“The only evidence before me is that today, salmon aquaculture in B.C. poses no more than a minimal risk to wild salmon” Federal Court Judge, Mr. Justice Panagiotis Pamel

Court allows baby salmon transfer in Discovery Islands

“The only evidence before me is that today, salmon aquaculture in B.C. poses no more than a minimal risk to wild salmon” Federal Court Judge,  Mr. Justice Panagiotis Pamel

By Fabian Dawson

The Federal Court has ruled that fish farmers in BC’s Discovery Islands can continue stocking their ocean pens with baby salmon while they challenge Ottawa’s decision to remove them from the area by next June.

The court also dismissed claims that the salmon farmers should have known they would not be able to restock the pens after the sudden decision to oust them from the Discovery Islands by Fisheries Minister Bernadette Jordan last December, saying there was nothing to suggest that farmers could have anticipated “an overnight prohibition on the issuance of (fish) transfer licences.”

“The only evidence before me is that today, salmon aquaculture in B.C. poses no more than a minimal risk to wild salmon” said  Mr. Justice  Panagiotis Pamel, in granting the injunction sought by Mowi Canada West Inc., Cermaq Canada Ltd, Grieg Seafood BC Ltd. and 622335 BC Ltd.

The injunction is part of a broader application for a judicial review of Minister Jordan’s decision to remove the farmers, who have operated 19 aquaculture sites in the Discovery Islands for the last 35 years with minimal impact on wild stocks, according to nine-peer reviewed scientific studies by the Canadian Science Advisory Secretariat (CSAS).

“Our Federal Court application for a Judicial Review of the Minister’s December 17, 2020 order to not renew our licenses for Hardwicke, Philips Arm, and other sites in the Discovery Islands area continues, but for now we do not have to cull any more fish and dozens of jobs are secure for at least a while longer,” said Dr. Diane Morrison, Managing Director of Mowi Canada West.

“This is a great relief to our employees and communities as it allows us, in the short term, to continue growing these fish,” she said.

Mowi, which operates most of the sites in the area, had argued that if the injunction was not granted, it will suffer significant financial losses because it will not be able to transfer 1.18 million salmon smolts to its Discovery Islands sites at the required time.

As there are no other sites to which it could transfer the fish, they will need to be culled, with the resulting losses of about $26 million, including $11,204,730 being what has been spent on the fish to date, $14,380,000 in expected future net profit upon their sale, as well as approximately $480,000 to cull the fish, including the cost of medication, transport, and disposal.

Mowi also argued that it will have to lay off at least 78 full-time equivalent [FTE] employees, and will have to cancel or significantly reduce its commitments to local suppliers and contractors.

In its entirety, Minister Jordan’s unexpected Discovery Islands’ decision will see BC losing almost $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.

Prior to the Discovery Islands’ decision, BC’s salmon farmers announced they were planning to directly invest $1.4 billion in innovation, new technology and infrastructure, to boost Canada’s post pandemic recovery. The investments through 2050 would create almost 10,000 new jobs and add a cumulative $44 billion in new economic activity to propel Canada’s Blue Economy.

Mr. Justice Pamel said if he did not grant the injunction pending the judicial review, the harm to the fish farmers as well as their employees, their families and other businesses in the community, in particular First Nations businesses, will be real and substantial.

“If (they) are not permitted to proceed with the transfer of fish they require to undertake as part of their operations; in these most trying of times, given how Canadians are looking to navigate the realities of the global pandemic, these factors outweigh the public interest factors,” he said.

The Department of Fisheries and Oceans (DFO) had earlier said the decision to phase out the fish farms in the Discovery Islands was made by Minister Jordan after consultation and consideration of many factors.

“While the culling of any fish would be unfortunate, industry leaders would have known for months prior, if not years, that a final decision would be made by December 2020 regarding the future of the farms. The Cohen Commission recommended this over a decade ago, and the licenses in that area were only ever renewed on a yearly basis for that reason,” DFO said.

The 2012 Cohen Commission actually recommended that the federal fisheries minister should prohibit net-pen salmon farming in the Discovery Islands by September 30, 2020, unless satisfied that such farms pose at most a minimal risk of serious harm to the health of migrating Fraser River sockeye salmon.

Addressing the Cohen Commission report into the decline of salmon, the court said : “There is nothing to suggest that the Minister would necessarily have found in 2020 that aquaculture sites would pose more than a minimal risk of harm to wild sockeye salmon populations, and in September 2020 DFO (Department of Fisheries and Oceans) in fact determined that they did not.”

“The Minister (also) argues that we can infer that the First Nation communities that were consulted did not want to see any further transfer of new fish within the existing pens.

“However, another reading of the evidence would suggest that the concern regarding the continued issuance of transfer licences during the phase-out period was not first raised by the First Nation communities, but rather emanated from a suggestion from the Minister. I suspect further clarification is required,” the judge said.

In addition to ignoring the science, Minister Jordan also rebuffed the recommendations by her deputy minister  for a more coordinated approach to the planned phase out in the Discovery Islands.

Prior to granting the injunction yesterday, the Federal court rejected attempts by anti-fish farm activist, Alexandra Morton, to influence its pending decision on the future of salmon farms in BC’s Discovery Islands.

In a scathing ruling that challenges the on-going media adulation of her new book, Judge Mandy Aylen said that “Morton’s proposed affidavit contains untested hearsay evidence, contains improper opinion evidence under the guise of being factual evidence.”

The case management judge agreed with the fish farmers, that Morton’s proposed affidavit “constitutes an attack on the science presented by the Department of Fisheries and Oceans and goes far beyond providing general background information” to assist the court.

Image of Justice Panagiotis (Peter) Pamel courtesy of Federal Court of Canada

Read the entire judgment