Ecojustice Blog – Nature Posted on April 17, 2018 (updated: April 19, 2018)

‘Namgis First Nation launches parallel case to protect wild salmon

Margot VentonLawyer
Kegan Pepper-SmithLawyer
Chinook Salmon by Oregon State University
Photo by Oregon State University, via Flickr

The ‘Namgis First Nation is headed to court in an effort to stop Marine Harvest from stocking salmon pens on the nation’s territory without first testing for piscine reovirus (PRV). Meanwhile, Ecojustice is locked in a parallel battle to ensure the health of wild salmon.

Chinook salmon are sometimes called “spring salmon,” because they embark on their end-of-life return to freshwater earlier in the year than other salmon species.

This year, while the wild Chinook return to their birth waters, farmed Atlantic salmon bound for Marine Harvest’s Swanson Island fish farm are on a journey of their own, from land-based hatcheries to open-net pens in the ocean.

For decades, the fish farm company has transferred stocks of young smolt into open-net pens in the territory of the ‘Namgis First Nation without being required to first testing for PRV — a highly contagious virus found in 80 per cent of B.C. farm salmon.

Now, the ‘Namgis are going to court in a bid to prevent the Minister of Fisheries and Oceans from approving transfers of PRV-infected fish.

On March 6, the nation filed a Notice of Application seeking judicial review of the minister’s policy of granting transfer licenses without requiring testing for the virus. They also asked for an injunction to prevent Marine Harvest from transferring nearly 1,000,000 smolt into the pens this season.

The transfer policy at the heart of the case is the same one that we are fighting in our own lawsuit on behalf of independent biologist Alexandra Morton.

Unfortunately, the Court denied the injunction on March 23, paving the way for Marine Harvest to transfer the smolt into pens in ‘Namgis territory.

But the overarching case, which deals with the transfer policy itself, will proceed. This means that the Court could still rule that further transfers of PRV-infected fish are illegal.

PRV and HSMI — a “cause and effect” relationship

Researchers have found that PRV has a “cause and effect” relationship with heart and skeletal muscle inflammation, or HSMI, a deadly disease that has also been found in farmed salmon in B.C.

Our fear — shared by our client, Alex, and the ‘Namgis First Nation — is that it is only a matter of time before HSMI is found in wild Pacific salmon.

That is why it is so important that government require farmed salmon be tested for PRV before allowing them to be transferred into open-net pens. This is especially true when the pens lie along migratory paths of dozens of wild salmon populations, as is the case for the Swanson Island farm.

This is not just a matter of opinion.

In fact, the Fishery (General) Regulations explicitly states that the minister may only issue a license to release or transfer fish if they “do not have any disease of disease agent that may be harmful to the protection and conservation of fish.”

Despite this, the minister continues his illegal policy and practice of issuing licenses allowing farmed salmon to be transferred into net pens in the ocean without being tested for PRV.

Multiplying the pressure on Minister LeBlanc and Marine Harvest

On behalf of Alex, we launched our Federal Court case opposing this practice back in the fall of 2016.

A year and a half later, we are buoyed by this new case the ‘Namgis have put forth.

The ‘Namgis’ suit multiplies the pressure on the government and Marine Harvest and affirms our position that the minister’s policy is unlawful. It also draws on our 2015 victory with Alex, when the Federal Court confirmed the Department of Fisheries and Ocean has a duty to protect and conserve wild fish in the marine environment.

The ‘Namgis case also raises other critical issues beyond the scope of our case with Alex, including that the Federal government failed to meet its constitutional obligation to consult and accommodate the ‘Namgis, and failed to consider how its aquaculture policies influence the process of reconciliation in Canada.

In their notice of application, the ‘Namgis First Nation states that Minister LeBlanc’s PRV policy and any licenses issued under it that allow Marine Harvest to transfer fish to its Swanson Island farm, threaten the process of reconciliation in Canada.

The notice of application also says that, in failing to consult or seek the ‘Namgis’ consent for transfers, the Canadian government has acted in direct contradiction of its responsibilities under the United Nations Declaration on the Rights of Indigenous Peoples.

‘We are fighting the same battle’

Since time immemorial, salmon have played a central role in ‘Namgis culture and diet.

In December 2017, ‘Namgis elder Chris Cook told the Victoria Times Colonist that community members used to eat a hundred salmon each year — so much that it was comparable to the way that other cultures rely on potatoes as a dietary staple. But by the time the article was written, Cook said the number was more like ten a year.

“It’s no secret that our people would just not exist without the salmon.” ‘Namgis Hereditary Chief Ernest Alfred is quoted as saying in the same article. “When we say we’re protecting our salmon, we’re actually protecting our home.”

For our client, Alex, the fight is also about more than individual fish.

Salmon are a crucial part of coastal ecosystems. They feed more than 100 species, including endangered killer whales and grizzlies, and they even provide nourishment for trees.

Like the ‘Namgis, we know that Alex, the Ecojustice team, and our amazing community of supporters, are committed to doing everything we can to ensure that the wild salmon that sustain cultures, ecosystems and economies can thrive.

As Alex put it, “We are both fighting the same battle, but from different perspectives.”

Photo by Oregon State University, via Flickr. Image obtained under Creative Commons. 

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