Federal Court

Environmental Law

Statutory protection of environment

Approvals, licences and orders

Conservation included concepts of preservation and sustainability

Minister of Fisheries issued licences for transfers of live fish into fish habitat or fish rearing facility where conditions of s. 56 of Fishery (General) Regulations were met, which included that fish had no disease or disease agent that would be harmful to “protection and conservation” of fish. Minister’s delegate at Department of Fisheries and Oceans revisited and confirmed ongoing policy of not requiring testing of fish for Piscine Orthoreovirus (PRV) and Heart and Skeletal Muscle Inflammation (HSMI) before issuing licences for transfers. Applicant biologist and applicant First Nation applied for judicial review of decision, while First Nation also applied to challenge specific transfer licence issued by DFO to salmon farm operator. Application by biologist and First Nation granted; First Nation’s second application dismissed. Minister’s interpretation of s. 56 of Regulations was unreasonable in imposing threshold of potential harm that permitted any transfer of diseased fish unless it placed genetic diversity, species or conservation units of fish at risk. Transfer of fish that might cause harm up to conservation unit or species level was severe potential impact with risk of serious or irreversible harm. Conservation meant more than protection of stocks from extinction and included concepts of preservation and sustainability. Minister’s Interpretation of s. 56 of Regulations conflicted with and would defeat purpose of definition of conservation that it purported to adopt Minister’s interpretation ascribed level of harm that failed to embody and was inconsistent with precautionary principle such that decisions made under policy adopting that interpretation were also made in derogation of precautionary principle. Minister was required to consider health of wild salmon, especially given that licences were required for salmon enhancement projects. Minister’s delegate failed to specifically consider relevant factor of their current health and status in context of prevailing scientific uncertainties concerning PRV and HSMI, which also rendered decision unreasonable and inconsistent with precautionary principle. Proper remedy was to quash policy decision, with four months suspension of judgment, and to require Minister to take these reasons into consideration when policy was reconsidered but it was not necessary to quash challenged licence as it had already expired.

Morton v. Canada (Fisheries and Oceans) (2019), 2019 CarswellNat 387, 2019 FC 143, Cecily Y. Strickland J. (F.C.).

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