RV Policy, 2019 FC 143

2019 FC 143 T-1710-16 Alexandra Morton ( Applicant ) v. Minister of Fisheries and Oceans, Marine Harvest Canada Inc. and Cermaq Canada Ltd. ( Respondents ) T-430-18 ‘N a m g is First Nation ( Applicant ) v. Minister of Fisheries and Oceans and the Canadian Coast Guard, Marine Harvest Canada Inc. and Cermaq Canada Ltd. ( Respondents ) T-744-18 ‘N a m g is First Nation ( Applicant ) v. Minister of Fisheries and Oceans and the Canadian Coast Guard, Marine Harvest Canada Inc. and Cermaq Canada Ltd. ( Respondents ) Indexed as: Morton v.

Canada (Fisheries and Oceans) Federal Court, Strickland J.—Vancouver, September 10-14, 2018; Ottawa, February 4, 2019.

Fisheries — Judicial reviews challenging respondent Minister of Fisheries and Oceans’ (Minister) policy of issuing licences for transfers of salmon into marine environment without requiring screening for certain disease causing pathogens — Transfer licence only issued if conditions set out in Fishery (General) Regulations ( FGRs ), s. 56 met — Department of Fisheries and Oceans (DFO) not testing for Piscine Orthoreovirus (PRV) or Heart and Skeletal Muscle Inflammation (HSMI) prior to issuing licences (PRV Policy) — PRV Policy last reconsidered July 2018 (PRV Policy Decision) — Application in T-1710-16 challenging reasonableness of PRV Policy Decision — Application in T-430-18 also challenging reasonableness of PRV Policy Decision as well as Minister’s failure to consult ‘N a m g is First Nation (‘N a m g is) — Application in T-744-18 seeking to quash transfer licence issued to applicant Marine Harvest Canada Inc. (Marine Harvest) — Morton v.

Canada (Fisheries and Oceans), 2015 FC 575 , 96 Admin. L.R. (5th) 1 (Morton 2015) previously finding no nexus or scientific linkage between regulatory requirement (directed to protection of resource), licence condition (directed to stock) — ‘N a m g is submitting, inter alia, that Minister’s

interpretation of s. 56 inconsistent with Morton 2015 in that Minister’s

interpretation of “protection and conservation of fish” limited to word “conservation”, omitting analysis of word “protection” — Whether PRV Policy Decision reasonable; whether decision to issue transfer licence to Marine Harvest reasonable — FGRs , s. 56 not justifiably bearing Minister’s

interpretation of phrase “may be harmful to the protection and conservation of fish” — Minister’s

interpretation essentially permitting transfer of fish having disease — This

interpretation unreasonable, not consistent with Wild Salmon Policy definition of “conservation” — Transfer of fish known to have diseases inconsistent with FGRs , s. 56 (

b) prohibition of transfer of fish having disease or disease agents that may be harmful to protection, conservation of fish — Such transfer representing risk of serious or irreversible harm contrary to precautionary approach — Level of potential harm imported by Minister’s

interpretation of s 56(

b) not in keeping with proper management, control of fisheries — Minister’s

interpretation defeating purpose of Wild Salmon Policy definition of conservation — Court’s findings in Morton 2015 concerning s. 56 , precautionary principle not obiter — Precautionary principle having to inform Minister’s

interpretation of s. 56 — Minister’s

interpretation of phrase “the protection and conservation of fish” inconsistent with precautionary principle — S. 56 decisions applying PRV Policy made in derogation of precautionary principle — Minister’s

interpretation of s. 56 permitting harm to genetic diversity, species or ecosystem — Protection, conservation of fish extending to wild fish — Minister required to consider wild salmon when adopting, continuing PRV Policy — Decision rendered unreasonable by failing to do so — PRV Policy Decision quashed.

Aboriginal Peoples — Duty to consult — Minister of Fisheries and Oceans (Minister) issuing licences for transfers of live salmon into marine environment without requiring screening for certain disease causing pathogens — Transfer licence only issued if conditions set out in Fishery (General) Regulations ( FGRs ), s. 56 met — Department of Fisheries and Oceans (DFO) not testing for Piscine Orthoreovirus (PRV) or Heart and Skeletal Muscle Inflammation (HSMI) prior to issuing licences (PRV Policy) — PRV Policy last reconsidered July 2018 (PRV Policy Decision) —Applicant ‘N a m g is First Nation (‘N a m g is) claiming Minister breaching duty to consult them with respect to PRV Policy, issuance of transfer licence to applicant Marine Harvest Canada Inc. — Whether Minister breaching duty to consult ‘N a m g is concerning PRV Policy Decision, issuance of transfer licence — PRV Policy Decision potentially having adverse effects on ‘N a m g is’ Aboriginal rights — DFO not advising ‘N a m g is of amendment to all existing aquaculture licences — Failure to raise this amendment inconsistent with DFO’s demonstrated, self-stated ongoing consultation practice concerning aquaculture licences — DFO should have responded, engaged with ‘N a m g is’ concern — ‘N a m g is’ request for consultation triggering requirement to respond — DFO breaching duty to consult .

Practice — Affidavits — Minister of Fisheries and Oceans (Minister) issuing licences for transfers of live salmon into marine environment without requiring screening for certain disease causing pathogens — Applicant ‘N a m g is First Nation (‘N a m g is) seeking to quash transfer licence issued to applicant Marine Harvest Canada Inc. on basis, inter alia, licence issued in contravention of Fishery (General) Regulations , s. 56 — Asserting that Minister acting in bad faith by improperly promoting interests of aquaculture industry without regard to protection, conservation of fish as required by s. 56 — Relying on expert affidavits to support bad faith allegations —

Expert affidavits not admissible — Affidavits not reviewing in neutral, uncontroversial way evidence before Minister’s delegate — Admission of affidavits would transform judicial review into trial de novo on merits of the science — Affidavits not meeting qualifications of relevancy, necessity — Not falling within exceptions to rule precluding admission of evidence not before decision maker — Not establishing that Department of Fisheries and Oceans (DFO) acting inconsistently with statutory purpose with such reckless disregard that absence of good faith could be deduced, bad faith presumed — Not establishing that DFO acting improperly.

These were applications for judicial review challenging the respondent Minister of Fisheries and Oceans’ (Minister) policy of issuing licences for transfers of live salmon into the marine environment without requiring screening for certain disease causing pathogens and diseases that affect salmon. The Minister may only issue a transfer licence if the conditions set out in

section 56 of the Fishery (General) Regulations ( FGRs ) are met, i.e. that the release or transfer of the fish is in keeping with the proper management and control of fisheries (paragraph 56(a)); that the fish do not have any disease (paragraph 56(b)); and their release or transfer will not have an adverse effect on the stock size of fish or the genetic characteristics of fish or fish stocks (paragraph 56(c)).

The Department of Fisheries and Oceans (DFO) has a policy of not testing for Piscine Orthoreovirus (PRV), a highly infectious virus, or Heart and Skeletal Muscle Inflammation (HSMI) disease prior to issuing licences for the transfer of juvenile salmon from land-based hatcheries into marine open-net pens as part of aquaculture operations or as releases made as part of wild salmon enhancement programs (PRV Policy). DFO has reconsidered, but maintained, the PRV Policy on several occasions. The Minister made six decisions, through his delegate, to continue the PRV Policy between 2015 and 2018.

The most recent reconsideration on July 28, 2018 was the decision under review in these matters (PRV Policy Decision). The application in docket T-1710-16 challenged the reasonableness of the PRV Policy Decision. The applicant therein sought several orders, including an order declaring the PRV Policy to be unlawful; an order that the Minister shall require testing for PRV as part of applications to licence the transfer of fish; and an order restricting the transfer of PRV positive salmon. The application in docket T-430- 18 also challenged the reasonableness of the PRV Policy Decision.

