adopt-a-fry.org

June 23, 2009

Marine Harvest filed their Factum and did not contest the central premise of our challenge and win, that it is unconstitutional for the Provincial government (which has no mandate to protect wild fish) to be regulating salmon farms in Canada.  While the Federal government has not been attentive to this issue, they are responsible for  protection of our wild fish and must be fully encouraged to do so.

 

"Counsel for Marine Harvest has now filed the Appellant’s Factum in their Appeal from the BC Supreme Court decision of Mr. Justice Hinkson.  Given that in BC the Notice of Appeal does not require a statement of the Grounds of Appeal, this is the first indication we have had of the nature of the appeal. It is now clear that Marine Harvest Appeal concerns only a very limited part of the Judgment.

 

Marine Harvest has conceded the main issues in the case – that the regulation of finfish aquaculture falls within exclusive federal authority, and that the existing provincial regulatory regime under the BC Fisheries Act, the Aquaculture Regulation and the Finfish Aquaculture Waste Control Regulation are constitutionally invalid.  Marine Harvest’s Factum now notifies the Court that it does not contest these findings.

 

As a result, Marine Harvest has confirmed that its appeal will be limited to contesting only that part of Mr. Justice Hinkson’s Order relating to the Farm Practices Protection (Right to Farm) Act — which was a minor part of the case.  (That section concerns the Province’s purported grant of immunity from liability for common law nuisance actions which is extended to other types of farms.)

 

The Marine Harvest’s Factum does not challenge the exclusive federal regulatory authority, and in fact, concedes it.  At paragraph 22, the Factum states:

 

                        “…the Appellant does not dispute the result of the decision below insofar as it finds the regulation of aquaculture is within exclusive federal authority…”

 

At paragraph 45, the Factum further agrees with your original submissions:

 

                        “It is submitted that the Appellant’s fish farming activity falls within exclusive federal authority whether or not the fish farm constitutes a “fishery” in the s.91(12) sense because, in any event, the activity involves fishing in the sense of catching fish.”

 

 

At paragraph 49, the Factum again agrees:

 

                        “The placement of smolts in a portion of the inland sea, feeding and rearing them to marketable size, and baling the fish into the transport vessel that takes them away to market are all “fishing” activities within the exclusive federal fisheries legislative authority, as is the regulation of the effect on the general fish habitat caused by the quantity and type of feed, the quantity and type of stock, and the deposit of organic waste on the seabed.  Thus, whether or not the fish in the fish farm constitutes a fish farm, the aquaculture activity falls within s. 91(12) authority.” [Federal]

 

In respect of the important question of “siting” of fish farms, the Marine Harvest Factum now confirms (at para 52):

 

                        “The siting of fish farms is contentious and involves a weighing of considerations most, if not all, of which are within the federal sphere, such as ocean currents and the impact of the farm on fish habitat, migrating wild fish, aboriginal fish harvesting practices, and commercial and sports fishing practices.  Thus, it is appropriate that the citing decision is made at the federal level and is affected by the grant of an aquaculture lease under s.7 of the Fisheries Act [Canada].”

In summary, the Factum states (at para 53):

 

                        “In summary, federal authority over finfish aquaculture does not depend on a finding that the fish in the pens are part of the overall fishery or any other non-exclusive fishery.  Even if the Court is not prepared to recognize aquaculture as a new, sui generis form of private fishery, federal authority, is sufficiently engaged by the fact that finfish aquaculture is an activity that is akin to a fishery, involves “fishing” within the scope of s. 91(12), limits the public right of fishery by occupying and using ocean space that would otherwise be available or public fishing, interacts with the wild fishery, and is regulated in all respects on the basis of fishery and fish habitat considerations.”

 

The very limited issue left for appeal seems to be Marine Harvest’s view that it has ‘private property’ rights to the fish within a fish farm, and although it concedes the exclusive federal fisheries authority over regulation of the farm, it therefore contends that the Province retain some limited right to modify the common law of nuisance, and that the Right to Farm Act provision may be valid.  The summary conclusion is at paragraph 58:

 

                        “In summary, the conclusion that all stages of the operation of a fish farm (i.e. from the initial choice of its site, to the placement of smolts, to the “catching” and removal of the grown fish) falls within exclusive federal fisheries authority does not prevent a provincial legislature from modifying the rights of others in the vicinity of the fish farm as they exist under the common law of nuisance.”

 

What this means, is that the main constitutional issues which were before the Court are no longer under appeal by Marine Harvest.  Since the Province and the Minister of Agriculture and Lands filed no appeal, most of the Order of Mr. Justice Hinkson in BC Supreme Court is now final, and you have achieved your victory.

