'Namgis First Nation et al v. Canada (Minister of Fisheries, Oceans, and the Canadian Coast Guard) et al, 2019 FC 143

On Feb. 4, 2019, the Federal Court issued its reasons for judgment regarding certain decisions made by the Minister of Fisheries, Oceans and Canadian Coast Guard with respect to the process associated with authorizing the transfer of smolts (juvenile salmon) grown on land-based hatcheries into ocean-based fish farms.

Specifically, the Department of Fisheries and Oceans ("DFO") had an established policy of not testing for the presence of Piscine Orthoreovirus (PRV) or Heart and Skeletal Muscle Inflammation (HSMI) prior to issuing licences authorizing such a transfer (the "Policy"). DFO had reconsidered, but maintained, the Policy on several occasions.

'Namgis First Nation, alongside biologist Alexandra Morton, challenged the latest iteration of the Policy and additionally challenged a decision by DFO to issue a specific license pursuant to the Policy, authorizing a transfer of smolts to restock a particular fish farm situated in its territorial waters.

In the result, the Federal Court found the Policy to be unreasonable and that the Minister had breached the duty to consult 'Namgis First Nation regarding the Policy.

Specifically, the Federal Court set aside the Policy because it was inconsistent with s. 56 of the Fishery (General) Regulations and the precautionary principle, failed to account for the health of wild Pacific salmon, and because the Crown failed to consult 'Namgis First Nation regarding the Policy, including before the Minister made his decision to reaffirm it. The Court directed the Minister to reconsider the continuation of the Policy, taking the Court's reasons into consideration.

Gowling WLG represented 'Namgis First Nation in this matter with Paul Seaman as lead litigation counsel, assisted by a team that included Scott Smith, Max Faille and Aaron Christoff.

Read our detailed case commentary.