Court dismisses First Nation bid to block fish farms
VANCOUVER — A B.C. First Nation has lost its court bid to prevent the restocking of an open-net salmon farm in its traditional territories off northern Vancouver Island.
The ’Namgis First Nation had asked the Federal Court for an injunction against Marine Harvest that would have blocked the company from transferring up to one million juvenile Atlantic salmon, known as smolts, to its Swanson Island farm.
It also applied for an injunction against the fisheries minister as part of a broader application for a judicial review of federal policy that does not require fish to be tested for piscine reovirus or heart and muscular disease before being transferred to a farm.
Justice Michael Manson issued a 41-page decision Friday agreeing there is a “real and non-speculative likelihood of harm” to the ’Namgis way of life from fish-borne disease, but he rejected an injunction on the transfer of the smolts because of its timing. He found Marine Harvest had informed the ’Namgis on Dec. 21, 2017, that it intended to restock the Swanson Island farm in early spring.
The application to halt the restocking was not filed until March 9, 2018, “mere days before the transfer was set to begin,” Manson wrote, adding, the late notice prevented the company from finding room for the smolts in any of its other B.C. fish farms.
Marine Harvest testified smolts raised at a freshwater facility would be ready for transfer to salt water within a short window and any delay could be deadly, potentially costing the company $2.1 million when loss of the smolts and costs of preparing other pens were tallied.
“Furthermore, the [’Namgis’] delay in bringing this motion has exacerbated this problem, such that this harm can no longer be avoided,” said Manson.
’Namgis Chief Don Svanvik said the First Nation acted as quickly as it could. “From my read, if we had told them in December we were going to file an injunction, I guess we would have got the injunction,” he said.
Marine Harvest has operated for 28 years in compliance with Fisheries and Oceans Canada requirements for transferring fish, court documents showed, and the ruling also said Marine Harvest has made “good faith” attempts at consultation with the First Nation.
In a statement, the company said it “will continue to seek engagement with the ’Namgis First Nation to find collaborative solutions and a pathway forward.”
Another hearing must consider the ’Namgis application for the judicial review of federal policy on the testing of Atlantic salmon for diseases that could be passed to Pacific salmon, Manson ruled.
But his decision was critical of Fisheries and Oceans, finding it had failed to consult with the ’Namgis about the policy and has no “supervisory control or objective criteria” regarding tests for disease in fish being transferred to open pens. “It is my opinion the underlying application for judicial review should proceed as expeditiously as possible,” Manson said.