Additionally, the applicant ‘N a m g is First Nation (‘N a m g is) claimed that the Minister breached the duty to consult them concerning the PRV Policy. In docket T-744-18, ‘N a m g is sought to quash a transfer licence issued by DFO to the Swanson Island facility operated by the applicant Marine Harvest Canada Inc. (Marine Harvest), on the basis that the licence was issued in contravention of

section 56 of the FGRs , that the decision to issue it was unreasonable, that the Minister breached the duty to consult with ‘N a m g is prior to issuance of that licence, and that the Minister breached the duty of procedural fairness owed to ‘N a m g is. The applicant in docket T-1710-16 had also been the applicant in Morton v. Canada (Fisheries and Oceans) , 2015 FC 575 , 96 Admin. L.R. (5th) 1 ( Morton 2015 ), wherein the question was raised as to whether certain licence conditions contained in an aquaculture licence granted to Marine Harvest for its operations met, or were consistent with,

section 56 of the FGRs . The Court in Morton 2015 found, inter alia , that there was no nexus or scientific linkage between the regulatory requirement (directed to the protection of the resource) and the licence condition. It also found that certain conditions circumvented the paragraph 56 (

b) regulatory requirements and licensed Marine Harvest to transfer through less rigorous conditions than required by law. As a result of Morton 2015 , the Minister issued amended aquaculture licences stating that the licence holder needed to apply to the British Columbia Introductions and Transfers Committee (ITC) to obtain an authorization to transfer fish. The ITC makes a recommendation to the DFO Regional Manager that the application to transfer be allowed or allowed with additional licence conditions. In docket T-430-18, ‘N a m g is characterized the Minister’s

interpretation of

section 56 as unreasonable, primarily in the context of its arguments on bad faith. ‘N a m g is also submitted that the Minister’s

interpretation of

section 56 was inconsistent with Morton 2015 in that the Minister’s

interpretation of “protection and conservation of fish” was limited to the word “conservation” and omitted any analysis of the word “protection”, relying instead on the definition of “conservation” found in Canada’s Policy for Conservation of Wild Pacific Salmon (Wild Salmon Policy). The Wild Salmon Policy definition of “conservation” speaks to the protection of genetic diversity of wild salmon and species of wild salmon and their ability to sustain biodiversity and reproduce. N a m g is asserted that the Minister acted in bad faith by improperly promoting the interests of the aquaculture industry without regard to the protection and conservation of fish as required by

section 56 and Morton 2015 . In support of its bad faith allegations, ‘N a m g is relied, inter alia , on the record that was before the delegate and on affidavits of experts it retained in connection with this proceeding. The main issues were whether the PRV Policy Decision was reasonable (T-1710-16 and T-430-18), whether the Minister breached the duty to consult ‘N a m g is concerning the PRV Policy Decision (T-430-18), and whether the decision to issue the Marine Harvest transfer licence was reasonable (T-744-18). Held , the applications in dockets T-1710-16 and T-430-18 should be allowed; the application in docket T-744-18 should be dismissed.

Section 56 of the FGRs could not justifiably bear the Minister’s

interpretation of the phrase “may be harmful to the protection and conservation of fish”. The Minister’s

interpretation appeared to impose a threshold or “level” of potential harm that essentially permitted any transfer of fish having a disease or a disease agent unless the transfer places genetic diversity, species or conservation units of fish at risk. This was not consistent with the Wild Salmon Policy definition of “conservation”, and it was unreasonable. The Minister’s

interpretation of “fish” as an aggregate of a stock or conservation unit of wild fish suggested a level of acceptable potential harm at the conservation unit or species level. The transfer of fish known to have diseases that can severely impact fisheries is inconsistent with the paragraph 56(

b) prohibition of transfers of fish having disease or disease agents that may be harmful to the protection and conservation of fish. A transfer of fish that may potentially cause harm up to the conservation unit or species level is a severe potential impact. Moreover, it represents a risk of serious or irreversible harm that is contrary to the precautionary approach. The high level of potential harm that the Minister imported by his

interpretation of paragraph 56(

b) could also adversely affect stock size or, by diminished numbers, the genetic characteristics of fish or fish stocks. Nor was it clear that this level of potential harm would be in keeping with the proper management and control of fisheries as required by paragraph 56(a). In

summary, the Minister’s

interpretation of

section 56, while purporting to adopt the Wild Salmon Policy definition of conservation, in effect, defeated the actual purpose of, and conflicted with, that definition by incorporating a level or magnitude of potential harm at the species or conservation unit level before paragraph 56 (

b) will be triggered to preclude a transfer. The Court’s findings in Morton 2015 concerning

section 56 and the precautionary principle, which recognizes that the lack of complete scientific certainty should not be used as a basis for avoiding or postponing measures to protect the environment, were not obiter . As

section 56 embodies the precautionary principle, the Minister’s

interpretation of

section 56 must also be informed by that principle. That said, the precautionary principle does not serve to create or to provide the applicants with substantive rights, such as requiring the Minister to test or gather information on the presence of PRV or HSMI in salmon before a transfer. While Morton 2015 established that the phrase “may be harmful” does not require scientific certainty or that harm will

even be the likely consequence of the transfer, not requiring scientific certainty does not equate to total absence of uncertainty. However, the difficulty that the Minister faced in this matter was that his

interpretation of the phrase “the protection and conservation of fish” contained in paragraph 56 (

b) of the FGRs , ascribed a level of harm that failed to embody and was inconsistent with the precautionary principle. In the result, decisions made under

section 56 that applied the PRV Policy, which adopts that

interpretation, were also made in derogation of the precautionary principle. The precautionary principle should not be understood to mean that the risk of any level of potential harm is acceptable until it reaches the level of serious or irreversible harm, such as extirpation. Rather, its focus is to exercise more caution when information is uncertain and, where appropriate, to ensure that steps are taken to prevent irreversible harm, even when the potential risk of causing that harm is uncertain. The Minister’s

interpretation of

section 56 permitted harm to genetic diversity, species or ecosystem of a stock or conservation unit. The protection and conservation of fish extends to wild fish, such as wild Pacific salmon. Given the role that conservation of fisheries plays in the regulatory regime governing transfer of fish to fish farms, and as reflected in

section 56 , including the Minister’s

interpretation of that section, wild salmon are a relevant factor that the Minister was required to consider when adopting and continuing the PRV Policy. While the status and health of wild Pacific salmon may well have been part of the general backdrop to the decision made by the Minister’s delegate, the delegate failed to specifically consider this factor in the context of the prevailing scientific uncertainties surrounding PRV and HSMI, thereby rendering the decision unreasonable.

By failing to address wild Pacific salmon health and status in making the PRV Policy Decision the delegate also failed to embody the precautionary principle. The ‘N a m g is expert affidavits were not admissible. They did not review in a neutral and uncontroversial way the evidence that was before the Minister’s delegate. Rather, the affidavits provided new information, spoke to the merits of the matter decided by the delegate; engaged in the

interpretation of the evidence; and challenged the reasonableness and scientific validity of the PRV Policy and the reconsideration decision. As to the improper purpose or bad faith exception, nothing in the affidavits suggested misconduct or bad faith. The fact that scientists held differing views did not establish bad faith. The admission of the ‘N a m g is expert affidavits would have had the effect of transforming the judicial review, intended to be a

summary process, into a trial de novo on the merits of the science, taking the Court out of its proper role and becoming a forum for fact finding on the merits. While opinion evidence of a properly qualified expert may be admissible if it is relevant, necessary to assist the Court, and not subject to any exclusionary rule, the ‘N a m g is expert affidavits in this matter did not meet those qualifications. They did not fall within any of the exceptions to the rule precluding the admission of evidence that was not before the decision maker.

