The effects of open net pen fish farms on wild Pacific salmon have been well-researched and documented for decades. Open net pen fish farm companies have had extensive notice that a transition to modern sustainable aquaculture, through land based closed containment, was coming.

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Timeline

In 2012, Mr. Justice Cohen concluded that:

….net-pen salmon farming in the Discovery Islands poses a risk of serious harm to Fraser River sockeye through the transfer of diseases and pathogens.

…..if, by that date, [September 30, 2020] DFO cannot confidently say the risk of serious harm is minimal, it should prohibit all net-pen salmon farms from operating in the Discovery Islands. [1]

In 2015, Mr. Justice Rennie found that:

• the Minister had unlawfully sub-delegated to industry licensees his authority to stock farms; and
• DFO had not adhered to the precautionary principle, saying that the arguments DFO made “are inconsistent, contradictory and, in any event, fail in light of the evidence”.^[2]

In 2018, the Commissioner for the Environment and Sustainable Development stated that DFO:

• “had not made sufficient progress in completing risk assessments for key diseases, which were required to assess the effects of salmon farming on wild fish”;^[3]
• “did not sufficiently enforce its Aquaculture Activities Regulations to minimize harm to wild fish”;^[4] and
• “was vulnerable to claims that it prioritized the development of the aquaculture industry over the protection of wild fish”.^[5]

In 2018, Mr. Justice Manson found that DFO’s management of fish transfers of “Atlantic salmon smolts to aquaculture facilities involves no supervisory control or objective criteria with respect to testing for PRV or HSMI”^[6] and that ‘Namgis First Nation had:

“…established a serious risk of irreparable harm on a number of fronts: that fishery being at serious risk, given the depleted wild salmon populations in the Asserted Territory; and the recent science establishing the connection between PRV and HSMI and the resulting risk of disease and mortality. All of this is proof of a real and non-speculative likelihood of irreparable harm to [‘Namgis]”.^[7]

In 2018, the Independent Panel on Aquaculture Science also concluded that DFO was not up to the task of evaluating evidence and science in policy decision-making without bias and recommended that DFO appoint a Departmental Science Advisor and establish an External Advisory Committee on Aquaculture.^[8]

In June 2018, the Premier of British Columbia announced:

“Effective June 2022, the Province will grant Land Act tenures only to fish farm operators who have satisfied Fisheries and Oceans Canada (DFO) that their operations will not adversely impact wild salmon stocks, and who have negotiated agreements with the First Nation(s) in whose territory they propose to operate.”[9]

In December 2018, the Premier announced that, due to the lack of consent for their ongoing operations from ‘Namgis First Nation, the Kwikwasut’inuxw Haxwa’mis First Nations and Mamalilikulla First Nation, fish farms in the Broughton Archipelago would be phased out through an orderly transition of 4 to 5 years.[10]

In February 2019, Madam Justice Strickland, of the Federal Court, quashed DFO’s previous policy not to test for PRV or prohibit introductions and transfers of fish infected with PRV on four independent grounds:

1. DFO failed to reasonably interpret its core mandate under the Fisheries Act—the protection and conservation of fish.
2. DFO did not adhere to the precautionary principle—to anticipate, prevent, and attack the causes of environmental degradation and not use scientific uncertainty to excuse inaction.
3. DFO breached its constitutional duty to consult and accommodate ‘Na
4. In a finding that beggars belief, DFO failed to consider the risk to wild Pacific salmon when regulating PRV, the virus responsible for one of leading causes of death in fish farms globally.

In March 2020, the Canadian Science Advisory Secretariat (CSAS) released its report on nine populations that COWESIC had designated as threatened or endangered.  CSAS found that to provide “the best opportunity for survival”, and to allow those designatable units to reach designated recovery targets, all sources of harm should be reduced to the “maximum extent possible” for all nine of those designatable units: Early Stuart; Bowron; Weaver; Birkenhead; Portage; Late Stuart; Upper Barriere; Taseko; and Widgeon.[11]

In July 2020, Mr. Justice Pelletier, writing for the Federal Court of Appeal, held that DFO breached the duty to consult with respect to a policy of general application, issuing stocking licences in reliance on that policy also breach the duty to consult: “It would offend common sense to hold otherwise.”[12]

Given these events, all stakeholders following this policy space have been aware that significant policy change was coming for DFO and the open-net pen industry. The Prime Minister delivered that course correction in his mandate letter of December 13, 2019, charging the Minister to:

Work 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.[13]

Moreover, the September 30, 2020 deadline Mr. Justice Cohen set would be the first step in that course correction the Prime Minister mandated.

Despite the the clarity of the policy direction, Mowi, Cermaq and Grieg decided to take the business risk of growing smolts even though they did not have licences to put those fish in the water.  Now, they claim that in acting to protect and conserve wild Pacific salmon, and to prevent the sterilization of multiple First Nations’ Aboriginal right to fish, the Minister acted recklessly.  They want to suspend the Minister’s decision at the expense and risk of wild fish and the Indigenous Nations they claim to respect.  They want someone else to insure their risk.

This has happened before.  In 2004 Mowi wanted to stock the Church House fish farm with Atlantic salmon, despite the original licence being for Pacific, Chinook salmon.  DFO amended the licence without consulting Homalco First Nation.  Homalco filed an application for judicial review, and sought an injunction to prevent the stocking Mowi (then Marine Harvest) was trying to push through over the Christmas holidays.

