In the landmark decision of Morton v. British Columbia
(Agriculture and Lands) (9 February 2009) the British Columbia
Supreme Court held that the Government of British Columbia had no
jurisdiction to regulate fish farms throughout the province and
declared that the authority to do so was vested solely in the
federal government, under section 91(12) of the Constitution
The constitutional challenge arose in response to the provincial
government's decision to renew a fish farm license of Marine
Harvest Inc. Canada, which operates a twenty-hectare fish farm
containing approximately 600,000 Atlantic salmon in the Broughton
Archipelago, off the coast of British Columbia. The petitioners,
environmental activists, alleged that the license should not have
been renewed because of the environmental damage caused by fish
farms, including the proliferation of sea lice, chemical waste, and
diseases in surrounding waters, and the disruption of migratory
routes of Pacific salmon.
Since 1988, fish farms in British Columbia had been regulated
solely by provincial legislation, pursuant to the terms of an
agreement between the Province and the federal government. The
court held, however, that the agreement did not validly delegate
the constitutional authority of Parliament to grant fish farm
licences to the Province.
The court rejected the Province's contention that fish farms
(or "aquaculture") did not constitute a fishery, but
instead agriculture, a subject matter over which the Province had
exclusive jurisdiction under section 95 of the Constitution
Act, 1867. The court also rejected the Province's argument
that it had jurisdiction to issue fish farm licences pursuant to
its constitutional powers over the management of lands, property
and civil rights, or matters of a local and private nature.
The court suspended its ruling for twelve months to provide the
federal and provincial governments adequate time to establish a
constitutionally valid regulatory regime over fish farms throughout
the province. Given this result, it also denied the
petitioner's application for a declaration that British
Columbia did not have jurisdiction to renew the licences at issue
in the proceeding.
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