Precaution, delegation and aquaculture regulation – Morton v DFO Part 1

If you have ever spent any significant amount of time on the west coast, you know how important and contentious of an issue salmon fishery is. Salmon fishery is part of the culture of many First Nations and coastal communities. It is a considerable industry, both in terms of commercial fisheries and aquaculture. Its future is uncertain as stocks seem to fluctuate beyond the comprehension of the Department of Fisheries and Oceans (DFO). There is no shortage of causes (diseases, pollution, poor management, climate change, etc), but as the Cohen Commission of Inquiry (Cohen) concluded, none is dominant.[1] Among them is the risk caused by diseases brought in the salmons’ ecosystem through aquaculture. This particular risk is plague by a familiar environmental policy issue: scientific uncertainty. However, as Cohen found, this uncertainty does not in fact diminishes the risks.[2] Last week, the Federal Court rendered a decision specifically on this issue in Morton v Canada (Fisheries and Oceans),[3] a decision that provide some much needed follow up on Cohen’s aquaculture conclusions. In part one of this two parts post I’ll look at the question of judicial review of a strongly circumscribed ministerial discretion, and the use of the precautionary principle in reasonableness review. In the second part I’ll look at the question of sub-delegation of regulatory requirements to industries.

Background

The applicant, Alexandra Morton, a well-known biologist, gathered information about the transfers of salmon smolts (smolting is the process that allows a salmon to live in salt water) from a Marine Harvest Hatchery to a fish farm in Shelter Bay. Some of the smolts were tested positive for piscine reovirus (PRV), a disease that some believe is the cause of the infectious and deadly heart and skeletal muscle inflammation (HSMI) disease. Dubious about the legality of such transfers by Marine Harvest, the applicant initiated an application for judicial review. The initial application claimed that the Pacific Aquaculture Regulations did not allow for fish transfers and that the part of the Marine Harvest licence allowing such transfers was invalid.[4] DFO abandoned its argument that the Pacific Aquaculture Regulations permitted fish transfers,[5] and the case instead turned on whether or not the Fishery (General) Regulations (the Regulations) allowed for fish transfers as set out in the licence conditions.[6]

Of great importance was section 56 of the Regulations setting conditions for the issuance of transfer licences:

56. The Minister may issue a licence if

(a) the release or transfer of the fish would be in keeping with the proper management and control of fisheries;

(b) the fish do not have any disease or disease agent that may be harmful to the protection and conservation of fish; and

(c) the release or transfer of the fish will not have an adverse effect on the stock size of fish or the genetic characteristics of fish or fish stocks.

[my emphasis]

The licence itself contained the following conditions on fish transfers:

3.1 The licence holder may transfer to this facility live Atlantic or Pacific salmonids from a facility possessing a valid aquaculture licence issued pursuant to section 3 of the Pacific Aquaculture Regulations between the Fish Health zones described in Appendix VI, provided transfers occur within the same salmonid transfer zone as outlined in Appendix II and provided:

(a) the species of live salmonid fish are the same as those listed on the face of this licence;

(b) the licence holder has obtained written and signed confirmation, executed by the source facility’s veterinarian or fish health staff, that, in their professional judgment:

(i) mortalities, excluding eggs, in any stock reared at the source facility have not exceeded 1% per day due to any infectious diseases, for any four consecutive day period during the rearing period;

(ii) the stock to be moved from the source facility shows no signs of clinical disease requiring treatment; and

(iii) no stock at the source facility is known to have had any diseases listed in Appendix IV; or

(iv) where conditions 3.1(b)(i) and/or 3.1(b)(iii) cannot be met transfer may still occur if the facility veterinarian has conducted a risk assessment of facility fish health records, review of diagnostic reports, evaluation of stock compartmentalization, and related biosecurity measures and deemed the transfer to be low risk.[7]

What’s Reasonableness? Standard of Review and Post Decision Evidence

Reasonableness and Circumscribed Discretion

The first hurdle the case had to get through was establishing the proper standard of review (always a fun time for administrative law enthusiasts like myself). For the non-initiate, standard of review is the standard used by courts to scrutinize administrative decisions. There are two: correctness (where courts substitute the decision-maker’s judgement for their own) and reasonableness (where courts show deference to the decision-maker’s judgement).[8] Here, both were argued. The applicant claimed the case was about the Minister’s jurisdiction to issue the licence and should thus be reviewed on correctness. On the other hand, DFO claimed the Minister’s decision was entitled to considerable deference due to the discretionary nature of the issuance of licences.

