It was a case that, as the Federal Court put it, had “many red herrings”.
In the end, the judge homed in on the real issue, with a ruling favourable to the long-term survival of the iconic wild Pacific salmon.
A federal court has nullified rules that allowed fish farms to transfer diseased stock to open pens in the ocean.
Judge Donald Rennie on May 6 rendered the decision on a petition for judicial review that was brought forward by Ecojustice lawyers on behalf of biologist Alexandra Morton.
Morton lives in the Broughton Archipelago, where many fish farms on the B.C. coast are found.
In March 2013, Marine Harvest Canada Inc., which has licence from the minister of fisheries and oceans, transferred young salmon or smolts from its hatchery to its Shelter Bay fish farm.
Not too long after in June 2013, the fish tested positive for piscine reovirus (PRV).
Citing expert evidence, Judge Rennie wrote that PRV is the viral precursor to heart and skeletal muscle inflammation (HSMI), an infectious disease found in farmed salmon.
“First identified in Norway in 1999, HSMI is now prevalent throughout Norwegian salmon farming operations. HSMI was discovered in Scotland in 2005, and more recently in Chile and Canada,” Rennie noted.
The judge went on to point out, “Although HSMI has not been found in wild salmon, PRV is now found in 14% of the wild salmon population of the Norwegian coast.”
In his ruling, Rennie struck down two conditions in Marine Harvest’s aquaculture licence for being contrary to the Fisheries (General) Regulations (FGRs).
One of these conditions allows the licensee to transfer fish if the stock “shows no signs of clinical disease requiring treatment”.
“The condition contradicts the plain language of section 56(b) [of the FGR],” the judge wrote. “Section 56(b) stipulates that no transfer may take place if they have ‘any disease or disease agent’ that may be harmful to the transfer of fish. The licence condition, in contrast, allows transfers unless the fish show signs of clinical disease requiring treatment.”
The other condition allows the licensee to do a transfer of fish from a stock with disease if the facility veterinarian deems it as low risk.
But according to Rennie, “This licence condition undoubtedly conflicts with section 56(b) of the FGRs and the regulatory duty imposed on the Minister to allow transfer only where the fish ‘do not have any disease or disease agent that may be harmful to the protection and conservation of fish’.”
Rennie suspended his judgment for four months to allow Fisheries and Oceans Canada to fix the rules.
In his ruling, Rennie also recalled the report made by Bruce Cohen following the former B.C. Supreme Court justice’s inquiry into the decline of the sockeye salmon in the Fraser River.
“Significantly,” Rennie wrote, “Justice Cohen found that there is some risk posed to wild sockeye salmon from diseases on fish farms and ensuring the health of wild stocks should be ‘DFO’s [Fisheries and Oceans Canada] number one priority in conducting fish health work’.”