In May of this year, the Federal Court released a decision that
affirms the importance of the precautionary principle in the
management of fisheries.
The decision (Morton v Canada (Fisheries and Oceans),
2015 FC 575) comes as a result of a challenge, launched by
lawyers at Ecojustice on behalf of biologist Alexandra Morton, to
an aquaculture licence granted by the Minister of Fisheries and
Oceans (the "Minister") to Marine Harvest, a
multinational seafood company. (Full
disclosure: I assisted, albeit very minimally, on this file while
employed as an articling student with Ecojustice).
Marine Harvest operated a fish farm at Shelter Bay, BC under the
authority of a licence issued by the Minister. In March, 2013, the
company transferred Atlantic salmon from one of its hatcheries that
were infected with piscine reovirus, (PRV) a virus linked to heart
and skeletal muscle inflammation—itself an infectious disease
found in farmed salmon—into pens at a fish farm located
within proximity to the salmon migration route along the Fraser
The licence that purportedly granted Marine Harvest the
authority to transfer the diseased salmon contained certain
conditions governing the transfer of smolts from hatchery to farm.
Ms. Morton argued, in essence, that these conditions were invalid,
among other reasons, because they conflicted with regulatory
requirements prohibiting the transfer of fish in such a way that
would be harmful to the protection and conservation of fish would
or would adversely affect fish.
The Minister had argued that the various licence conditions were
both reasonable and reflected a precautionary approach to fish
Justice Rennie was unmoved by the Minister's assertion,
 ... although there is a healthy debate between respected
scientists on the issue, the evidence, [sic] suggests that the
disease agent (PRV) may be harmful to the protection and
conservation of fish, and therefore a "lack of full scientific
certainty should not be used a reason for postponing measures to
prevent environmental degradation": Spraytech at para 31.
 ... it is not, on the face of the evidence, open to the
respondents to assert that the licence conditions permitting a
transfer of PRV infected smolts reflect the precautionary
principle. The Minister is not, based on the evidence, erring on
the side of caution.
After invalidating several conditions of the licence on
other grounds, Justice Rennie went on to emphasize the
importance of the precautionary principle as a "second
basis" for the invalidity of the licence conditions (para 96).
He found that a proper reading of the applicable section of the
regulations governing the overall management of fisheries embodied
the precautionary principle and, as such, must (along with any
licence conditions) be consistent with it:
 In my view, the Minister's argument cannot stand. For
the reasons given, [the licence conditions] are inconsistent with
section 56(b) [of the regulation] 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
The precautionary principle is touchstone principle in
environmental law. It underscores that a lack of absolute
scientific certainty should not be used as a basis for postponing
or avoiding altogether measures aimed at protecting the
environment. In international law, it finds its roots in Article 15
the 1992 Rio Declaration on Environment and Development and is
referenced in a range of federal and provincial environmental
statutes and policies in Canada, including the Pest Control
Products Act, SC 2002, c 28 (section 20) and the Oceans
Act, SC 1996, c 31 (Preamble, section 30).
The decision also reinforces similar findings cited in the Cohen Commission's 2012 report on the state
of Fraser River sockeye salmon regarding the relevance of the
precautionary principle to the management and conservation of
Fraser River sockeye.
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