Judicial Review of Church House Fish Farm Site

January 24, 2005BACKGROUNDER

The Judicial Review of the process that, in the fall of 2002, led to the approval of the Church House fish farm site commences today in B.C. Supreme Court. The site, which is located directly in front of the traditional village and reserve of the Homalco First Nation, known as Church House, is at the mouth of Bute Inlet and on the migration route of wild salmon that spawn in Southgate, Homathco and Orford Rivers in Bute Inlet.

The provincial conduct with regard to consultation and accommodation that is being challenged in the Judicial Review is regarding a license amendment to introduce Atlantic salmon into production at the Marine Harvest fish farm at the mouth of Bute Inlet.

On December 24, 2004, B.C. Supreme Court Justice Ian Pitfield ruled that, in light of the Haida decision from the Supreme Court of Canada, the circumstances surrounding the Province’s conduct with respect to consultation to move Atlantic salmon so close to the mouth of Bute Inlet demonstrated that there is a good prima facie case for Homalco to argue that they were not properly consulted. He also found that there could be irreparable harm as a result of moving Atlantic salmon into a watershed such as the Bute Inlet and that this irreparable harm should be avoided until a full hearing on the duty to consult was held.

In addition to the Judicial Review, Justice Pitfield also granted the Homalco an interim injunction, ordering Marine Harvest, the fish-farming arm of the Dutch trans-national Nutreco, to halt Atlantic salmon transfers to the Church House site and remove any fish put there after the Homalco filed its action on December 22.

The ruling of Justice Pitfield was upheld on January 14, 2005, when Justice Braidwood of the BC Court of Appeal denied the application of Marine Harvest Canada, to appeal the interim injunction. The Province supported Marine Harvest in seeking leave to appeal.