The ‘N a m g is expert affidavits did not establish that DFO repeatedly acted inconsistently with its statutory purpose with such reckless disregard that the absence of good faith could be deduced and bad faith presumed. These affidavits also did not demonstrate that DFO acted improperly to promote the interests of the aquaculture industry. While the Minister submitted that DFO determined that PRV and HSMI pose a low risk to wild salmon and, therefore, to ‘N a m g is’ rights, it did not follow that this was a basis for refusing to consult when that risk assessment was what gave rise to the request to do so.

The results of a scientific study supported that PRV may potentially have adverse effects on ‘N a m g is’ Aboriginal rights if HSMI is transmissible to wild Pacific salmon. Accordingly, the PRV Policy Decision had the potential to adversely affect ‘N a m g is’ Aboriginal rights. Despite DFO’s practice of ongoing consultation, it did not appear that it advised ‘N a m g is of the amendment to all existing aquaculture licences made in response to Morton 2015 whereby aquaculture licence holders were required to apply to the ITC for a separate licence.

The failure to raise with ‘N a m g is this amendment was inconsistent with DFO’s demonstrated and self-stated ongoing consultation practice concerning aquaculture licences. It would not have been overly onerous for DFO to address issues relating to fish health and transfers of fish in the context of the licence amendment.

When ‘N a m g is raised its concerns about continued transfers without testing for PRV, and when ‘N a m g is sought consultation on that issue, DFO, as part of its ongoing consultation process concerning aquaculture licensing and management, should have responded and engaged with that concern. ‘N a m g is’ request triggered a requirement to respond within DFO’s ongoing duty to consult. DFO breached that obligation when it subsequently reconsidered the PRV Policy without responding to ‘N a m g is’ concerns.

The alleged breach of procedural fairness arose in connection with ‘N a m g is’ motion for an injunction in docket T-430-18 seeking to prevent the issuance of the Swanson Island transfer licence. ‘N a m g is’ submission could not succeed. The injunction evidence was submitted to the Minister and ITC on the eve of the anticipated injunction decision. Namgis could have requested DFO’s counsel to place the materials before the ITC as soon as they became available to it.

Sending such large and substantive submission on the eve of the ITC decision ensured that the ITC could not possibly have time to consider it as the Swanson Island transfer decision had to be made immediately. The failure of the ITC or the Minister to consider these materials in these circumstances did not amount to either a breach of the duty to consult or a breach of any duty of procedural fairness. As for remedies, the June 28, 2018 PRV Policy Decision of the delegate, which continued the PRV Policy, was quashed.

The Minister or his delegate were required to take the present reasons, the findings in Morton 2015 , and the current science pertaining to the diagnosis of HSMI into consideration when reconsidering the PRV Policy. The Court suspended its judgment for a four-month period from the date of its issue to permit DFO time to complete its outstanding risk assessment concerning PRV and HSMI. Finally, the Court was not persuaded that

section 56 of the FGRs creates a duty to remove transferred fish even if the Swanson Island transfer licence was improperly issued. The balance of convenience did not favour ‘N a m g is’ request for mandamus in this matter. STATUTES AND REGULATIONS CITED Access to Information Act , R.S.C., 1985, c. A-1 . Aquaculture Activities Regulations , SOR/2015-177 . Canada Evidence Act , R.S.C., 1985, c. C-5, s. 30 . Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

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Di Cicco et al. (2017) “Heart and skeletal muscle inflammation (HSMI) disease diagnosed on a British Columbia salmon farm through alongitudinal farm study”, PLoS ONE 12(2):e01271471, online: https://doi.org/doi:10.1371/journal.pone.0171471. Di Cicco et al. (2018) “The same strain of Piscine orthoreovirus (PRV-1) is involved in the development of different, but relateddiseases in Atlantic and Pacific Salmon in British Columbia” FACETS 3: 599–641, online: https://doi.org/10.1139/facets-2018-0008. Foster, Caroline E.

Science and the Precautionary Principle in International Courts and Tribunals, New York: Cambridge UniversityPress, 2011. Garver, K. A. et al. (2016) “Piscine Orthoreovirus from Western North America is Transmissible to Atlantic Salmon and SockeyeSalmon but Fails to Cause Heart and Skeletal Muscle Inflammation”, PLoS ONE 11(1):e0146229, online:https://doi.org/10.1371/journal.pone.0146229. Garver, K.

A. et al (2016) “Piscine Reovirus, but not Jaundice Syndrome, was Transmissible to Chinook Salmon, OncorhyunchusTshawytscha (Walbaum), Sockeye Salmon, Oncorhyunchus Nerka (Walbaum), and Atlantic Salmon, Salmo Salar, L.” J. Fish Dis. 39(2):117-128. Madhun, A. S. et al. (2018) “Prevalence of Piscine Orthoreovirus and Salmonid Alphavirus in Sea-Caught Returning Adult Salmon(Salmo Salar L.) in Northern Norway”, J Fish Dis. 2018;41:797–803. Miller, K. M. et al. “Infectious disease, shifting climates, and opportunities predators: cumulative factors potentially impacting wildsalmon declines” Evol.

Appl. 2014: 7(7):812-855.doi:10.1111/eva.12164. Miller, K. M. et al. (2017) “Molecular Indices of Viral Diseases Development in Wild Migrating Salmon”, Conservation Physiology 5.10.1093/conphys/cox036.

Morton, A. et al. (2017), “The Effect of Exposure to Farmed Salmon on Piscine Ortheovirus Infection and Fitness in Wild Pacific Salmon in British Columbia”, Canada. PLoS ONE 12 (12): e0188793. Purcell, M. K. et al. (2017) “Molecular Testing of Adult Pacific Salmon and Trout ( Oncorhynchus spp) for Several RNA Viruses Demonstrates Widespread Distribution of Piscine Orthoreovirus in Alaska and Washington”, J. Fish Dis. 2017; 1–9.

Wessel, O. et al. (2017) “Infection with purified Piscine orthoreovirus demonstrates a causal relationship with heart and skeletal muscle inflammation in Altantic salmon”, PLoS ONE 12(8): e0183781, online: https://doi.org/10.1371/journal.pone.0183781. APPLICATIONS for judicial review challenging the respondent Minister of Fisheries and Oceans’ policy of issuing licences for transfers of live salmon into the marine environment without requiring screening for certain disease causing pathogens and diseases that affect salmon.

Applications in dockets T-1710-16 and T-430-18 allowed; application in docket T-744-18 dismissed. APPEARANCES Margot Venton , Kegan Pepper-Smith and Olivia French for applicant Alexandra Morton. Sean P. Jones , Aaron Christoff , Maxime Faille , Paul Seaman and Scott A. Smith for applicant ‘N a m g is First Nation. Kevin O’Callaghan and Dani Bryant for respondent Cermaq Canada Ltd. Tim Timberg , Lisa McDonald and Gwen MacIsaac for respondents Minister of Fisheries and Oceans and Canadian Coast Guard. Chris Watson and Emily Dvorak for respondent Marine Harvest Inc.

SOLICITORS OF RECORD EcoJustice , Vancouver, for applicant Alexandra Morton. Gowling WLG (Canada) LLP , Vancouver, for applicant ‘N a m g is First Nation. Fasken Martineau DuMoulin LLP , Vancouver, for respondent Cermaq Canada Ltd. Deputy Attorney General of Canada for respondents Minister of Fisheries and Oceans and Canadian Coast Guard. MacKenzie Fujisawa LLP , Vancouver, for respondent Marine Harvest Inc. The following are the reasons for judgment and judgment rendered in English by Strickland J.: TABLE OF CONTENTS I. Introduction 1 II. The parties 5 A. Ms. Morton 5 B. ‘N a m g is 7 C. Minister 11 D.

