Question Period Note: Morton/’Namgis Lawsuits/PRV

Morton/’Namgis Lawsuits/PRV

• Our government continues to protect and recover wild Pacific salmon stocks.
• Building on a number of initiatives we released an interim Framework for Aquaculture Risk Management and an interim Framework on the Transfer of Live Fish.
• DFO will also work with industry to implement: testing for HSMI and jaundice and screening of hatcheries for two non-native strains of PRV.
• In addition, we established 3 Technical Working Groups to provide expert advice to inform any final decision with regard to our risk management policy.
• We will continue to work with Indigenous communities, industry, environmental groups and the province of BC to protect wild salmon and enhance environmental sustainability of aquaculture in BC.

Background
• On October 3, 2019 DFO determined that testing for the BC strain of Piscine Orthoreovirus (PRV) 1a is not required prior to authorizing the release or transfer of live fish pursuant to section 56 of the Fishery (General) Regulations (“PRV decision”) because the Department has determined, based on best available science, that the level of risk PRV-1a BC strain poses to wild fish is minimal. The Department then communicated the outcomes of its PRV decision to Ms. Alexandra Morton and the ‘Namgis First Nation.
• On October 10, 2019, EcoJustice’s counsel, on behalf of Alexandra Morton, wrote a letter to the Regional Director General Pacific, seeking clarification and a follow-up meeting in relation to the October 3rd decision.
• On November 4, 2019, the ‘Namgis filed an application for Judicial Review in the Federal Court of Canada challenging the PRV Policy adopted by DFO in response to the February 4, 2019 decision. In the most recent Judicial Review, the ‘Namgis are challenging, among other things, that the PRV Policy is unreasonable and unlawful, fails to satisfy s.56 of the Fishery (General) Regulations, fails to apply the precautionary principle, and fails to account for the principle of reconciliation.
• DFO continues to engage the BC government, First Nations, industry, and environmental non-governmental organizations on fish health management approaches via DFO’s Indigenous and Multi-Stakeholder Advisory Body and its Fish Health Technical Working Group.
• DFO will continue to work with the ‘Namgis, both through the Broughton Finfish Aquaculture Transition and Wild Salmon Restoration Implementation Plan process, as well as ongoing dialogue related to a broad range of aquaculture subjects, including fish health.
• The Department is also moving forward on implementing two key management measures as part of our commitment to the precautionary approach:
o Precautionary screening of freshwater hatcheries in BC for two non-native strains of PRV—the Icelandic and Norwegian—to prevent their introduction and spread in BC waters; and,
o Investing resources to enhance monitoring in BC for Heart and Skeletal MuscIe Inflammation (HSMI) in farmed Atlantic salmon and jaundice in farmed Chinook.
• The Canadian Food Inspection Agency (CFIA) is also actively engaged on this issue because the Agency is the federal lead on fish health through the National Aquatic Animal Health Program.

History
• Between 2013 and 2016, Ms. Alexandra Morton filed judicial reviews in the Federal Court pertaining to DFO authorizing the transfer of live fish infected with PRV into the marine environment:
o The first judicial review alleged that the Minister of Fisheries, Oceans and the Canadian Coast Guard improperly delegated the authority to issue transfer licences to the industry. The Court deemed two conditions relating to transfers of marine finfish as having no force and effect. DFO no longer authorizes marine finfish movements under conditions of licence and now requires all movements to obtain an introduction and transfer licence.
o On October 12, 2016, Ms. Morton filed a judicial review that alleged that DFO’s policy of not testing for PRV and HSMI when issuing licences to transfer live fish to fish rearing facilities in the Pacific Region was unlawful. In addition, Ms. Morton sought an order from the Court declaring that the Minister of Fisheries, Oceans and the Canadian Coast Guard lacks jurisdiction to license the transfer of live fish with diseases or disease agents that may be harmful to the conservation and protection of fish.
• In March 2018, the ‘Namgis First Nation launched a similar judicial review to Ms. Morton’s latter legal challenge, regarding DFO’s PRV policy and also asserted that DFO was required to consult and accommodate the ‘Namgis when adopting the PRV policy and issuing transfer licences to aquaculture facilities located within their traditional territory.
• The Morton and ‘Namgis cases were heard together by Justice Strickland from September 10 to 14, 2018, and she released her judgement on February 4, 2019.
• In short, the Court:
o quashed DFO’s “PRV policy” because it was not a reasonable operationalization of section 56 of the Fishery (General) Regulations (FGR);
o instructed the Minister to reconsider the policy, taking into account reasons detailed in the decision;
o did not uphold Ms. Morton’s request that PRV testing be made mandatory before transfer licences are issued for salmon transfers;
o found that the Minister breached the duty to consult in relation to the policy;
o did not find that the Minister breached the duty to consult regarding authorizing individual transfers; and,
o suspended the execution of the judgement for four months (until June 4, 2019).
• On March 6, 2019, the ‘Namgis filed an appeal related to the Court’s dismissal of their challenge to DFO’s decision to issue a transfer licence to Marine Harvest; the appeal was heard by the Federal Court of Appeal on November 20, 2019 and the decision was reserved.
• On June 3, 2019, all parties agreed to an extension of the reconsideration of the PRV policy for four months to October 3, 2019.
• On June 4, 2019, the Department released for public feedback its Framework for Aquaculture Risk Management (FARM) and Risk-Based approach on the movement of live fish under section 56 of the Fishery (General) Regulations (RBA), which is based on the FARM.
• The ‘Namgis have been consulted on the frameworks. Broader engagement with Provinces/Territories, other Indigenous groups, and stakeholders across Canada, including industry and environmental non-governmental organizations, have also occurred.
• From May to September 2019, DFO and the ‘Namgis undertook a series of 13 meetings (face-to-face and conference calls), in which the parties exchanged information and entered into dialogue on the science, management, and policy related to PRV. DFO also met with Ms. Morton on at least four occasions. DFO has considered the concerns and respect the perspectives of the ‘Namgis First Nation and Alexandra Morton. The information presented through the consultation helped shape and inform the October 3 decision.

If pressed on closed containment:
• Over the longer term, DFO will work with First Nations, BC and industry to explore potential new technology approaches, including closed containment, to support the development of the aquaculture industry.