Judicial Review Finds Duty to Consult Was Breached, Quashes DFO Policy

Vancouver lawyer Sean Jones represented ‘Namgis First Nation in a Federal Court of Canada judicial review that has quashed a Fisheries and Oceans Canada (DFO) policy and also found that DFO breached its duty to consult ‘Namgis when developing the policy.

The judicial review focused on DFO’s role in authorizing the transfer of juvenile salmon to open-net fish farms in coastal British Columbia. B.C.’s Broughton Archipelago is home to 20 fish farms, many of which are in areas where ‘Namgis exercises an aboriginal right to fish. (As many as 17 of those fish farms are slated for closure following Sean’s success in another matter where he represented ‘Namgis.)

On September 8, 2015, in response to a decision by the Federal Court in May 2015, DFO adopted a policy not to test fish for the piscine orthoreovirus (PRV) before introducing them into a fish farm. Section 56 of the Fishery (General) Regulations (FGRs) requires that the fish to be introduced “not have any disease or disease agent that may be harmful to the protection and conservation of fish.” The May 2015 Federal Court decision found that PRV was a disease agent harmful to the protection and conservation of fish, and that by allowing fish farms to introduce fish into the marine environment without testing for PRV, DFO was not adhering to the precautionary principle.

PRV causes heart and skeletal muscle inflammation (HSMI) disease in Atlantic salmon and can cause fatal blood disease in species of Pacific salmon, particularly Chinook and coho. This became of particular concern to ‘Namgis, who have seen wild salmon populations decline following the introduction of fish farms to the Broughton Archipelago.

In September 2017, ‘Namgis raised their concerns about fish being transferred without being screened for PRV with DFO. In November 2017, ‘Namgis requested consultation on the matter. DFO did not respond to ‘Namgis’ concerns, and when DFO reconsidered its policy on June 28, 2018, it reaffirmed its position not to test juvenile salmon for PRV—without consulting ‘Namgis.

DFO Policy Quashed

On February 4, 2019, Justice Strickland quashed DFO’s policy not to test for PRV. She found the minister of fisheries’ interpretation of  “the protection and conservation of fish” unreasonable.  She further found the minister’s threshold for when introductions of fish are prohibited to be unreasonable: by only prohibiting introductions of fish carrying disease or disease agents that could pose a risk to an entire species of fish or the ecosystem on which they depend, the minister was not adhering to the precautionary principle. She also found that the minister had failed to adequately consider the risk PRV poses to wild salmon.

Duty to Consult Breached

Justice Strickland also found that DFO breached its duty to consult ‘Namgis, noting that ‘Namgis’ request for consultation on DFO’s approach to PRV in November 2017 triggered a duty to respond to their concerns, which was breached when DFO reaffirmed its PRV policy on June 28, 2018, “without responding to ‘Namgis’ concerns even on a general level.”

MLT Aikins congratulates Sean on his success in this significant judicial review.

About Sean Jones

Based in the Vancouver office of MLT Aikins, Sean practises in Indigenous, environmental and regulatory law, with a focus on natural resource law. He has advised clients on major projects and negotiated commercial agreements between government or industry with Indigenous communities. Sean has represented First Nations in Federal Court and has appeared at all levels of court in British Columbia.