Marine Harvest Canada Inc. 12 E. Cermaq Canada Ltd. 13 III. Background 14 A. Legislation 14 (

i) Fisheries Act 14 (ii) Fishery (General) Regulations 15 (iii) Pacific Aquaculture Regulations 19 B. Morton 2009 20 C. Fish farm production cycle 21 D. PRV and HSMI 27 E. Morton 2015 32

F. Transfer licensing post- Morton 2015 42 IV. The PRV policy 45 A. Previous decisions 46 (

i) June – July 2015 decision 46 (ii) September 2015 decision 46 (iii) June 2016 decision 46 (iv) January 30, 2017 decision 46 (

v) March 9, 2018 decision 46 (vi) June 28, 2018 decision 46 B. Decision under review 47 (i) 2015 CSAS Science Response 50 (ii) January 30, 2017 RDG Memorandum 54 (iii) March 2018 Rapid Science Response 58 (iv) June 2018 Rapid Science Response 67 V. ‘N a m g is’ motion for an Injunction (T-430-18) 76 VI. Issues 78 VII. Analysis 80 A. Issue 1: Is the PRV Policy Decision reasonable (T-1710-16 and T-430-18)? 80 (

i) Preliminary issue – rule 312 motions (T-1710-16) 80 (ii) Standard of review 110 (iii) Was the Minister’s

interpretation of

section 56 of the FGRs reasonable? 117 (iv) Did the Minister derogate from the precautionary principle? 149 (

v) Did the Minister fail to consider the health of wild salmon? 172 (vi) Did the Minister act in bad faith (T-430-18)? 215 B. Issue 2: Did the Minister breach the duty to consult with ‘N a m g is concerning the PRV Policy Decision (T-430-18)? 290 (

i) Summary of parties’ positions 290 (ii) Standard of review 294 (iii) Jurisprudence 297 (iv) Prior consultation by DFO 298 (

v) Analysis 307 C. Issue 3: Was the decision to issue the Marine Harvest transfer licence reasonable (T-744-18)? 335 (

i) Did the Minister breach the duty to consult? 338 (ii) Was the Swanson Island transfer licence issued in contravention of

section 56 of the FGRs ? 339 (iii) Did the Minister breach the duty of procedural fairness? 340 (iv) Minister’s motion to strike the notice of application 354 (

v) Marine Harvest’s motion to strike Drastil affidavit No. 2 360 D. Issue 4: Remedies 363 (

i) T-1710-16 363

(ii) T-430-18 367 (iii) T-744-18 372 E. Issue 5: Costs 387 (

i) T-1710-16 388 (ii) T-430-18 and T-744-18 394 I. INTRODUCTION [ 1 ] The Fishery (General) Regulations , SOR/93-53 ( FGRs ), made pursuant to the Fisheries Act , R.S.C., 1985, c. F-14 (“ Fisheries Act ” or “ Act ”), form part of Canada’s fisheries management regime. The FGRs require the Minister of Fisheries (Minister) to issue a licence before live fish can be transferred into any fish habitat or fish rearing facility. The Minister may only issue such a licence if the conditions set out in

section 56 of the FGRs are met. These three applications for judicial review all concern challenges to the Minister’s policy of issuing licences for transfers of live salmon into the marine environment without requiring screening for certain disease-causing pathogens and diseases that affect salmon.

Specifically, the Department of Fisheries and Oceans (DFO) has a policy of not testing for Piscine Orthoreovirus (PRV) or Heart and Skeletal Muscle Inflammation (HSMI) disease prior to issuing licences for the transfer of juvenile salmon from land-based hatcheries into marine open-net pens as part of aquaculture operations, or as releases made as part of wild salmon enhancement programs (“PRV Policy” or “Policy”). DFO has reconsidered, but maintained, the PRV Policy on several occasions.

The most recent reconsideration on July 28, 2018, is the decision under review in these matters (PRV Policy Decision). [ 2 ] Alexandra Morton (Ms.

Morton), the applicant in T-1710-16, and ‘N a m g is First Nation (‘N a m g is), the applicant in T-430-18, both challenge the reasonableness of the PRV Policy Decision. ‘N a m g is additionally claims that the Minister breached the duty to consult with ‘N a m g is concerning the Policy. ‘N a m g is has also brought a second application for judicial review, T-744-18, in which it seeks to quash a specific transfer licence issued by DFO to a salmon farm operator, Marine Harvest Canada Inc. (Marine Harvest), on the basis that the licence was issued in contravention of

section 56 of the FGRs , the decision to issue it was unreasonable, the Minister breached the duty to consult with ‘N a m g is prior to issuance of that licence, and that the Minister breached the duty of procedural fairness owed to ‘N a m g is. [ 3 ] The three applications for judicial review were heard consecutively over five days in Vancouver, British Columbia (or B.C.).

In addition, there were ten motions filed in the within applications that the case management Judge Prothonotary Aylen determined were to be dealt with by the applications Judge. [ 4 ] Given the overlap of the facts and issues, I have addressed the three applications together in these reasons and have dealt with the various motions in the context of the application and subject matter within which each arises. II. THE PARTIES A. Ms. Morton [ 5 ] Ms.

Morton is a biologist who, since 1984, has lived and worked in the Broughton Archipelago, which is located in the Queen Charlotte Strait between Vancouver Island and the mainland of British Columbia. This area has a high density of open-net aquaculture sites, or fish farms. Ms. Morton holds a long-standing concern with the potential impact of salmon farming on the marine ecosystem of coastal British Columbia, in particular, with the effect of aquaculture on the health of wild salmon. Ms. Morton is an advocate in this regard. She has previously been granted public interest standing in Morton v.

British Columbia (Agriculture and Lands) , 2009 BCSC 136 , [2009] 7 W.W.R. 690 ( Morton 2009 ), which included a successful challenge of the provincial regulation of salmon farming in British Columbia.

She was also granted standing, jointly with the Raincoast Research Society and the Pacific Wild Coast Salmon Society, in the Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, the results of which are published in Canada, Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, The Uncertain Future of Fraser River Sockeye (Ottawa: Public Works and Government Services Canada, 2012) (Cohen Commission), on the basis of a substantial and direct interest in the question of whether aquaculture is a cause of the decline of the Fraser River sockeye salmon, and the policies and procedures of DFO as they relate to aquaculture. [ 6 ] Additionally, Ms.

Morton was the applicant in Morton v. Canada (Fisheries and Oceans) , 2015 FC 575 , 96 Admin. L.R. (5th) 1 ( Morton 2015 ). While that decision is highly relevant to the current applications, it is sufficient to note here that Ms. Morton successfully challenged certain conditions of an aquaculture licence granted to Marine Harvest concerning the transfer of farmed fish. In Morton 2015 , Justice Rennie noted that Ms. Morton brought that proceeding in the public interest and that her standing was not contested. Similarly, Ms.

Morton’s standing is not contested in her application for judicial review brought in T-1710-16. B. ‘Namgis [ 7 ] ‘N a m g is is a band under the Indian Act , R.S.C., 1985, c. I-5 , and its members are “Aboriginal People of Canada” within the meaning of

section 35 of the Constitution Act , 1982 ,

Schedule B, Canada Act , 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 5] ( Constitution Act, 1982 ). [ 8 ] Don Svanvik, the elected Chief Councillor of ‘N a m g is (Chief Svanvik), provided an affidavit affirmed on March 7, 2018 (Svanvik affidavit), which was filed in both T-430-18 and T-744-18.

The Svanvik affidavit describes, amongst other things, ‘N a m g is’ history, culture and assertions of its Aboriginal rights and title. [ 9 ] ‘N a m g is claims that its traditional territory includes the Nimpkish and Kokish river watersheds on northern Vancouver Island in their entirety, as well as adjacent marine areas in and around Malcolm Island, Cormorant Island, Swanson Island, Hanson Island, Foster Island and the Plumber and Pearce Island Groups, its asserted territory. It considers the Nimpkish River on Vancouver Island to be

situated within the core of its territory and to be of tremendous importance to the community. [ 10 ] ‘N a m g is asserts Aboriginal rights and title throughout its asserted territory, including title to the lands, water, air, marine foreshore and seabed, as well as rights to fishing, hunting, gathering and stewardship. In particular, it asserts that wild Pacific salmon, including sockeye, chum, pink, Chinook and coho, are an integral aspect of ‘N a m g is’ oral history and traditions, way of life, economy, culture, ceremonies, food and trade.

