Federal court dismisses B.C. First Nation's bid to block fish farm restocking

The 41-page decision said the 'Namgis application for the injunction was rejected because of its timing, which came just days before Marine Harvest had planned to release one million Atlantic Salmon smolts into net pens.

Court said there is 'likelihood of harm' from fish-borne disease, but rejected injunction because of timing

The 'Namgis First Nation wanted to stop Marine Harvest transferring up to one million juvenile Atlantic salmon to the company's Swanson Island farm. (Hans-Petter wikimedia)

A B.C. First Nation has lost its court bid to prevent the restocking of an open-net salmon farm in its traditional territories off northern Vancouver Island.

The 'Namgis First Nation had asked the Federal Court for an injunction against Marine Harvest that would have blocked the company from transferring up to one million juvenile Atlantic salmon, known as smolts, to its Swanson Island farm.

It also applied for an injunction against the fisheries minister as part of a broader application for a judicial review of federal policy that does not require fish to be tested for piscine reovirus or heart and muscular disease before being transferred to a farm.

Justice Michael Manson issued a 41-page decision on Friday agreeing there is a "real and non-speculative likelihood of harm" to the 'Namgis way of life from fish-borne disease — but he rejected an injunction on the transfer of the smolts because of its timing.

He found Marine Harvest had informed the 'Namgis on Dec. 21, 2017, that it intended to restock the Swanson Island farm in early spring.

Marine Harvest has operated for 28 years in compliance with Fisheries and Oceans Canada requirements for transferring fish, court documents showed. (CBC News)

Application came too late

The application to halt the restocking was not filed until March 9, 2018, "mere days before the transfer was set to begin," Manson wrote. He said the late notice prevented the company from finding room for the smolts in any of its other B.C. fish farms.

Marine Harvest testified that smolts raised at a freshwater facility would be ready for transfer to salt water within a short window and any delay could be deadly, potentially costing the company $2.1 million when loss of the smolts and costs of preparing other pens were tallied.

"Furthermore, the ['Namgis'] delay in bringing this motion has exacerbated this problem, such that this harm can no longer be avoided," said Manson.

Marine Harvest has operated for 28 years in compliance with Fisheries and Oceans Canada requirements for transferring fish, court documents showed, and the ruling also said Marine Harvest has made "good faith" attempts at consultation with the First Nation.

Judge criticizes DFO

Another hearing must consider the 'Namgis application for the judicial review of federal policy on the testing of Atlantic salmon for diseases that could be passed to Pacific salmon, Manson ruled.

But his decision was critical of Fisheries and Oceans, finding it had failed to consult with the 'Namgis about the policy and has no "supervisory control or objective criteria" regarding tests for disease in fish being transferred to open pens.

"It is my opinion that the underlying application for judicial review should proceed as expeditiously as possible," Manson said.