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Lawyers say court decision victory precautionary principle
Tue Feb 12, 2019 11:09am

Lawyers say fisheries decision important victory for precautionary principle in resource management
Tuesday, February 12, 2019 @ 9:21 AM | By Ian Burns

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Morton v. Canada (Fisheries and Oceans) 2015 FC 575

A Federal Court justice has ordered the federal Department of Fisheries and Oceans (DFO) to develop a new policy on farmed salmon after finding the department was deficient in not testing for a virus that may cause heart and muscle inflammation before releasing the fish into the wild.

Justice Cecily Strickland ruled in favour of the plaintiffs, biologist Alexandra Morton and the ‘Namgis First Nation, who claimed the fish were not properly screened for piscine orthoreovirus (PRV), which has been linked to heart and skeletal muscle inflammation (HSMI). According to court documents, the government did not test for PRV or HSMI because it felt there was no significant risk to the fish stock.

Under s. 56 of the Fishery (General) Regulations (FGR) under the Fisheries Act, the minister of Fisheries and Oceans can issue a licence to transfer fish into the wild only if they don’t have a disease and will not adversely impact the size of the stock. According to Justice Strickland, the Ministry’s interpretation of s. 56 “appears to impose a threshold or ‘level’ of potential harm that essentially permits any transfer of fish having a disease or a disease agent unless the transfer places genetic diversity, species or conservation units of fish at risk.”

“This is not consistent with the [federal] wild salmon policy definition of conservation, and it is unreasonable,” she wrote. “[The wild salmon policy] speaks to the protection of the genetic diversity and species of wild salmon and their ability to sustain biodiversity and reproduce. The Minister’s interpretation … in effect, defeats the actual purpose of, and conflicts with, that definition by incorporating a level or magnitude of potential harm at the species or conservation unit level before s. 56(b) will be triggered to preclude a transfer.”

Justice Strickland also held DFO’s position on the tests ran contrary to the “precautionary principle,” which says if there is a risk of serious or irreversible harm, a lack of scientific certainty “should not be used as a reason for postponing or failing to take reasonable and cost-effective conservation and management measures to address that risk.” In Morton v. Canada (Fisheries and Oceans) 2015 FC 575, which also involved Alexandra Morton, former Federal Court Justice Donald Rennie found that s. 56 of the FGR must reflect that principle.

“The Minister’s interpretation permits harm to genetic diversity, species or ecosystem of a stock or conservation unit to the point where a stock or conservation unit cannot sustain biodiversity and the continuation of evolutionary and natural production,” she wrote. “It is difficult to see how this is consistent with the precautionary principle.”

In addition, Justice Strickland found the government had breached its duty to consult with the ‘Namgis when it failed to respond to the First Nation’s request for consultation concerning the PRV policy.

“The PRV policy decision represents a discrete question of science surrounding fish health. Such narrow issues would not, in the normal course, be likely to attract a duty to consult,” she wrote. “Here, however, the contemplated Crown action, the continuation of the PRV policy, has the potential to adversely affect ‘Namgis’ claimed Aboriginal rights. ‘Namgis raised its concerns with the continuation of the PRV policy based on what it perceived to be novel science which had not been captured in prior general consultations concerning fish health and aquaculture licensing.”

Justice Strickland then quashed the government’s PRV policy, but suspended the decision for four months to allow DFO to respond. The decision was released Feb. 4 (Morton v. Canada 2019 FC 143).

Kegan Pepper-Smith, a lawyer with Ecojustice who served as counsel for Morton in the case, called the decision an important step on interpretation of the precautionary principle.

“The language of the statute doesn’t say the minister must comply with the precautionary principle but Justice Strickland confirmed s. 56 embodies it and therefore the minister’s interpretation of that section must be informed by that principle, and any policies made under that interpretation must also embody it,” he said. “She did say that the precautionary principle doesn’t guarantee any substantive outcome, but hopefully what the minister does is take that decision and that language to heart in setting policies going forward.”

In a statement, Minister of Fisheries and Oceans Jonathan Wilkinson said the department is currently reviewing the decision. He added the government understands “that a strong, science-based approach to regulating the aquaculture industry is essential and that is why we have and will continue to conduct extensive research which informs our policies and regulations.”

“We support a sustainable and responsible management of our stocks, informed by sound science which is why we announced in December, a set of initiatives to ensure our aquaculture sector is economically successful and environmentally sustainable,” he said.

Jocelyn Stacey, who teaches Canadian environmental and administrative law at UBC School of Law, said the decision is important in “what is now becoming a series of decisions by the Federal Court that really embraces the idea of the precautionary principle.”

“Canadian courts have been a bit reluctant to interpret and to give some purchase to the precautionary principle,” she said. “And so, this is the second Morton decision in which it has been really determinative of the issue in terms of what is the appropriate interpretation of the regulations. The fact that the court is really willing to interpret environmental law in accordance with the precautionary principle is a really important development.”

Stacey said the decision shows there is a clear message coming from the courts that decisions around aquaculture must be rigorous.

“[DFO] has to really embrace the fact that they are the frontline regulator of an important public policy problem which contains these risks, yet to be fully understood around aquaculture,” she said. “DFO seems to be a little bit slow in getting that message. Whatever the new policy becomes, it has to take seriously the fact that the evidence being revealed around PVR and HSMI suggests increased mortality and morbidity, and ignoring that trend and not taking steps to test fish is really problematic.”

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