Further, that wild Pacific salmon populations have significantly declined in ‘N a m g is’ asserted territory. C. Minister [ 11 ] The Minister is responsible for the administration of the Fisheries Act . And, pursuant to that Act , the Minister has broad discretion to authorize and issue fishing licences, including aquaculture licences and fish transfer licences. D. Marine Harvest Canada Inc. [ 12 ] Marine Harvest is engaged in the business of fish farming. It is one of four main salmon farming companies in British Columbia.

As of November 2017, it held 56 of the 119 aquaculture licences issued by DFO authorizing the operation of an aquaculture facility in that province. All of Marine Harvest’s facilities are licensed to raise Atlantic salmon. Marine Harvest has 12 fish farms in the Broughton Archipelago area, including the site known as the Swanson Island facility. E. Cermaq Canada Ltd. [ 13 ] Cermaq describes itself as the second largest salmon aquaculture producer in British Columbia, making up approximately 25 percent of the salmon aquaculture industry.

It has 28 fish-farming sites in British Columbia and approximately 20 operating fish farms. Each site holds a marine finfish aquaculture licence issued by DFO and permitting Cermaq to carry out aquaculture activities. Cermaq, together with Marine Harvest, make up approximately 82 percent of the British Columbia salmon aquaculture industry. III. BACKGROUND A. Legislation (

i) Fisheries Act [ 14 ] The Fisheries Act governs fisheries in Canada.

Section 7 of the Fisheries Act gives the Minister broad discretion to issue fishing licences, including aquaculture licences: Fishery leases and licences 7

(1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on. (ii) Fishery (General) Regulations [ 15 ] The FGRs establish a general operational framework for fisheries management. This includes the implementation of any licence conditions necessary for the proper management and control of fisheries, and the conservation and protection of fish, that are not inconsistent with the FRGs or other specified regulations, as set out in subsection 22(1) of the FGRs . [ 16 ]

Part VIII of the FGRs governs the release of live fish into fish habitats or fish rearing facilities. Such transfers are prohibited without a licence:

Interpretation 54 In this part, licence means a licence to release live fish into fish habitat or to transfer live fish to a fish rearing facility. Release or Transfer of Fish 55

(1) Subject to subsection (2), no person shall, unless authorized to do so under a licence, (

a) release live fish into any fish habitat; or (

b) transfer any live fish to any fish rearing facility. (2) Subsection (1) does not apply in respect of fish that is immediately returned to the waters in which it was caught. [ 17 ] Pursuant to

section 56, the Minister may issue a licence if three specified conditions are met: Licence to Release or Transfer Fish 56 The Minister may issue a licence if (

a) the release or transfer of the fish would be in keeping with the proper management and control of fisheries; (

b) the fish do not have any disease or disease agent that may be harmful to the protection and conservation of fish; and (

c) the release or transfer of the fish will not have an adverse effect on the stock size of fish or the genetic characteristics of fish or fish

stocks. [ 18 ] Central to the applications before me is the question of whether the Minister’s

interpretation of

section 56 is reasonable. (iii) Pacific Aquaculture Regulations [ 19 ] Pursuant to subsection 3(1) of the Pacific Aquaculture Regulations , SOR/2010-270 ( PARs ), the Minister may issue an aquaculture licence authorizing a person to engage in aquaculture and other prescribed activities. Such activities are prohibited unless authorized by licence. And, for the proper management and control of fisheries and the conservation and protection of fish, the Minister, in addition to the conditions respecting the matters set out in subsection 22(1) of the FGRs , may specify conditions in an aquaculture licence as set out in

section 4 of the PARs . B. Morton 2009 [ 20 ] In Morton 2009 , the British Columbia Supreme Court held that fish farming in British Columbia is a fishery that falls under exclusive federal jurisdiction pursuant to subsection 91(12) of the Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1 [R.S.C., 1985, Appendix II, No. 5]. As a result of that decision, and as discussed further below, in 2010 DFO assumed regulatory control over the management of aquaculture. C. Fish farm production cycle [ 21 ] Farmed salmon start life in hatcheries. Eggs and milt are collected from adult broodstock salmon. The fertilized eggs are incubated for seven to eight weeks in freshwater land-based hatcheries. Upon hatching, the fish are called alevin.

Once their yolk sacs are absorbed, they are referred to as fry and, for the next year, they are raised in tanks within the hatchery. Once the young salmon are ready to enter salt water, they are referred to as smolts. [ 22 ] Prior to transferring smolts from a freshwater hatchery to a marine (ocean) fish-farm site, the holder of the relevant aquaculture licence must apply for and be granted a transfer licence issued in accordance with

section 56 of the FGRs . The most common type of fish farms in British Columbia are open-net farms in which the fish are contained in a net or cage suspended in the ocean and through which ocean water passes freely. [ 23 ] The smolts remain in the marine fish farms until they are ready to be harvested, approximately two years for Atlantic salmon and 18 months for Chinook salmon. [ 24 ] The number of salmon grown at such a farm during a typical production cycle can range from 200 000 to 650 000 fish.

There are currently 116 licensed marine finfish farms in British Columbia, of which 80 are active, meaning that at any given time there are between 16 and 52 million farmed fish in B.C. waters. There are four main salmon farming companies including Marine Harvest and Cermaq. Atlantic salmon is the main species of farmed salmon produced in B.C., with a smaller number of farm-grown Chinook salmon. There are currently 28 land-based licenced hatcheries. [ 25 ] The transfer of smolts occurs not only in aquaculture, but also in the context of salmon enhancement.

In salmon enhancement, fish are raised in land-based hatcheries until the smolt stage and are then released into the natural marine environment to mature, at which point they become part of the wild salmon population. [ 26 ] The Salmon Enhancement Program (SEP) is licensed by DFO. There are currently 132 SEP licences to grow Pacific salmon for release, 18 are DFO operated hatcheries, 99 are community hatcheries and 15 are classroom facilities. D. PRV and HSMI [ 27 ] As will be discussed below, PRV and HSMI are very topical issues that are the subject of a growing body of rapidly evolving scientific inquiry.

What is not controversial is that PRV is a highly infectious virus. It was first recognized in Norway in 2010 and is now known to be present in Norway, the United Kingdom, Ireland, Chile, the United States and Canada. It was first detected on the west coast of North America in farmed Atlantic salmon through audit samples that were conducted in 2010.

While some scientists believe that PRV in British Columbia first diverged from the Norwegian strain of PRV (Norwegian-PRV) in about 2007, DFO’s current view is that recent testing of tissue samples archived from 1987 to 1994 indicates that a North Pacific variant of PRV (B.C.-PRV) has been present in salmonids on the Pacific coast of North America for a much longer time. PRV is now found in both farmed and wild salmon in British Columbia as well as other species of fish. [ 28 ] HSMI is an infectious disease.

According to DFO, it was described for the first time in farmed Atlantic salmon in 1999 in Norway, where it has emerged as a production concern for Norwegian salmon aquaculture. In Norway, HSMI is currently among the top four most common salmonid aquaculture diseases, the number of outbreaks occurring each year increasing from 54 to 142 between 2004 and 2012. [ 29 ] In Norway, HSMI is characterized by mortality that ranges from negligible up to 20 percent and morbidity as high as 100 percent within affected populations.

