Sea-lice researcher Alexandra Morton says she still wants to proceed with her private prosecution against a fish farm operating near her home in the Broughton Archipelago. But she won't have her day in court any time soon because the B.C. Ministry of Attorney General seized control of the case and, on August 9, announced that the prosecution had been stayed. The proceedings have been discontinued, according to a government news release.
Under common law, anyone has the right to launch a private prosecution against a person or organization that violates the Criminal Code or other statutes that have penalties for violations. On June 7, 2005, Morton filed charges under Section 55 of the Fishery (General) Regulations against the Burdwood fish farm, then owned by Heritage Salmon Limited, alleging that it had released sea lice into a fish habitat without a licence. Anyone releasing fish””and sea lice are defined as fish under the Fisheries Act””must have a licence. Morton also laid charges against the federal and provincial governments.
“The attorney general's staying of the charges was devastating,” Morton told the Georgia Straight in a recent phone interview. “I really feel it's the best thing all around for the industry””for the public, for all involved””just to deal with this situation and stop sweeping it under the carpet.”
Because the B.C. government was one of the parties charged in the case, the attorney general's ministry appointed a special prosecutor, Vancouver lawyer William B. Smart. According to the criminal justice branch, there are two components to the charge-approval process: there must be a “substantial likelihood of conviction” , and the case can only proceed if it is considered to be in the “public interest” .
Smart concluded that it was in the public interest to pursue the case, according to a recently released summary of his report. However, Smart decided that there was not a “substantial likelihood” of conviction because the language in Section 55 deals with the “release” of fish.
“Mr. Smart has reasoned that the 'release' offence is not focused on the circulation or movement of live fish within their ordinary habitat but rather, their introduction into a foreign environment,” the summary stated. “As such, the movement of sea lice from fish-farm pens into adjacent waters would likely not qualify as a 'release'. For sea lice existing in their natural environment, it is not apparent that crossing the open-pen nets amounts to introducing a fish into a new, foreign environment.”
A disappointed Morton said she has spent six years observing the “alarming impacts” of sea lice on local pink-salmon stocks and has written five papers on the subject. She said another fish farm has been approved in the Broughton Archipelago, suggesting to her that “there is no glimmer of the precautionary principle here.”
“I noted in Mr. Smart's appraisal of whether or not we could find them guilty of releasing sea lice, he used the word 'likely',” Morton said. “?'They likely would not be able to.' And, personally, I would like them to give the case back to me and let me argue it on my own dime. I understand that they don't want to spend the public's money for Mr. Smart. He's got to be a high-paid lawyer.”
Morton found solace in one aspect of Smart's evaluation. The special prosecutor retained Frederick Whoriskey, a scientist and vice president of the New Brunswick–based Atlantic Salmon Federation, to conduct a detailed review. Whoriskey's report, which is available at www.straight.com/, concluded that Morton's evidence “substantially supports” four of her allegations.
According to the document, “The Burdwood fish farm had been producing millions of parasitic sea lice every month during the spring of 2004 and 2005” ; “These parasitic shellfish are being released, i.e., allowed to move or flow freely from the fish farms into open waters, through the open-net pens” ; “The wild salmon smolts passing near the open nets were being infected by the sea lice” ; and “The wild pink salmon smolts are vulnerable to sea-lice infection, and as a result many have died.”
Whoriskey was less clear on whether or not this had or will have “a significant adverse effect on the pink salmon population in the area” . In his report, Whoriskey wrote that Morton has demonstrated that the number of lice is higher on smolts close to the fish farms and lower on smolts the farther they are from the fish farms. However, Whoriskey said that a correlation does not necessarily imply a cause and effect””although nothing else has been proposed to explain this situation.
“Having reviewed the evidence specific to the Broughton Archipelago, additional studies available in the scientific literature on the impacts of sea lice upon salmonids worldwide, having visited the Broughton Archipelago, and based on my past work experience, I am of the opinion that sea lice in the Broughton Archipelago are infecting and killing pink salmon,” Whoriskey wrote.
Morton said Whoriskey's conclusions echo what scientists have said for years about open-net fish farms in Ireland, Norway, and Scotland. Meanwhile, a staunch opponent of fish farming, broadcaster Rafe Mair, suggested in a widely distributed e-mail that Whoriskey's paper clears the way for a class-action suit against fish farmers.
In a criminal case, the Crown must prove its case “beyond a reasonable doubt” . The threshold is on the balance of probabilities in a civil suit.
Morton said she would not be a good representative plaintiff in a class-action lawsuit against fish farmers and governments because she would have trouble demonstrating a financial loss from the disappearance of wild salmon. She added that it would require someone with “guts” , who can prove loss of livelihood as a result of salmon farming's impact on wild-salmon stocks.
“Salmon farming doesn't need to kill them,” she said. “It just needs a better container.”
The executive director of the BC Salmon Farmers Association, Mary Ellen Walling, did not return a phone call by the Straight's deadline.