Canada: Recent Decision Affirms Precautionary Principle

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 River.

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 transfers.

Justice Rennie was unmoved by the Minister's assertion, holding that

[45] ... 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.

[46] ... 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:

[99] 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 occur.

The precautionary principle is a 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).

Although both the Minister and Marine Harvest are appealing the decision to the Federal Court of Appeal, the decision contributes to a growing body of jurisprudence in Canada—most notably with the Supreme Court of Canada decisions in 114957 Canada Ltée (Spraytech, Société d'arrosage) v Hudson (Town), 2001 SCC 40 and Castonguay Blasting Ltd. V Ontario (Environment), 2013 SCC 52—that recognizes the importance of the precautionary principle in informing the scope and application of environmental legislation.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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