In Norwegian fish farms, clinical signs of HSMI usually occur 5–9 months after sea transfer and include abnormal swimming behaviour, loss of appetite or anorexia, and loss of condition. HSMI has now been reported in farmed Atlantic salmon in Scotland, Chile and Norway. In 2017, it was also confirmed in one Atlantic salmon farm in British Columbia by a study of tissue samples that were collected in 2013–2014. [ 30 ] More controversial is the link between PRV, HSMI, and other diseases. In 2017, a Norwegian study found PRV to be the cause of HSMI in Atlantic salmon.

However, in Canada, a PRV challenge study conducted in 2016 concluded that the B.C.-PRV strain, while transmissible or infectious, was of low pathogenicity to Chinook, sockeye and Atlantic salmon. That is, while experimentally infected fish may carry large B.C.-PRV virus loads, the virus does not cause disease or mortality in those species. No other disease agent has been identified as the cause of HSMI in British Columbia. PRV has also been associated with other diseases, including jaundice.

[31] The heart of Ms. Morton’s and ‘Namgis’ applications are that the DFO’s policy of not testing for PRV puts wild Pacific salmonat risk. E. Morton 2015 [32] Ms. Morton, in Morton 2015, raised the question of whether certain licence conditions contained in an aquaculture licencegranted to Marine Harvest for its operations at Shelter Bay, British Columbia, met, or were consistent with,

section 56 of the FGRs. [33] Condition 3.1 of the subject licence concerned the transfer of fish: 3. Transfer of Fish 3.1 The licence holder may transfer to this facility live Atlantic or Pacific salmonids from a facility possessing a valid aquaculture licenceissued pursuant to

section 3 of the Pacific Aquaculture Regulations between Fish Health zones described in Appendix VI, providedtransfers occur within the same salmonid transfer zone as outlined in Appendix II and provided: (a) … (

b) the licence holder has obtained written and signed confirmation, executed by the sources facility’s veterinarian or fish health staff,that, in their professional judgment: (

i) mortalities, excluding eggs, in any stock reared at the source facility have not exceeded 1% per day due to any infectious diseases, forany four consecutive day period during the rearing period; (ii) the stock to be moved from the source facility shows no signs of clinical disease requiring treatment; and (iii) no stock at the source facility is known to have had any diseases listed in Appendix IV; or (iv) where conditions 3.1(b)(

i) and/or 3.1(b)(iii) cannot be met transfer may still occur if the facility veterinarian has conducted a riskassessment of facility fish health records, review of diagnostic reports, evaluation of stock compartmentalization, and related biosecuritymeasures and deemed the transfer to be low risk. [34] Justice Rennie, then of this Court, found that condition 3.1 of the licence authorizing the transfer of fish was derived from PartVIII of the FGRs and that the terms of the licence were required to comply with

section 56 of those regulations. [35] Further, that the question of whether the licence satisfied its governing regulatory provisions could be resolved by analogy to thefirst principles of statutory

interpretation. That is, just as a regulation that is inconsistent with the enabling substantive statutoryprovisions cannot carry out the purposes of the act, nor can any condition of a licence that conflicts with substantive regulatoryprovisions carry out the purposes of the regulatory scheme. In that regard, subsection 22(1) of the FGRs stipulated that a licencecondition could not conflict with the FGRs or grant that which the FGRs excluded.

Justice Rennie concluded [at paragraphs 56–57] that: The plain meaning of the language “any disease or disease agent” suggests that the phrase is not limited to only those few diseasesprescribed by policy as listed in Appendix IV. The Minister’s legal duty under

section 56 extends to any disease or disease agent that“may be harmful to the protection and conservation of fish.” Interpreting

section 56(

b) in this manner is consistent with a purposive andcontextual approach, as it supports conservation of the resource, the Minister’s primary obligation under the Fisheries Act: R v Marshall, (SCC), [1999] 3 SCR 533 at para 40. It is also consistent with the precautionary approach which the Minister says wastaken into account. I will address this issue further in

Part VII of these reasons. Again, a purposive, contextual and plain meaning analysis of the language “that may be harmful” suggests this phrase means anydisease or disease agent that might be harmful to the protection and conservation of fish. This interpretive approach is again consistentwith the precautionary principle, the essence of which is that where a risk of serious or irreversible harm exists, a lack of scientificcertainty should not be used as a reason for postponing or failing to take reasonable and cost-effective conservation and managementmeasures to address that risk (Cohen Commission vol 3 at 20).

I note, in this regard, that although HSMI was first identified in 1999, itwas in Scotland in 2005 and subsequently in Chile, it would be an unreasonable inference to draw from the evidence that it will notappear in farmed Atlantic salmon on the Pacific Coast. [Emphasis in original.] [36] Justice Rennie then found that conditions 3.1(b)(

i) and (iii) were reasonably consistent with paragraph 56(

b) of the FGRs.Condition 3.1(b)(

i) established clear, objective criteria governing transfers that were demonstrably linked to paragraph 56(

b) of theFGRs. Condition 3.1(b)(iii) precluded transfers where stock was known to have had a listed disease that could severely impact fisheries.That is, condition 3.1(b)(iii) was a reasonable articulation of the paragraph 56(

b) requirement that a fish transfer occur only where thefish do not have any disease or disease agent that may be harmful to the protection and conservation of fish. [37] However, conditions 3.1(b)(ii) and (iv) were inconsistent with paragraph 56(

b) of the FGRs. Condition 3.1(b)(ii), by allowing alicence holder to transfer fish if the stock “shows no signs of clinical disease requiring treatment”, maintained a lower standard thanprescribed by, and contradicted the plain wording of paragraph 56(b), which stipulates that no transfer can take place if the fish have“any disease or disease agent” that may be harmful.

Justice Rennie held that showing no sign of disease was a lower threshold than theregulatory scheme demanded, being that the fish “do not have any disease or disease agent.” Further, the FGRs are directed to the healthof the resource generally, and not the health of the farmed product or stock. As drafted, condition 3.1(b)(iii) was unclear as to whether orhow Marine Harvest’s staff were to determine if the fish had any disease or disease agent.

Justice Rennie found that there was no nexusor scientific linkage between the regulatory requirement (directed to the protection of the resource) and the licence condition (directed tothe stock). [38] As to condition 3.1(b)(iv), this allowed the licence holder to override conditions 3.1(b)(

i) and 3.1(b)(iii) if the facilityveterinarian conducted a risk assessment and considered the transfer to be “low risk.” Justice Rennie found that this circumvented

paragraph 56(

b) of the FGRs and the regulatory requirement imposed on the Minister to allow transfers only where fish “do not have any disease or disease agent that may be harmful to the protection and conservation of fish.” Effectively, the condition circumvented the paragraph 56(

b) regulatory requirements and licensed Marine Harvest to transfer through less rigorous conditions than required by law. Further, the Minister improperly sub-delegated to Marine Harvest, the licensee, the ultimate determination as to whether a transfer was permissible. [ 39 ] Additionally, conditions 3.1(b)(ii) and (iv) were inconsistent with paragraph 56 (

b) of the FGRs in light of the precautionary principle. Justice Rennie found that paragraph 56 (b), properly construed, embodied the precautionary principle [at paragraphs 97–99]: In my view, subsection 56 (

b) of the FGRs , properly construed, embodies the precautionary principle. First, subsection 56(

b) prohibits the Minister from issuing a transfer licence if disease or disease agents are present that “may be harmful to the protection and conservation of fish.” The phrase “may be harmful” does not require scientific certainty, and indeed does not require that harm even be the likely consequence of the transfer. Similarly, the scope of “any disease or disease agent” in subsection 56(

b) should not be interpreted as requiring a unanimous scientific consensus that a disease agent (e.g., PRV) is the cause of the disease (e.g., HSMI). The consequence of interpreting subsection 56(

b) consistently with the precautionary principle is that the licence conditions must also reflect the precautionary principle. As the licence conditions cannot derogate from or be inconsistent with subsection 56(b), they therefore cannot derogate from the precautionary principle. As noted earlier, the Minister did not attempt to justify that licence condition 3.1(b)(iv) was consistent with the precautionary principle, but confined his argument in this respect to licence conditions 3.1(b)(i), (ii) and (iii). In my view, the Minister’s argument cannot stand. For the reasons given, conditions 3.1(b)(ii) and (iv) are inconsistent with

section 56(

b) and thus with the precautionary principle. The conditions dilute the requirements of subsection 56(b), a regulation designed to anticipate and prevent harm even in the absence of scientific certainty that such harm will in fact occur. [ 40 ] Accordingly, conditions 3.1(b)(ii) and (iv) were found to be of no force and effect and were severed from the aquaculture licence issued to Marine Harvest. [ 41 ] In June 2016, the Minister filed a notice of appeal of Justice Rennie’s decision in Morton 2015 . The appeal was discontinued in January 2017. F.