While it is true that section 7 of the Fisheries Act give considerable discretion to the Minister,[9] such discretion was circumscribed by section 22 of the Regulations which prohibits licence conditions that are inconsistent with the Regulations. Justice Rennie found that the presumption on applicability of the reasonableness standard was not rebutted.[10] However, acknowledging the circumstances of this case, he formulated the standard as “whether the licence conditions are a reasonable articulation, or expression, of the mandatory requirements of section 56 [of the Regulations]”.[11]

I agree with Justice Rennie on this point. This was not one of the rare question of “true” jurisdiction alluded in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association,[12] nor was it a case where the Minister possesses near absolute discretion. While the standard articulated by Rennie J. might not be the clearest at first view, it is obvious from his reasons that he simply followed the dicta that “reasonableness must be assessed in the context of the particular type of decision making involved and all relevant factors.”[13] Here reasonableness was coloured by the mandatory language of sections 22 and 56 of the Regulations, the broader legislative context (using the familiar rules of statutory interpretation), the precautionary principle, and the scientific data, and lack thereof, surrounding PRV and HSMI. These factors created a very limited realm of possible outcomes, or to use Justice Rennie’s language, the licence conditions had to be within the limited range of reasonable articulations of the Regulations’ requirements.[14]

Decision-making Record and Reasonableness

Finally the judge makes an interesting point pertaining to the evidence. Usually in a judicial review application the evidence is limited to record before the decision-maker, unless the evidence is there to provide background to the case. In this case, the record was only the one page and a half decision to issue the licence. DFO instead relied on the presumption of reasonableness and the evidence tendered by Marine Harvest contesting the link between PRV and HSMI. This lead to a useful reminder by Rennie J.:

“… it is important to note that the Minister has said nothing about the science which might inform the reasonableness of the conditions. […] What the Minister cannot do is make unsupported statements of science. Nor can the Minister point to expert affidavits, drafted many months after the decision and infer that those considerations must necessarily have been taken into account by the Minister in the exercise of his discretion.”[15]

In other words, the Minister’s decision cannot rely on presumption alone if there is no evidence in the record to support its reasonableness. By including nothing except the decision itself in the record, DFO cornered itself as it could obviously not rely on after the fact evidence nor on general statement that the Minister was “guided by expert advisers” while including nothing in the record on what those advisers said. While Newfoundland and Labrador Nurses’ Union allows reviewing courts to look at the record to supplement an administrative decision,[16] that option is simply not available in my view, and as one can infer from Justice Rennie’s reasons, when there is no record or a very limited one.

Reasonably Precautionary – Regulating Fish Health

Using the Precautionary Principle in Judicial Review

So what does happen in a case where the record is limited (or inexistent) and there’s no scientific consensus on a crucial issue before the court? One might say we have to approach this situation with caution … or more specifically with the precautionary principle. And that’s exactly what the Federal Court did in the first substantive application of the principle in a Canadian court decision. The precautionary principle (also known as the precautionary approach) is a well-known and widely used environmental law principle.[17] In his reasons, Justice Rennie justifies the use of the principle on the fact that the Supreme Court used it as an interpretive principle in the past,[18] and on the statement by DFO that the licence conditions reflected the precautionary approach. He articulated the principle with clarity as follow:

“The precautionary principal recognizes, that as a matter of sound public policy the lack of complete scientific certainty should not be used as a basis for avoiding or postponing measures to protect the environment, as there are inherent limits in being able to predict environmental harm. Moving from the realm public policy to the law, the precautionary principle is at a minimum, an established aspect of statutory interpretation, and arguably, has crystallized into a norm of customary international law and substantive domestic law.”[19]

Justice Rennie’s conclusion on the usefulness and applicability of the precautionary principle is also supported by Canada’s international obligations and its use in many Canadian environmental legislation and policies.[20] This case also represented the perfect scenario for its use as one of the contentious issues was the fact that a great deal of scientific research seems to point toward a causal link between PRV and HSMI, but that link has yet to be fully proven. Part of the question was thus whether or not the lack of scientific certainty permitted the transfer of smolts with PRV.

