“Irrational, unjustified and lacking in procedural”: Federal court hearing on BC fish farm phase-out underway

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This week, the Federal Court of Canada is hearing whether to uphold a previous ministerial order to phase out open pen salmon farms in the Discovery Islands.

In December 2020, Bernadette Jordan, then Minister of Fisheries, Oceans and the Canadian Coast Guard, ordered the phase out of fish farms in the area by June 2022. This means licenses of existing farms would not be renewed and no new farms would be granted approval throughout the Discovery Islands.

In response, Mowi Canada West, one of four aquaculture companies operating in the area, applied in January 2021 for the Federal Court to review this decision. That request was granted and the case is now being heard in Vancouver.

According to Mowi Canada West, the minister’s decision was made without consultation of the industry and threatens the viability of the company’s operations in British Columbia.

The fish farmers also claim that the former minister mischaracterised the science that was in front of her while making pejorative references to sea lice thresholds and sea lice treatments in the Discovery Islands.

Mischaracterised
Last week, the court heard how the former Fisheries Minister kept her top officials and the aquaculture industry in the dark before making her decision to shut down salmon farms in BC’s Discovery Islands.

Describing the decision by Jordan as irrational, unjustified and lacking in procedural fairness, the court was told that BC’s major salmon farming companies believe the former minister mischaracterised the science that was before her when she made the call to shut the farms last December.

“DFO itself was unaware the Minister was considering a ban on fish transfers and a prospective refusal of all aquaculture licences from (June) 2022 until mere days before the minister’s decision,” said a submission to the court by Mowi Canada West, which operates 15 of the 19 salmon farms in the Discovery islands.

Explain the criteria
Allison Webb the former Director of DFO’s Aquaculture Management Division (“AMD”) stated that she was not aware of the possibility of a decision on a transfer ban or a prospective refusal of all licences after June 2022, said Mowi in its court submission.

“I didn’t have any of that knowledge to advise Mowi” and “to the best of my knowledge we were consulting on the re-licensing of these farms, so I didn’t consider that other alternative related to that,” said Webb, according to Mowi.

“Even after the decision, the current Director of AMD admitted that she couldn’t explain the criteria by which the Applicants’ Transfer Licence applications were being denied, stating, “I can’t specifically tell the companies exactly what it takes to be socially acceptable for the minister’s decision” because “[p]ersonally, I – I don’t know.”

In support of closure
Arguing in support of Jordan’s decision are lawyers from Ecojustice that are representing the David Suzuki Foundation Georgia Strait Alliance, Living Oceans Society, Watershed Watch, and biologist Alexandra Morton.

According to Ecojustice, the decision is supported by a precautionary approach to the management and protection of wild salmon.

Legal representatives of a coalition of First Nations involved in the case are also registered to appear. The phase-out was ordered after consultations with seven First Nations with territory in the Discovery Islands raised concerns about the impact of salmon farms on declining wild salmon stocks, according to an Ecojustice press release.

More to come
Lawyers representing the other aquaculture producers operating in the area, including Cermaq and Grieg will also be arguing in opposition to the decision in the hearing. Cermaq and Grieg also requested a court intervention on the decision.

The farmers contend that Jordan’s decision will see BC losing $390 million in annual economic output with $87 million less in annual salaries and benefits, and 1,535 fewer jobs, mainly in coastal communities of BC.