Transfer licensing post- Morton 2015 [ 42 ] Justice Rennie suspended his judgment for four months from the date of its issuance. On September 8, 2015, in conjunction with the end of that period, the Minister issued amended aquaculture licences. These included condition 3.3: 3.3 From September 8, 2015 until further notice, the licence holder may not carry out transfers pursuant to

section 3.1 herein. During that period the licence holder must apply to the BC Introductions and Transfers Committee to obtain an authorization to transfer fish. [ 43 ] DFO’s evidence is that condition 3.3 is still in place and that DFO intends to continue the requirement that marine finfish aquaculture licence holders obtain a separate authorization through the B.C.

Introductions and Transfers Committee (ITC) to move fish into and between farm sites, and plans to make this requirement a standard licence condition when aquaculture licences are renewed in 2022 and beyond. [ 44 ] Currently, for every transfer between land-based hatcheries and marine salmon farm sites, and between marine salmon farm sites, aquaculture operators are required to submit an Introduction and Transfer Licence Application, as well as a Fish Health Attestation Form executed by the source facility’s veterinarian, fish health staff or facility manager, which, together with other information, are assessed by the ITC.

The ITC then makes a recommendation to the DFO Regional Manager, Aquaculture Programs, that the application be allowed or allowed with additional licence conditions. The DFO Regional Manager, as the Minister’s delegate, then considers the recommendation and decides whether to issue a transfer licence on behalf of the Minister, under the authority of the FGRs . IV. THE PRV POLICY [ 45 ] As noted above, the Minister has effected a PRV Policy that allows transfer licences to be issued under

section 56 of the FGRs without testing the fish to be transferred for PRV and HSMI. The Policy appears to be unwritten, and it is unclear from the record when the PRV Policy first came into effect. However, the record does indicate that the Minister, through his delegate, has made six decisions to continue the PRV Policy between June or July 2015 and the most recent decision made on June 28, 2018. A.

Previous decisions [ 46 ] It is useful to summarize the previous PRV Policy decisions and the materials upon which they are based on as contained in the certified tribunal records (CTR), specifically the further further amended rule 318 [ Federal Courts Rules , SOR/98-106 ] certified tribunal record of the Minister of Fisheries and Oceans dated June 29, 2018, in T-1710-16 and the amended rule 318 certified tribunal record filed in T-430-18, as they illustrate that the delegate’s decisions to continue the Policy are, in effect, a series on ongoing decisions culminating in the June 28, 2018, PRV Policy Decision, which is under review in these applications. (

i) June – July 2015 decision There is no written record of this decision. The CTR contains: (

a) May 2014 DFO web statement regarding PRV;

(

b) June 26, 2015, internal email regarding a statement concerning PRV; (

c) DFO Publication, Regulating and Monitoring British Columbia’s Marine Finfish Aquaculture Facilities 2011–2014 . (ii) September 2015 decision There is no written record of this decision. The CTR contains: (

a) A final draft for endorsements, with tracked changes, of “Assessment of the Occurrences, Distribution and Potential Impacts of Piscine Reovirus on the West Coast of North America”, prepared by the Canadian Science Advisory Secretariat (CSAS). (iii) June 2016 decision There is no written record of this decision. The CTR contains: (

a) June 2016 DFO web statement regarding PRV; (

b) September 11, 2015 (approved) Canadian Science Advisory Secretariat (CSAS), Science Response 2015/037 , “Assessment of the Occurrence, Distribution and Potential Impacts of Piscine Revirus on the West Coast of North America” (2015 CSAS Science Response); (

c) DFO publication Regulating and Monitoring British Columbia’s Marine Finfish Aquaculture Facilities 2011–2014 . (iv) January 30, 2017 decision Decision – Memorandum for the Regional Director General, “Management Approach to PRV and HSMI for Fish Transfers in British Columbia (For Decision)”, which was approved on January 30, 2017 (RDG Memorandum). The CTR contains: (a) 2015 CSAS Science Response (an attachment to the RDG Memorandum); (

b) Science Overview of PRV and HSMI (DFO) (an attachment to the RDG Memorandum); (

c) The Minister of Fisheries and Oceans’ (Minister)

interpretation of

section 56 of the Fishery (General) Regulations ( FGRs ) (Minister’s

Interpretation) (an attachment to the RDG Memorandum); (

d) Mortality Events Reported in B.C. 2011–2015 (an attachment to the RDG Memorandum); (

e) Draft DFO web statement “Piscine Orthoreovirus (PRV) and Heart and Skeletal Muscle Inflammation (HSMI)”. (

v) March 9, 2018 decision Decision – mail dated March 9, 2018, from Allison Webb, Regional Director General (RDG), confirming that DFO will continue the PRV Policy. The CTR contains: (

a) March 5, 2018, Centre for Science Advice Pacific FPP non-CSAS Request for Rapid Science Response (“March 2018 Rapid Science Response” or “March RSR”); (

b) RDG Memorandum; (c) 2015 CSAS Science Response; (

d) Science Overview of PRV and HSMI (DFO); (

e) Minister’s

Interpretation; (

f) Mortality Events Reported in B.C. 2011–2015; (

g) February 19, 2018, Draft DFO Internet Posting “Piscine Orthorevirus (PRV) and Heart and Skeletal Muscle Inflammation (HSMI)”; (

h) Table of 2016 B.C. Mortality events; (

i) Tables of aquaculture reporting compliance 2011–2017 (DFO). (vi) June 28, 2018 decision Decision – email dated June 28, 2018, from Allison Webb, RDG, confirming that DFO will continue the PRV Policy.

The CTR contains: (

a) June 27, 2018 (approved) – Centre for Science Advice Pacific FPP non-CSAS Request for Rapid Science Response (“June 2018 Rapid Science Response” or “June RSR”); (

b) March 2018 Rapid Science Response; (

c) RDG Memorandum; (d) 2015 CSAS Science Response; (

e) Science Overview of PRV and HSMI (DFO); (

f) Minister’s

Interpretation; (

g) Mortality Events Reported in B.C. 2011–2015; (

h) February 19, 2018, Draft DFO Internet Posting “Piscine Orthorevirus (PRV) and Heart and Skeletal Muscle Inflammation (HSMI)”; (

i) Table of 2016 BC Mortality events; (

j) Tables of aquaculture reporting compliance 2011–2017 (DFO); (

k) Document entitled Regulating and Monitoring British Columbia’s Marine Finfish Aquaculture Facilities 2017 (DFO). B. Decision under review [ 47 ] The June 28, 2018, email from Allison Webb, the RDG and Minister’s delegate, to two other DFO members, Melanie McNabb and Lauren Lavigne, comprises the decision under review.

It states as follows: Melanie and Lauren – Based on the most recent advice received from Science Branch (Centre for Science and Advice Pacific) on June 27, 2018 which I have read as well as considering the background documents here, DFO will continue the policy approach explained in the briefing note signed on January 30, 2017 that explains that the Department will not test for PRV and HSMI prior to transfers of fish. This is germane to what information is considered before making decisions regarding s. 56 of the FGR.