On Christmas Eve, 2004, Mr. Justice Pitfield granted the injunction and prevented the stocking until the Court had made its decision in the judicial review.  Mowi asked the Court for an “undertaking in damages”.  In effect, Mowi asked the Court to make Homalco put up money to compensate Mowi for fish it might have to cull if Homalco lost the judicial review.  Mr. Justice Pitfield saw through it:

“Marine Harvest appears to have made a business decision, as it was perfectly entitled to do, to proceed with the production of smolts for which it did not have homes or for which it would not have had a home in the absence of the licence amendment.  It was fully aware of the circumstances under which it was able to operate its business.  In those circumstances, it is not appropriate, in my judgment, for the Band to be required to post a bond.”[14]

The Court saw through such tactics at the time, as observers should now: no one was responsible for the costs of Mowi’s bad decision, but Mowi.

For companies engaged in industrial scale agriculture, culling is a cost of bad management.  That is especially true when your industrial feedlots have no barrier between them and the ecosystem wild fish depend on:

• In August 2007, Chile’s National Fishing Service (SERNAPESCA) ordered four fish farms in the Chiloé region to cull all fish infected with Infectious Salmon Anemia (ISA).^[15]
• In 2012, Mainstream (now owned by Cermaq) culled 500,000 Atlantic salmon at its Dixon Bay farm north of Tofino, BC, after fish at the facility tested positive for infectious hematopoietic necrosis (IHN).^[16]
• In 2013, to protect the young wild salmon migrating through the fjords to the open sea and past fish farms which could not control sea lice, Norway ordered 2 million farmed salmon culled.^[17]
• In 2018, Washington State refused permits to restock with fish infected with PRV. Cooke Aquaculture Pacific culled 800,000 Atlantic salmon in May 2018 and 800,000 Atlantic salmon in December 2018.^[18]
• In April 2020, Mowi culled 450,000 fish in Newfoundland and Labrador.^[19]

These are the culls of which we are aware because they were reported in the media. While just a representative sample, these repeated culls demonstrate that culling farmed fish is the cost of doing business – it’s the price fish farms pay for poor animal husbandry and poor business decisions.

They took a business risk by growing fish when they didn’t have licences for the fish farms to put those fish into.  The fish farming multinationals in question conducted their business as if they had a right to stock 100% of their farms 100% of the time – regardless of the risk to wild salmon, or Aboriginal rights, or to licensing obligations.

They didn’t have that right.  They had a privilege to apply for future aquaculture licences and stocking licences.

The Minister can only grant those licences if it is in the proper management and control of the fishery to do so.  The proper management and control of the fishery means prioritizing the conservation and protection of fish and preserving Aboriginal rights. It means not letting populations go extinct and extinguishing Aboriginal rights that have been practiced for millennia.

The fish farming multinationals took a business risk, hoping for profits.  They wanted to gamble with populations of wild salmon. They bet wrong. They should have hedged their bets by reducing capacity or preparing for a contingency that everyone saw coming – a transition to modern sustainable aquaculture through land-based closed containment. But, they didn’t.

References

[1] The Uncertain Future of the Fraser River Sockeye, Volume 3, page 25.

[2] Morton v. Canada (Fisheries and Oceans), 2015 FC 575, para. 44.

[3] 2018 Spring Reports of the Commissioner of the Environment and Sustainable Development to the Parliament of Canada Report 1 – Salmon Farming, para. 1.17.

[4] Ibid., para. 175.

[5] Ibid., para. 1.49.

[6] ‘Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2018 FC 334, para. 92.

[7] ‘Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2018 FC 334, para. 93.

[8] Report of the Independent Expert Panel on Aquaculture Science, page 14.

[9] See press release here: https://archive.news.gov.bc.ca/releases/news_releases_2017-2021/2018AGRI0046-001248.htm.

[10] See press release here: https://news.gov.bc.ca/releases/2018PREM0151-002412.

[11] Recovery Potential Assessment For Fraser River Sockeye Salmon (Oncorhynchus Nerka) – Nine Designatable Units – Part 1: Probability Of Achieving Recovery Targets, Science Advisory Report 2020/012: http://publications.gc.ca/collections/collection_2020/mpo-dfo/fs70-6/Fs70-6-2020-012-eng.pdf.

[12] ‘Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122, para. 38.

[13] https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-fisheries-oceans-and-canadian-coast-guard-mandate-letter

[14] Blaney et al. v. Minister of Agriculture et al., 2004 BCSC 1764, para. 76.

[15] The Fish Site: https://thefishsite.com/articles/chilean-salmon-farmers-told-to-cull-isa-infected-fish.

[16] Vancouver Sun: https://vancouversun.com/news/fish-farm-wont-wait-for-cfia-will-go-ahead-and-cull-500000-fish.

[17] Salmon-Trout: https://salmon-trout.org/2013/10/09/norway-orders-slaughter-of-two-million-sea-lice-infested-farmed-salmon-in-order-to-protect-wild-salmon/.

[18] Seattle Times: https://www.seattletimes.com/seattle-news/environment/fish-farmer-destroys-800000-juvenile-atlantic-salmon-due-to-disease-second-purge-in-past-year/ & https://www.fishfarmingexpert.com/article/cooke-culls-800000-fish-after-exotic-prv-found/

[19] Fish Farmer Magazine: https://www.fishfarmermagazine.com/news/mowi-to-cull-450k-fish-after-isa-outbreak/.