in the past and instead seek a negotiated solutions consistent with Aboriginal rights and the protection of wild Pacific salmon.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.