DFO will continue to actively monitor this area and as new information becomes available consider whether changes will be required in our current management approaches. [ 48 ] The background documents attached to this email are those contained in the amended rule 318 CTR for T-430-18, which documents are also found in the further further amended CTR for T-1710-16. [ 49 ] It is necessary to devote some time to describing certain of these documents because they set out the science background utilized by DFO in confirming the PRV Policy, and demonstrate how DFO has responded to new science concerning PRV and HSMI. (i) 2015 CSAS Science Response [ 50 ] The Canadian Science Advisory Secretariat, or CSAS, is a DFO entity that responds to requests for science advice or questions.

This can be done by way of a full Science Peer Review Process, which produces a Science Response summarizing key research findings and which can take up to six months to produce, or by a Science Response Process if a faster response is needed. [ 51 ] The 2015 CSAS Science Response notes that concerns have been raised regarding the presence of PRV in farmed fish on the Pacific Coast and the potential impacts to the health of wild salmonid populations arising from the transfer of hatchery reared fish that carry this virus to marine-based aquaculture facilities.

As the advice sought was required within four weeks, a CSAS Science Response was utilized. [ 52 ] The report is, in essence, a technical review of data and studies from a variety of sources which are identified therein. There were four contributors, three from DFO and one (Dr. Gary Marty) from the British Columbia Ministry of Agriculture, and three reviewers, two from the U.S. Geological Survey, Western Fisheries Research Centre and one from the Alaska Department of Fish and Game, Commercial Fisheries Division.

It was approved by Carmel Lowe, Regional Director, Science Branch, Pacific Region, DFO, on September 11, 2015. [ 53 ] Based on the review, it finds, amongst other things, that, - BC-PRV occurs in wild salmonids in western Canada and the US and there is uncertainty about the prevalence of the virus among species and life-history stages of wild Pacific salmon and among farmed salmon in western Canada; - controlled laboratory experiments in Chinook, sockeye and Atlantic salmon provide good evidence that infection with BC-PRV does not cause disease in those species and that the absence of associated mortality or pathology in infected fish exhibiting high viral loads also indicates that BC-PRV is of low pathogenicity although, apart from an absence of disease, the challenges resulted in similar infectivity and distribution in host tissues as described for Norwegian PRV obtained from fish with HSMI (the report notes that in Norway many challenge studies and diagnostic testing of samples for HSMI outbreaks have provided evidence towards an association between PRV and HSMI); - diagnosis of HSMI is by combination of clinical signs (usually occurring 5–9 months after sea transfer and including abnormal

swimming behaviour, anorexia and up to 20% mortality) confirmed by histological examination of tissues. Based on the current state of knowledge, there have been no reports of HSMI in farmed or wild fish in British Columbia, Washington or Alaska.

While idiopathic cardiomyopathy (heart muscle disease of an unknown cause) had previously been reported in British Columbia farmed salmon, including HSMI-like lesions first diagnosed as the probable cause of death nine years earlier (referencing the Cohen Commission), because skeletal muscle was not sampled as part of the DFO Audit Program until 2013, it has only been after that time that it has been determined that a few cases of idiopathic cardiomyopathy in British Columbia match the pattern of microscopic lesions associated with HSMI in Norway.

A retrospective analysis of test results for PRV of Audit Program samples from 2009 found PRV to be common and not associated with any cause of mortality, including idiopathic cardiomyopathy. In

summary, there is no combined clinical and histological evidence for the occurrence of HSMI in farmed salmonids in British Columbia. There is a low prevalence of idiopathic cardiomyopathies of unknown cause(

s) in audit samples, with 0.2% of fish examined since 2014 having signs of significant inflammations of both heart and skeletal muscles.

If it is assumed that those lesions are caused by an infectious agent, the low percentage of infected fish suggests that it is not a highly infectious disease; - as to an evaluation of the adequacy of current farm-based and wild monitoring practices to detect HSMI or other diseases possibly associated with PRV, this describes fish health auditing and reporting measures for farmed fish, and states that diagnostic evaluations of farmed salmon conducted by aquaculture companies, the Province and DFO are highly likely to have found evidence of HSMI in BC assuming a similar presentation as seen in Norway (clinical symptoms).

As all of the aquaculture companies in BC also farm Atlantic salmon in Norway where HSMI is common, it is unlikely that their veterinarians, other fish health staff or managers would not be aware of the clinical signs of HSMI. In

summary, assuming a similar clinical presentation of HSMI in BC farmed salmon as seen in Norway, company veterinarians and or government audit programs would be expected to have identified HSMI if it were present; - the above information is then summarized as factors that should be considered in any evaluation of risk posed to wild Pacific salmon, as well as key uncertainties including that the role that PRV plays in the development of HSMI in Norway remains unclear; - based on the information available, it concludes that the ubiquitous nature of PRV, its apparent long-time presence in wild Pacific salmonid stocks, and the lack of a clear association with disease in laboratory challenge trials suggests a low likelihood that the presence of the virus in any life stage of farmed Atlantic and Pacific salmon would have a significant impact on wild Pacific salmon populations. (ii) January 30, 2017 RDG Memorandum [ 54 ] In its

summary, the 2017 RDG Memorandum notes that research confirming the presence of HSMI in one Atlantic salmon farm in British Columbia in 2013/2014 would be published shortly (this reference is to the study ultimately published as Di Cicco et al. (2017) “Heart and Skeletal Muscle Inflammation (HSMI) disease diagnosed on a British Columbia salmon farm through a longitudinal farm study”, PLoS ONE 12(2): e01271471, online: https://doi.org/10.1371/journal.pone.0171471 (Di Cicco 2017)).

The Memorandum notes that this new research would document the development of HSMI at one marine salmon farm, resulting in low level mortality. Further, that information from DFO’s audit program, industry reports, and DFO scientists does not show elevated fish mortalities associated with disease in BC. Given the current science knowledge and the mortality reporting to date, the Memorandum recommends that DFO maintain its policy of not testing for PRV and HSMI prior to transfers of fish as PRV and HSMI are not of serious concern in B.C. [ 55 ] The Background

section of the document references the 2015 CSAS Science Response and summarizes the Minister’s

Interpretation of paragraph 56(b). Under Science Advice, it states that a peer-reviewed

article in a top tier journal, PloS ONE , confirming the presence of HSMI in one Atlantic salmon farm in B.C., will be published within the next three weeks. That

article will document the development of HSMI at that farm over an 11-month period resulting in a low level of mortality (<2 percent). That level of mortality is at the low end of estimates from outbreaks in Norwegian farms (0–20 percent) and, although the number of reported cases in Norway has increased over the years, this does not inform DFO of whether the severity of disease had increased or not. Further, while PRV is widely considered the leading cause of HSMI, its role in the development of HSMI and other diseases is uncertain.

There are a number of strains of the PRV virus and it is not yet known if some are more prone to result in disease, if species susceptibility differs among strains and/or if other factors are involved in disease development. PRV variants have been associated with diseases in Atlantic and coho salmon as well as rainbow trout.

PVR has been documented in aquaculture and wild fish on both the Atlantic and Pacific coasts; challenge trials in B.C. have demonstrated that despite infection with loads of PRV similar to or higher than PRV loads reported in Atlantic salmon with HSMI lesions in Norway, Atlantic, sockeye and Chinook salmon have failed to exhibit any symptoms of the disease. And, while PRV is found in wild Pacific fish, there have been no reports of HSMI in wild fish in B.C., Washington or Alaska.

The Memorandum notes that as PRV and HSMI are globally active areas of scientific research, new findings on the virus, the disease and the links between them are emerging at an incredibly rapid pace. [ 56 ] It recommends a

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