March 3, 2005 – MEDIA RELEASE
VANCOUVER, B.C. – Justice Powers, a BC Supreme Court Judge, has ruled that the provincial Ministry of Agriculture, Food and Fisheries (MAFF) erred in failing to properly consult with the Xwemalhkwu (Homalco) First Nation regarding the approval of a species amendment to allow Marine Harvest, the fish-farming arm of Dutch trans-national Nutreco, to introduce Atlantic salmon smolts into its pens at the mouth of Bute Inlet. The Xwemalhkwu launched the action on December 22, 2004 (see backgrounder).
Chief Darren Blaney exclaimed, “We’re very pleased with this victory! Although Marine Harvest applied in the courtroom, as well as in a separate action, to have the injunction lifted, this injunction remains in place until proper consultation is completed. Justice Power’s wrote, “Marine Harvest will not add any more Atlantic salmon to the Church House site until the process of consultation and potential accommodation has been completed, and the Ministry confirms the amendment of the licence, if it does so;” In other words, the Church House operation is frozen. This is yet another example of the `Impoverished vision of the Honour of the Crown’. Because the province has such shoddy consultation practices, the courts are now becoming the arena where consultations with First Nations are being managed,” continued Chief Blaney.
“During the court proceedings Marine Harvest maintained that they did not have a legal duty to consult, however in his ruling, Justice Powers ordered the company to consult with the Xwemalhkwu (Homalco) First Nation not only about the farming of Atlantic salmon but also about the locating of their fish farm (paragraph 127, #2),” stated Peter Grant, legal council for the Xwemalhkwu (Homalco) First Nation. “The court also used very strong language to describe the obligation of the provincial minister of Agriculture, Food and Fisheries, explaining that ‘ if, after consultation, reasonable accommodation of the concerns raised by the Homalco required a refusal to allow the amendment, then that would be the decision that the Minister must make’ (paragraph 135) continued Grant.
“Justice Powers has confirmed what the Georgia Strait Alliance has been saying for over a decade – the salmon farm industry in this province is operating in the face of significant scientific knowledge gaps and inadequate regulation,” said Eric Blueschke of the Georgia Strait Alliance, “Despite this known reality, the provincial government continues to increase the cumulative risk and impact on our coastal marine environments by facilitating the expansion of this industry.”
Some Reasons for Judgement taken for Justice Power’s decision:
- “…the Minister had, and continues to have, a legally enforceable duty to the Homalco to consult with them in good faith, and to endeavour to seek workable accommodation between their interests and the long-term objectives of the Crown and Marine Harvest, and the public interest, both Aboriginal and non-Aboriginal. This includes issues surrounding the location and management of the Church House fish farm and the amendment to the existing licence to allow the introduction of Atlantic salmon;”
- “I would point out, however, that it is not simply direct or immediate interference which is a concern. It is also indirect and potential future interference…. The concerns raised by Homalco were not frivolous or vexatious.”
- “Marine Harvest is to participate in an appropriate way in the consultation.”
- “The Ministry is to approach this consultation with an open mind and be prepared to withdraw its approval of the amendment if, after reasonable compensation [sic], it determines that it is necessary to do so, or add whatever conditions appear to be necessary for reasonable accommodation of the concerns of Homalco;”
- “The Homalco have leave to bring the matter back before the court in the event that they are of the view that further consultation and accommodation are inadequate.”
- For a more complete explanation see Reasons for Judgment
The provincial government and Marine Harvest relied heavily on the 1997 Salmon Aquaculture Review (SAR) in their arguments, saying that it addressed the concerns of Xwémalhkwu. The Justice found that, “The thrust of the Salmon Agriculture [sic] Review is not that its recommendations will address all of the concerns. The thrust of the review is that its recommendations are important in reducing potential risks, but that further research and ongoing preventative management and review are required.” In addition, Justice Powers noted that the SAR does not address the issue of sea-lice, as the problem was not identified in 1997.
Although all the parties agreed that the court should not become the arbitrator of scientific theories Justice Powers found that, “All of the scientists and panels involved in studying the issues confirm that there are serious gaps in knowledge and that research is needed to fill those gaps.”
The Xwemalhkwu First Nation and the Georgia Strait Alliance signed a protocol agreement in 2004 outlining how the two groups will work together on marine restoration and protection initiatives in Bute Inlet and its surrounding waters. The Georgia Strait Alliance is a marine conservation organization dedicated to protecting and restoring the Georgia Strait, its adjoining waters and communities.