In Morton v
Canada (Fisheries and Oceans), 2015 FC 575, the Federal court
put unusually strong reliance on the precautionary principle to
strike down parts of an aquaculture licence granted by the Minister of Fisheries and Oceans (the
"Minister") to Marine Harvest, a multinational seafood
Marine Harvest operated a fish farm in Shelter Bay, BC, not far
from the wild Pacific salmon migration route along the Fraser
River. In March, 2013, the company transferred infected Atlantic
salmon from one of its hatcheries to Shelter Bay. The Fisheries Act aquaculture licence allowed them
to do it, because both the hatchery and the fish farm were within
the same "Salmonid Transfer Zone".
Alexandra Morton, a noted biologist, launched a
court challenge against the Minister and Marine Harvest in Federal
Court. Ms. Morton successfully argued that allowing this movement
of infected smolts conflicted with the overriding requirements of
the Fishery (General) Regulations, SOR/93-53
(FGRs), which prohibit fish transfers that may adversely affect
wild fish or harm their protection and conservation.
The 2012 Commission of Inquiry into the Decline of Sockeye
Salmon in the Fraser River concluded that there is some risk
posed to wild sockeye salmon from diseases on fish farms. It
recommended that ensuring the health of wild stocks should be
"DFO's number one priority in conducting fish health
work" (Cohen Commission, The Uncertain Future of Fraser River
Sockeye, vol 2 at 113 and vol 1 at 474).
The Minister argued that that the court should be highly
deferential to his department's expertise on complex matters of
fisheries science. Since he was satisfied that the virus in the
infected smolts had not been proven to cause disease in wild
Pacific salmon, his decision must be presumed to be reasonable
unless Ms. Morton could prove otherwise.
Fortunately, the Court disagreed.
Under the precautionary principle, a lack of full scientific
certainty (in this case, how harmful the virus is to wild Pacific
salmon) does not excuse lax regulation. Allowing the transfer of
infected fish into open pens near the wild fish run did not err on
the side of caution, and did not reflect the precautionary
 The evidence before the Court demonstrates that there is a
body of credible scientific study, conducted by respected
scientists in different countries, establishing a causal
relationship between PRV [the virus] and HSMI [the disease]. The
evidence also indicates that there are scientists who question the
link – but concede that no other disease agent has been
identified as the culprit for HSMI. ... Thus, although there
is a healthy debate between respected scientists on the issue, the
evidence 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".
The Federal Court accepted the precautionary principle as a norm
of substantive Canadian law, to be used in the interpretation of
all statutes and regulations. The Marine Harvest license conditions
were invalid, and conflicted with section 56 of the FGRs, both as a
matter of general statutory interpretation and because the FGRs
must be interpreted through the lens of the precautionary
 The precautionary principle recognizes, that as a matter of
sound public policy the lack of complete scientific certainty
should not be used as a basis for avoiding or postponing measures
to protect the environment, as there are inherent limits in being
able to predict environmental harm. Moving from the realm public
policy to the law, the precautionary principle is at a minimum, an
established aspect of statutory interpretation, and arguably, has
crystallized into a norm of customary international law and
substantive domestic law...
 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
This may be the strongest, most nuanced judicial statement
on the precautionary principle in Canada since the Supreme Court of
Canada first recognized it in 114957 Canada Ltée (Spraytech,
Société d'arrosage) v Hudson (Town), 2001 SCC
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