Zombie litigation

We’ve lost count of the number of rounds we’ve gone with salmon farmers in the courtroom. We’ll be back for the nth time later this year, as MOWI tries to appeal a ruling on the Discovery Islands farm closures. 

This one relates to the decision by then Fisheries Minister Joyce Murray, who in February of 2023 declined to re-issue licences for 15 Discovery Islands salmon farms. Her decision was upheld by the Court in June, 2024 and the farms have in fact been closed since December, 2020. Efforts to revive these licences through the courts have dragged on into a fifth year. 

The main issue seems to be the science. DFO continues to base its advice to the Minister on those Canadian Science Advisory Secretariat (CSAS) reports we’ve been so critical about. Independent science has up-ended many of their findings, yet no effort has been made by the Department to synthesize the new work—probably because it would be impossible to continue to advise that salmon farms pose ‘no more than minimal’ risk to wild sockeye salmon. The Minister consulted more broadly on science, speaking to researchers at Canada’s universities and the Pacific Salmon Foundation, who authored the independent work.  

MOWI contends that the Minister can’t do her own research: that she must take her science advice from CSAS. The argument was summarized in the judgment (that rejected it) as follows: 

“The Operators had legitimate expectations that the Minister would rely on the established process for seeking science advice in decision-making. Given that the Minister placed significant weight on “scientific uncertainty” from non-CSAS science, which was largely sought out after the consultation period, the Minister was required to provide notice of and an opportunity to respond to the role of non-CSAS science.” 

Problem is, the process is not “established”, nor were MOWI or other operators unaware of the current “non-CSAS” science. DFO briefed them on that science before it ever advised the Minister of its existence and you can bet that their conversation with industry was a lot more detailed than the cursory briefing note that went to the Minister’s office. In any event, the court had no difficulty rejecting the argument and holding that the Minister’s process for reaching her decision was fair. 

Now, it seems, we’re going to test that conclusion. 

Imagine the repercussions, should it be held that any Minister must confine his or her decisions with respect to science to the advice given by his or her Department. All it would take would be a few bad apples, captured regulators or distracted, overworked scientists to confine the Minister to a potentially disastrous decision. In our own work, we are often bringing new science to the table, papers that regulators have not even begun to consider integrating into their implementation of the law. Bureaucracies are inherently conservative and slow, while new threats to environmental integrity seem to appear at an alarming pace. By the time a bureaucracy gets around to evaluating and acting on a threat, the “pre” in precautionary may have lost all meaning! 

Follow us as we attempt to lay this zombie to eternal rest! 

Photo credit: Alex Morton.