The Federal Department of Fisheries and Oceans (DFO) regulates Canadian fish farms and is also mandated to protect wild fish and their habitat. This court case was about the DFO’s decision to issue licences that let aquaculture companies decide whether tank-raised juvenile salmon that carry viruses or other pathogens are safe to release into open-net pens in the Pacific Ocean.

In 2013, biologist Alexandra Morton approached us with allegations that aquaculture company Marine Harvest Inc. had transferred Atlantic salmon infected with piscine reovirus (PRV) into net pens located along the Fraser River salmon migration route. Scientists have identified PRV as the most likely cause of Heart and Skeletal Muscle Inflammation (HSMI), a severe disease that affects the muscles and heart of salmon. The disease HSMI has cause widespread harm in farm fish in first Norway and then Scotland – thus far there have been no reported outbreaks of HSMI in Canada.

On behalf of our client, we argued that the DFO, as a government body with responsibility for ensuring the health of wild fish stocks, must take responsibility for determining when it is safe to transfer fish into net pens in the open ocean rather than off-loading that responsibility to fish farm operators. We also argued that the law clearly did not allow anyone to put fish in the ocean carrying diseases or disease agents that could harm the conservation and protection of wild fish.

On May 6, 2015, the Federal Court struck down the aquaculture licence conditions that allowed Marine Harvest to decide whether to transfer fish infected with viruses into open pens in the ocean. The Court rejected DFO’s argument that its licence conditions were based on sound science about HSMI or other fish diseases, finding there was no evidence that DFO relies on science in issuing aquaculture licences. Instead, after noting that “the weight of the expert evidence before this Court supports the view that PRV is the viral precursor to HSMI,” the Court accepted that transfers of farmed salmon infected with viruses like PRV may be harmful to the protection and conservation of fish – and thus contrary to the law. DFO and Marine Harvest have since appealed the decision.

The Department of Fisheries and Oceans and Marine Harvest appealed the 2015 decision, but adjourned the appeal days before the hearing, in May 2016, when a federal scientist announced that HSMI had been detected on a fish farm in B.C. Despite this recently published research, the Minister refuses to enforce testing for farm salmon prior to transfer into sea pens on wild salmon migration routes.

Why is Ecojustice involved?

Ecojustice is committed to using the law to protect the marine environment. We believe that the DFO must show leadership and live up to its mandate to protect wild salmon and promote sustainable fisheries practices. Governments have to work in the public interest to balance the needs of industry with ecological considerations and must proceed with caution when making decisions that could have serious environmental impacts, such as the introduction of a new disease into the marine environment.

What does this win mean?

With this decision, the Court sent a clear message confirming DFO’s duty to protect and conserve wild fish and the marine environment. As a result of this decision, Marine Harvest will no longer be able to independently decide when it is safe to transfer fish into open pens in the Ocean.

This decision is also important because it affirms the precautionary principle, which states that government must err on the side of caution in environmental decision-making. In its reasons for judgement, the Court noted that while the causal relationship between PRV and HSMI has not been conclusively established, the evidence before the Court demonstrates that there is a body of credible scientific study, conducted by respected scientists in different countries, establishing a causal relationship between PRV and HSMI. Based on the evidence provided to the court, the Judge stated that “it would be an unreasonable inference to draw from the evidence that it will not appear in farmed Atlantic salmon on the Pacific Coast.” In effect, the Court says that DFO is obliged to look at the available evidence and err on the side of caution when making decisions that could affect the health of wild fish.