 

The provincial regulatory control over finfish aquaculture is declared constitutionally invalid, and fish farms will be subject to exclusive federal jurisdiction — subject only to the 12 month suspension which ends February 2010.  In the absence of federal regulation after that time, the fish farm industry will have no regulatory authority whatsoever to continue operations within the ocean in British Columbia.

 

In the meantime, it is important that you continue to work with federal legislators, and that they be made clearly aware than any potential prospect that this decision would be overturned on appeal has now disappeared, and from February 2010 forward, federal legislative action will be necessary.  It is also important that the provincial regulators not issue any new fish farm renewals or permits on the assumption that the provincial regulatory structure will be in place, since it now clearly will not be."

 Greg McDade Legal Counsel

 

 

Notes from a May 2009 trip to Norway: 

Message from Alexandra Morton in Norway, disease and sea lice are not under control in Norwegian salmon farms and BC stands to lose all
 
I have been in Norway for 10 days because 92% of fish farming in British Columbia is Norwegian owned. I have met with many Norwegian scientists, members of the Mainstream and Marine Harvest boards, been to their AGMs, toured the area with fishermen, examined a closed-containment facility, met the Norwegians fighting for their fish and joined a scientific cruise.  
 
I thought Norway had this industry handled and I expected to learn how marine salmon farming could work, but this has not been the case. My eyes have really been opened. This industry still has major issues that are growing and has no business expanding throughout the temperate coastlines of the world. The way they have been treating sea lice in Norway has caused high drug resistance. The only solution in sight is increasingly toxic chemicals. In the past two years (2007, sea lice levels have actually increased on both the farm and wild fish.  The scientists I met with are holding their breath to see if drug-resistant sea lice populations will explode and attack the last wild salmon and sea trout.  The same treatment methods have been used in BC and we can expect this to occur as well.
 
I am not hearing how the industry can possibly safeguard British Columbia from contamination with their ISA virus. Infectious Salmon Anemia is a salmon virus that is spreading worldwide, wherever there are salmon farms. In Chile, the Norwegian strain of ISA has destroyed 60% of the industry, 17,000 jobs and unmeasured environmental damage.  The industry is pushing into new territory. If this gets to BC no one can predict what it will do to the Pacific salmon and steelhead, it will be unleashed into new habitat and we know this is a very serious threat to life.
 
Professor Are Nylund head of the Fish Diseases Group at the University of Bergen, Norway, reports that, “based on 20 years of experience, I can guarantee that if British Columbia continues to import salmon eggs from the eastern Atlantic infectious salmon diseases, such as ISA, will arrive in Western Canada. Here in Hardangerfjord we have sacrificed our wild salmon stocks in exchange for farm salmon. With all your 5 species of wild salmon, BC is the last place you should have salmon farms.” 
 
New diseases and parasites are being identified. The most serious is a sea lice parasite that attacks the salmon immune system. There is concern that this new parasite is responsible for accelerating wild salmon declines. The Norwegian scientists agree with many of us in BC.  If you want wild salmon you must reduce the number of farm salmon. There are three options.
 
The future for salmon farming will have to include:

• permanently reduction of not just the number of sea lice, but also the number of farm salmon per fjord,
• removing farm salmon for periods of time to delouse the fjords and not restocking until after the out-migration of the wild salmon and sea trout.
• But where wild salmon are considered essential they say the only certain measure is toremove the farms completely.
  

There are many people here like me. I met a man who has devoted his life to the science of restoring the Voss River, where the largest Atlantic salmon in the world, a national treasure, have vanished due to sea lice from salmon farms. Interestingly he is using the method I was not allowed to use last spring… Towing the fish past the farms out to sea.  Another man is working with scientists and communities to keep the sea trout of the Hardangerfjord alive. There are so many tragic stories familiar to British Columbia.
 
The corporate fish farmers are unrelenting in their push to expand.  With Chile so highly contaminated with the Norwegian strain of ISA all fish farmed coasts including Norway are threatened with expansion. I made the best case I could to Mainstream and Marine Harvest for removing the salmon feedlots from our wild salmon migration routes, but they will not accept that they are harming wild salmon. They say they want to improve, but they don’t say how. Norway has different social policies which include encouraging people to populate the remote areas and so fish farming seemed a good opportunity to these people. BC has the opposite policy, but the line that fish farms are good for small coastal communities has been used in BC anyway. I have not seen any evidence that it has even replaced the jobs it has impacted in wild fisheries and tourism.
 
