Group challenges BC Government's right to regulate fish farms

Alexandra Morton, tourism operators and commercial fishers file constitutional challenge in effort to stop salmon farm lease renewals
May 8, 2008

Group challenges BC Government's right to regulate fish farms

Biologist Alexandra Morton, the Area E Gill-netters Association, the Vessels Owners Association and the Wilderness Tourism Association have filed a petition in the BC Supreme Court challenging the constitutional right of the BC Government to regulate fish farms and issue licenses. The Petition is for judicial review preventing the government from renewing leases on existing fish farms and names the Minister of Agriculture and Lands, BC Attorney General and Marine Harvest Canada.

The legal challenge is in response to 22 fish farms operating with expired leases in the Broughton Archipelago (near the northern tip of Vancouver Island) and which have applied to increase their size and extend their production tenures to 20 years.

In a press release, the group claims fish farms encourage artificially high populations of sea lice which feed on young wild salmon as they migrate to the oceans from their nursery streams. Young salmon at this growth stage, lack scales and are vulnerable to sea lice originating from the fish farms.

Under s. 91 of the Constitution Act, the powers to regulate "Seacoast and Inland Fisheries" are exclusively granted to the federal government. Lawyers for the Petitioners will argue that protection of Canadian marine waters and Canada's fisheries is the clear responsibility of the federal government. The Constitutional rights of the provincial government in the marine environment are limited to the seabed, and provincial legislation purporting to regulate and issue private fish farm licenses is unconstitutional.

The case will also involve a challenge to a Memorandum of Understanding which they say was "quietly signed" between the federal and provincial governments in 1988. It handed over fish farm regulation to the province.

"The Province is doing a shameful job of protecting wild salmon from sea lice and other fish farm damage," said Alexandra Morton, who has lived in the Broughton Archipelago for 25 years, and has published a series of scientific studies on escaped farm salmon, fish farms displacing killer whales and the impact of farm lice on salmon and herring.

"While the BC Government has no role or responsibility for wild salmon, they collect lease revenue from fish farms and thus have an interest in the expansion of the industry. At the same time, the federal government has withdrawn and abdicated their responsibility to protect our wild fish. This arrangement is fatal to wild salmon from the Fraser River to the Central coast and must change immediately," said Morton.

The litigation team is led by Gregory J. McDade, Q.C., (Ratcliff & Company, North Vancouver). Mr. McDade is the former head of the Sierra Legal Defence Fund (now EcoJustice), and a noted environmental and aboriginal lawyer. Funds for this legal action were supplied by the West Coast Environmental Law Association, central coast fishing lodge owners and from individuals all over the world via

Bob McKamey of the Area E Gillnetters Association representing commercial fisherman operating in the affected region said, "We're concerned about protecting wild salmon because we believe that handing over power to the province will lead to increased privatization of the ocean and an escalation of private fish farming. The public right to the ocean fishery goes back to the Magna Carta, and only the federal government has the right to regulate that."

"The current government farm split jurisdiction management is not working. Open net caged salmon farms not only threaten juvenile wild salmon survival but also endanger bears, eagles, whales, and other wildlife that our nature-based tourism industry depends on for survival," said Brian Gunn President of the Wilderness Tourism Association.

"Two decades ago the federal government said fish farms had no impact on the marine environment and handed the industry over to the province. In that time, the province has not paid attention to how these farms are affecting wild salmon. As a result, wild salmon stocks are in exceptional decline everywhere there are fish farms. Our legal challenge will show that fish farm leases in British Columbia are unlawful, unconstitutional and invalid."