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Fighting to stop infected farm salmon

There are two lawsuits in play. Marine Harvest is suing me for trespass and for touching one of their buoys with a teaspoon, and I am suing the Minister of Fisheries for not abiding by the law and disregarding the precautionary principle by refusing to test farm salmon from piscine orthoreovirus (PRV) before granting permission for them to be placed in sea pens. The concern is that this virus is highly contagious, scientists are learning more about it and now realize it infects the salmon's read blood cells, which is uses as a factory to make more PRV and when the fish is stressed the virus enters the salmon's heart and renders it so weak it can barely swim. The problem for the industry is that they are so heavily infected with the virus that they may not be able to operate in BC if they can't use infected fish. The problem for the wild fish is they may not be able to survive if they have to continue swimming through a soup of sea lice and PRV every time they migrate through BC waters. The problem for me is Marine Harvest and Cermaq were allowed to join DFO in fighting me and this is rapidly escalating costs.

Drone farm salmon

However, as a scientist tracking this virus, I cannot cower from this aggressive industry and let whales, bears, eagles, forests starve for loss of salmon. Whales are suffering and some populations are sliding towards extinction because there are not enough salmon to nourish them through pregnancy.

While I still hold out some hope for the Trudeau's government and can only hope the Minister of Fisheries doesn't actually realize what he is in court arguing, I find it abhorrent that he is aligned with Marine Harvest and Cermaq to allow them to put fish infected with a highly contagious blood disease into waters where this virus is threatening the life-sustaining wild salmon.

For the record.

The Arguments

On June 20, 2017, Case Management Judge Mandy Aylen of the Federal Court presided over a three hour hearing from Ottawa via teleconference in Vancouver, BC to hear two motions in the case Alexandra Morton v Minister of Fisheries and Oceans, Marine Harvest Canada Inc and Cermaq Canada Ltd. The underlying application is a judicial review of the Minister of Fisheries’ failure to test young farm salmon for piscine Reovirus (“PRV”) before permitting their transfer into marine pens along the BC coast.

This is the second time I have gone to court on this matter. The first case was won and in Justice Rennie’s decision DFO was told to use the precautionary principle in this matter, up hold section 56 of the Fisheries General Regulations not to transfer fish with a disease agent into BC waters and thus DFO would have to know if farm salmon are infected with piscine reovirus or not. DFO should be testing farm salmon for PRV.

The two motions heard were:

  1. Morton’s motion to have material produced as the Minister’s certified tribunal record of his January 2017 rationale not to test for PRV withdrawn as improper

And

  1. Cermaq’s and the Minister’s motions to have the judicial review application struck out for reasons of mootness and non-justiciability.

Our reasoning for motion #1 (to withdraw the Minister’s January 2017 continuation of the decision not to test for PRV) is that a review of DFO’s policy must examine all materials reaching back to the minister’s original decision to allow transfers of PRV positive salmon to fish farms. . We don’t see DFO’s January 2017 “decision” as a new policy, but rather the continued policy to ignore piscine reovirus, which is sweeping through farms in Norway.

In response, DFO and the fish farm companies argued that if we are successful, the case becomes moot, as we would be reviewing old information that is no longer applicable. However, from our point of view the same policy has been in effect since at least 2015 and that it is important to review all materials on how DFO arrived at the policy not to test for PRV even in apparent disregard for the 2015 Morton v Canada (Fisheries and Oceans) decision.

Margot Venton of Ecojustice argued that since DFO’s January 2017 decision not to test for PRV post-dates our October 2016 application to the court for this review DFO could have tailored their new policy “decision” to address why they chose to ignore the Rennie decision.

An ATIP that I did revealed that DFO initiated discussion of the January 2017 decision in November 2016, after our application to the court had been filed. Therefore, we argue that DFO’s 2017 production is a sanitized record of the decision not to test that was designed to appear as a solid and fulsome process, which just happened to reemerge with the same policy not to test. Venton argued that the Minister should produce all materials used to adopt the ongoing policy to support not testing for PRV because of its risk to wild salmon.

The Minister’s lawyer argued that only the January 2017 “decision” should be reviewed, that the Minister used all the available evidence to make his decision and that he doesn’t want the court to become an “academy of science”.. However, this avoids the point that when DFO held the May 2016 HSMI technical briefing, that the certainty that PRV is a “disease agent” increased considerably. Since s. 56 of the Fishery General Regulations states no fish infected with a disease agent that may be harmful to the conservation and protection of fish can be transferred into Canadian marine waters, an academy of science is not required to conclude that to remain compliant with Canadian law, PRV must be screened for to prevent it from entering Canadian marine waters.

The Minister’s lawyer also argued that the May 2016 HSMI report presented only “raw data”. This is inaccurate. “Raw data” would have been confined to detailed listing of specific lesions, when in fact a diagnosis was made that the lesions were diagnostic of the disease HSMI.

Cermaq’s lawyer agreed with the Minister arguing that it is inappropriate for the court to act as an “academy of science”. Cermaq also wanted to narrow the scope of the judicial review to the January 2017 decision. He argued that because I am board member of the Strategic Health Initiative I knew the Minister was grappling with making a new policy decision and therefore rushed my application into the court in October so as to capture them pre-decision. However, this is not accurate, while I have been asked to join this board, I was denied and do not hold that position and did not have the knowledge he stated I had. Cermaq asked the court to strike my entire affidavit which explains why this is so important.

Marine Harvest’s lawyer agreed with DFO and Cermaq and was very clear that they want me exposed to the rapidly rising cost of this case due to all these motions. Their lawyer referred to me as a “habitual litigant”, a “frequent flyer” in the courts and that I should l suffer the consequences. They omitted I was only in court because the last decision to use the precautionary principle to protect wild fish appears to have been ignored.

In closing, Margot Venton argued that if we allow this judicial review to ignore the original rationale for not testing for PRV, that the Minister will evade review of his department’s conduct that has not changed in any material way

I think the looming elephant in the room is why doesn’t DFO, Marine Harvest and Cermaq want a judicial review their ongoing policy not to test farm salmon for piscine reovirus before they are transferred into BC waters.

The Decision

My motion to have the January 2017 memorandum withdrawn was dismissed. Prothonotary Aylen found that challenging an "ongoing policy or practice" brings with it the inherent risk that it will be updated after the application has been brought and therefore it was proper to have the latest reasons for it in the record (para 11). She also dismissed our argument that its creation was suspicious as entirely speculative.

However, she also found that the Minister's failure to either include the materials that were considered in the initial adoption of the policy as troublesome. On this basis she has ordered the Minister to produce a new CTR (certified tribunal record) which clearly identifies and dates documents that were considered for the policy between the issuance of the Rennie decision and January 31, 2017.

In a particularly helpful statement to this case she writes: "In order to determine this issue [of the legality of the Policy], it is imperative that the Court have before it, to the extent that they exist, all incarnations of the policy and the reasons for the policy from the time of its adoption until the ultimate hearing of the application." I believe this will help us show the unreasonableness of the Minister's approach to PRV and the risk that not testing causes wild salmon.

Both of the Minister's and Cermaq's motions to strike my application to the court were dismissed, so the case can proceed.

I asked the court for protection from the rising costs of this case, but she refused and ordered that I pay Marine Harvest and Cermaq costs for raising this motion. And so the risk to me and wild salmon continue to escalate.