It is becoming increasingly clear to protect wild Pacific salmon from the virus ISA the BC border absolutely has to be closed to importation of salmon eggs immediately and salmon farms MUST be removed from the Fraser River migration routes and any other narrow waterways where wild salmon are considered valuable.
 
Our letter asking government that the Fisheries Act, which is the law in Canada be applied to protect our salmon from fish farms has been signed by 14,000 people to date at www.adopt-a-fry.org <http://www.adopt-a-fry.org> <http://www.adopt-a-fry.org/>  <http://www.adopt-a-fry.org/>   has still not been answered. 

Please forward this letter and encourage more people to sign our letter to government as it is building a community of concerned people word wide and we will prevail as there is really no rock for this industry to hide under and longer.

Alexandra Morton

Notes from an attempt to deliver our letter to the BC Liberal Government’s office in Vancouver:

Hello

Gordon Campbell locked the doors when I tried to deliver our letter and left us on the street.  Campbell has been re-elected and at first I thought this meant BC does not actually want wild salmon, nor their rivers.  I began to make plans to give up and get my own life back in order, but then someone forwarded me this map. The ridings with wild salmon and wild salmon rivers,  did not actually elect Campbell.  

Thousands of people have told me they want wild salmon and have wished me success in this, but at every BC election a handicap is laid on us who are trying to do this.  I am writing to say people cannot wave from the sidelines any longer, because we are not succeeding.  Wild salmon are going extinct on our watch.  Yes, yes climate change will be a factor, but wild salmon are built to survive cataclysmic change in their environment and if we allow their genetic warehouse to rebuild right now, we stand a far better chance of receiving the food and energy this fish brings to us in the years to come.

Grieg Seafood is trying to build two of the biggest fish farms on the coast, on the juvenile salmon migration route for Fraser River and East Vancouver Island stocks, at York Island.  Marine Harvest is trying to increase the size of their “farms” coastwide.  They are taking me back to court this summer to resolve whether they own their fish in the Canadian Ocean.  Atlantic salmon eggs are still being imported into BC, despite the Infectious Salmon Anemia virus popping up everywhere the Norwegian salmon farmers operate.  Emamectin benzoate (Slice) is being used in our waters….with no warnings posted during usage…even though the U.S. Food and Drug Agency apparently has a ban on any food products “exposed” to this neurotoxin (Pacific Fishing current issue).  This means all of us who are fishing, and harvesting seafood near fish farms have no way to make sure we are not “exposed” to the drug.  And the fish feedlots are in violation of many sections of the Fisheries Act.

Not only is there no progress, we are moving backwards.

I am headed to Norway next week, but doubt anyone is listening there either.

I can only see two ways forward…. The courts….. And for us all to step up and say “no more.”

The solution is so simple:  Apply the laws of Canada, The Fisheries Act.  If the Norwegians can’t comply they should leave.  Give the Canadian fish farmers who want to revamp their industry in closed tanks a break in getting set up.  Market wild and farm fish to raise the value of both.  And restore wild salmon in a way that has never been tried…..adhering to their biology, the natural laws that have caused them to thrive in the first place.

And we need everyone who wants wild salmon to sign this letter.  Currently we are at 14,000…..and we are still on the street, this was not enough to even get in the door.

It is up to you guys.

Alexandra Morton 

 Support from the United States:

Trout Unlimited in the United States has sent their own letter signed by 360 members to the Minister of Fisheries and Premier Gordon Campbell of British Columbia, 

"...we can no longer stand by and watch silently as this new salmon crisis unfolds.  We have begun to call on our legions of advocates to voice their support for the protection of British Columbia’s wild salmon and steelhead stocks before it is too late."

Read Trout Unlimited Letter 

 

 

 

Notes from BC Supreme Court

WE WON!!!!!!!!!!!!!

ONE FOR THE WILD SALMON!

Vancouver, B.C. February 9 -  BC Supreme Court ruled that the BC government does not have the right to regulate salmon farms – the BC regulation of fish farms has become unlawful, unconstitutional and invalid.  The fish inside the farm are now considered a fishery, not agriculture and thus the federal government has exclusive right to regulation. The court suspended the ruling for a period of 12 months to allow the federal government to bring in proper legislation.