DFO claimed that since there was no evidence of a clear link between the two diseases, aquaculture licences could permit, subject to their conditions, the transfer of fish with PRV. The Court rightfully rejected this argument as it runs contrary to the precautionary principle. The evidence showed that there was at least a risk that PRV and HSMI were linked, and that PRV thus may be harmful to fish. Therefore, in the absence of scientific certainty, caution was the way to go.

Justice Rennie also used the precautionary principle to interpret the Regulations (together with the well-known “golden” rule of statutory interpretation)[21] and considered it as one of the factors that informed his reasonableness analysis. The strong language of section 56(b) of the Regulations, the precautionary principle, and the resource conservation purpose of the Fisheries Act all pointed toward a strong prohibition of transfer of fish with a disease that may be harmful. Furthermore, Rennie J. found that “subsection 56(b) of the FGRs, properly construed, embodies the precautionary principle”.[22] Only licence conditions that would reflect the strong regulatory obligations against potentially harmful fish transfer could be reasonable.

The Conditions’ Reasonableness

The Court found that conditions 3.1(b)(i) and (iii) were reasonable. Without saying much, Rennie J. simply held that these two conditions reflected objective standards aimed at only allowing fish transfer that represented no to very low risk to fish health. In a way, these conditions represent the leeway offered by reasonableness to decision-makers. They represented a “reasonable articulation” of the limits imposed by section 56.

However, conditions 3.1(b)(ii) and (iv) were found to be unreasonable. In addition to the reasons summarized below, Justice Rennie determined that those two conditions were unreasonable because they were inconsistent with the precautionary principle. Since section 56(b) reflected the principle, the licence conditions also needed to reflect it. While the judge did not state in detail why these two conditions ran afoul of the principle, we can deduce from his reasons that precaution demanded that the licence conditions be restrictive and ensured that no transfer would create a risk to fish health. The two unreasonable conditions clearly did not achieve this as they were instead permissive (allowing low risk transfer) and allowed for a degree of risk (transfer of fish with non-clinically visible symptoms, and transfer of fish from stocks who are potentially infected). I would add that it appears that the conditions also emphasise, indirectly, on a certain level of scientific certainty and thus could allow transfers with the potential of having negative environmental impacts. They did not allow, in other words, for caution in the presence of some evidence pointing towards harmful diseases.

The judge determined that 3.1(b)(ii) created a lower standard than section 56 since it allowed transfers of infected fish as long as such fish (or stock to use the language of the licence) “shows no signs of clinical disease requiring treatment”. In addition, the condition speaks of stock which is a broader concept than the word fish used in the Regulations. The condition clearly allows transfers of fish that have a disease that may be harmful to fish since showing signs of a disease and having a disease are not the same thing. In this specific case, clinical signs of HSMI don’t manifest themselves until 5 to 9 months after a transfer. Furthermore, the condition allowed the transfer of diseased fish since a stock could show no sign of disease but contain one or more infected fish. Rennie J. concluded that there was “no nexus or scientific linkage between the regulatory requirement (directed to the protection of the resource) and the licence condition (directed to the stock).”[23]

Finally, condition 3.1(b)(iv) was determined to be unreasonable because it allowed Marine Harvest to override conditions 3.1(b)(i) and (iii) and thus section 56 of the Regulations. A condition 3.1(b)(iv) low risk transfer could allow for the transfer of a fish with a disease that may harm fish conservation if a Marine Harvest veterinarian found the transfer to be low risk.  The condition would also allow a transfer of a fish from a stock known to have a disease that can seriously impact fisheries (condition 3.1(b)(iii)) or from a stock with a mortality rate exceeding 1% per day due to any infectious diseases, for any four consecutive days (condition 3.1(b)(i)). The condition, Justice Rennie stated, was clearly inconsistent with section 56(b) and also unreasonable due to its internal inconsistency (“A transfer cannot be of low risk when it allows the transfer of fish with diseases which have the potential to “severely impact” the fishery at an international level”).[24]