On September 29 – October 3, 2008, the case Alexandra Morton et al vs the A.G. of British Columbia and Marine Harvest Canada, Vancouver Registry, No. S083198 was argued in BC Supreme Court before Mr. Justice Hinkson. Filed under the Judicial Review Procedure Act, RSBC, c. 241 the Petitioners sought a declaration that the statutory provisions of British Columbia’s Aquaculture Regulatory Regime – sections 13(5) and 26(2)(a) of the Fisheries Act (B.C.) - be declared unconstitutional and of no force or effect by virtue of section 52 of the Constitution, which states that the regulation of Canada’s fisheries is under the sole jurisdiction of the Federal Crown and cannot be delegated to the provinces.

When salmon farming arrived on this coast very little was know about it, today know much, much more.  Just last week the provincially funded Pacific Salmon Forum called for restructioning of the fish farm regulatory regime now we have the opportunity to do something that makes sense.

I am relieved and  overjoyed.  “Finally, the government agency in charge of fish farms is mandated to put wild salmon first. This has come none too soon as provincial management of fish farms is devastating many coastal communities.”

“Because the province is not responsible for the oceans, the impact of fish farms on the oceans became nobody’s business and this is how we got into this mess,” explains Morton.

 “The B.C. salmon farming industry is largely foreign and facing severe global economic and disease problems,” says Morton. “What makes countries wealthy is their resources and wild salmon are an extremely valuable fishery to the benefit of the BC economy.” 

“I would like to thank my lawyer, Greg McDade, the hundreds of people on this website that have donated the funds that made this possible”, says Morton, “West Coast Environmental Law and many others for their help. There is an enormous amount of work ahead, but this court has illuminated a path though the chaos. The war in the water should be over. Our wild salmon are down but they are not out!”

Alexandra Morton 

 

 

We have a date in Court!

Hello All,

We have four days reserved in BC Supreme Court in Vancouver starting on September 29, 2008. We will be arguing that the Federal government did not have the right to hand regulation of fish farming to the Provincial government, because fish farms exist in the marine environment — which is a Federal jurisdiction. If we win, fish farms in BC become unlawful.

The judge could make a decision right away, but it is more likely the outcome will take months. If we lose, we might want to appeal; and if we win, they might want to appeal. If we win, regulation of fish farms would revert to Fisheries and Oceans Canada (DFO), and we will need to work with DFO on upgrading their role to make saving our wild fish top priority.

Many of you have asked what the point is in taking fish farms out of Provincial hands into Federal hands. The reason is that it is the law. Further, during the past 20 years when anyone brings up an issue with fish farming, the Feds point to the Province and the Province points to the Feds and in my opinion neither do anything useful. This legal action could bring the whole mess under one roof and it would be crystal clear whose responsibility it is to clean house.

Sea lice epidemics are devastating the Broughton and Campbell River sockeye, pinks and chums and have infested even the salmon and herring on the Fraser River migration route. We can have both wild and farmed fish, but not this way. Farming fish does not have to destroy wild salmon populations; it is simply an issue of where and how it’s done.

The comments and donations you’ve sent make it clear that many people in BC want reason brought to the fish farming industry.

Alexandra Morton
Echo Bay

 

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Court Case Update October 6, 2008

As the wild salmon of the Broughton tasted their first good rainfall in a month, my lawyer stood to argue for their very survival. The question before the judge looked simple - who should be managing fish farms in B.C.; the Federal or Provincial government? As lawyer Greg McDade began speaking before the judge, the lawyer for the Crown, Veronica Jackson, rose to attempt to halt the proceedings. B.C.’s lawyer asked the judge to refuse ‘standing’ to the petitioners in Morton et al. vs. the Crown et al. She argued that the Attorney General is the guardian of the ‘public interest’ and that only the federal government or the affected fish farmers could sue if the legislation was unconstitutional. She argued that the tourism operators and fishermen who joined me in this petition were only concerned for their livelihoods, but had not suffered direct impact, and that because our real motives were to protect the salmon not the Constitution, we did not have the standing required to bring this before the courts.

As Jackson drew out this line of reasoning, I closed my eyes to imagine the salmon now using the fall freshet to access their rivers - Glendale, Kakweikan, Ahta, Embly, Wakeman, Meetup, and Kingcome. In a continuous mental loop I smelled the rich odour of spawning salmon feeding each of these river valleys. I needed to feel there was a truth even more powerful than this courtroom. Could 18 years of trying to bring reason to the issue of farming the oceans….tens of thousands of dollars given to this court proceeding by the public, and months of preparation really be halted before it started? When I opened my eyes, Jackson was seated and McDade stood to continue. I left the valleys and instead breathed the scent of paper stacked in volumes on the desks of lawyers. Finally it began.

The law is a language so powerful that general concepts bend and contort under its scrutiny. Under what circumstances can we own a fish? To what extent are fish farms a business and when is a fish more like a chicken?

The Federal Government is clearly in charge of regulating marine fishery resources in Canadian waters. Under our Constitution, ‘Seacoast and Inland Fisheries’ was assigned exclusively to the federal government. Commercial and sports fishermen are told what they can catch, where, and when by the Federal Government. But what exactly is a “fishery.” Greg McDade made it clear a “fishery” is the resource itself and more than just the fish. Fish cannot exist alone in a void. “The fishery,” he argued, includes the ocean, the herring, plankton, the tides, the whole system that make the fish we fish for in a “fishery.”

Tribune Channel in the Broughton Archipelago, where the fish farm at issue in this legal challenge is situated, is a dynamic ocean environment. Millions of young salmon swim through it to sea, billions of living organisms - sand lance, herring, zooplankton, dolphins - feed and consume each other. Broughton is a living organism. The tides are lungs, atmospheric highs and lows act as bellows, trillions of solar panels flawlessly track the sun…and salmon are the nutrient transport system, the blood stream. Broughton is a very powerful mechanism producing clean air, water and food. Like all ecosystems, components grind against each other, some dim as others blaze in pulsing concert.

It would not be realistic, McDade pointed out, to suggest that schools of 100,000s of farm fish introduced to this living system were not interacting with the ecosystem of the surrounding fishery. Indeed the barrier of choice is a mere open mesh, designed to allow wastes to leave the “farm.” Fish farmers are perhaps the only “farmers” who never shovel manure. Ocean oxygen and clean water flow into the enclosures, along with wild fish and plants. Add millions of large farm fish processing 100,000s of tons of food, introduced from distant oceans and fields, and you have most definitely impacted “the fishery.” The farm salmon are in and part of “the fishery resource.” Nowhere is it written that federal powers extend only to “wild” fish. If fish “farming” is actually a cultured “fishery,” the Federal Government must regulate it.

The legal argument runs even deeper. When you catch a fish…when do you own it? When it is on your hook? When it is in your boat? What if you take it into your boat and then release it alive? Do you still own it as it swims away? Does Marine Harvest own their fish when the fish are in our ocean? When Marine Harvest’s fish escape to the outside of the nets, the Federal government issues a fishing permit to catch them, similar to any fishing permit issued for capture of any salmon. If the fish belong to Marine Harvest why do they need a permit to recapture them?

The lawyer for Marine Harvest argued that their fish weren’t really “fish,” that they were more like chickens; livestock. But when chickens escape does the owner need to apply for a hunting permit to recover them? I have two escaped Atlantic salmon in my freezer. Do I have Marine Harvest’s private property or are they now mine because they were caught legally in a wild fishery? Did they ever actually belong to a fish farming corporation?

The Province’s lawyer argued fish farming is more of a business than anything to do with fish and as such could be regulated and permitted by the Province. This fit well with Marine Harvest’s assertion that farm salmon are more like chickens.

Fish aside, an enormous constitutional question loomed dark and threatening as an approaching storm. Just because the Province does have jurisdiction over the seafloor can the Province grant private ownership of the water itself (the ocean)? Who owns the ocean? The right to privatize public ocean spaces endangers all Canada. The Constitution belongs to the people, as do the ocean spaces it protects. McDade cited case law over 100 years old, some going back to the Magna Carta. Can or did the Federal government ever give the Province the right to grant corporations private use of our ocean? (The Federal Government, while invited to join us, simply did not respond to the invitation.)

McDade said, in reviewing Canada’s legal history, it was clear that the answer to this question is “no.” The Federal government gave fish farming to the Province in 1988 in a quiet Memorandum of Understanding. Furthermore, in the case of the fish farm at issue, called Glacier Falls, there is no evidence the Federal Government actually issued any permits for it to operate. Instead DFO wrote “letters of advice,” non-statutory provisions to cover off the industry without actually granting a permit.

These issues are complicated, when even a fish is hard to define. But it seems to me as if the Federal Government, which is legally bound to protect wild fish, has insulated itself from the fish farming industry by using documentation that is not legally binding, (MOUs and letters of advice). While the Federal Government abdicated responsibility for fish farms, they gave the industry to the Province, where, legally speaking, no one is responsible for wild fish.

As another depleted generation of wild salmon incubates in the rivers, we await the judge’s decision.

Thank you all for making it possible to bring this to the attention of the courts.

Alexandra Morton