Concluding Thoughts of Part 1

Firstly, this decision brings to a certain extent some understanding on the operationalisation of reasonableness in cases involving circumscribed discretionary decision-making. Particularly important is the need to understand the purpose of the regime and its application. While DFO may need to be able to articulate in a practical way the broad requirements of the Regulations, it is still, rightfully, severely limited in its options. Since the Minister could not prove that the conditions respected the Regulations in practice, what was left was the text of the licence, which on its face created unreasonable applications of the strict standards of section 56. Still, the short part of the judgement on standard of review seems like a missed opportunity to further explore the meaning reasonableness in the operationalisation of regulatory requirements.

Secondly, the decision is of great important because it demonstrates how the precautionary principle can be used substantively in administrative law. In a context where the precautionary principle is applicable – when a provision embodies the principle, is an application of the principle, or implements directly or indirectly those provisions – not only can it serve as an interpretation tool but also act as a factor limiting or informing the reasonableness of a decision. While I agree that the outcome of the case (in the application of reasonableness) and believe it was a victory for those concerned with the harmful effects of aquaculture, I think that the true long-term potential of this decision resides in it application of the precautionary principle.

Lastly, I am happy to see the Cohen report used outside of an academic/activist setting. The commission of inquiry went through tremendous work to produce a detailed, thorough, and useful report. The report had specific recommendations, partially based on the precautionary principle, on aquaculture licences and regulations. While some recommendations were followed,[25] Morton v Canada is a good reminder that the spirit of the report in terms of the aquaculture industry remains unimplemented. The risk associated with aquaculture, as shown by this case and Cohen, is still present and ill-defined. This decision by the Federal Court should serve as a wake-up call to DFO that much still need to be done to ensure the preservation of pacific fisheries.

[1] Cohen Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, The uncertain future of Fraser River sockeye, Vol 2: Causes of the decline, October 2012.

[2] Ibid, at pp 113-114 and Cohen Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, The uncertain future of Fraser River sockeye, Vol 3: Recommendations, summary, process, October 2012, at p 25.

[3] Morton v Canada (Fisheries and Oceans), 2015 FC 575.

[4] Pacific Aquaculture Regulations, SOR/2010-270.

[5] The behaviour of DFO surrounding arguments seems to not have impressed Rennie J.: see Morton v Canada, at para 106.

[6] Fishery (General) Regulations, SOR/93-53. DFO argument was quite untenable since nothing in the Pacific Aquaculture Regulations allows or refers to fish transfers.

[7] Morton v Canada, at para 23.

[8] Dunsmuir v New Brunswick, 2008 SCC 9.

[9] Fisheries Act, RSC 1985, c F-14.

[10] See Tervita Corp v Canada (Commissioner of Competition), 2015 SCC 3 at paras 34-40; and Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40 at paras 55-62.

[11] Morton v Canada, at para 32.

[12] Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61.

[13] Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 at para 18.

[14] See Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53.

[15] Morton v Canada, at para 39.

[16] Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62.

[17] Rio Declaration on Environment and Development, annex of the Report of the United Nations Conference on Environment and Development, 3 June 1992, UN Doc A/CONF. 151/26/Rev. I (Vol. I), Annex I, at Principle 15. See Cohen Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, The uncertain future of Fraser River sockeye, Vol 1: The sockeye fishery, October 2012, at pp 36-37 for a discussion of its uses in fisheries.

[18] Castonguay Blasting Ltd v Ontario (Environment), 2013 SCC 52 at para 20; and 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40 at paras 30-32.

[19] Morton v Canada, at para 43.

[20] Cohen Commission Report Vol 1, at pp 36-37; and Morton v Canada, at pare 58.

[21] Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 27.

[22] Morton v Canada, at para 97.

[23] Morton v Canada, at para 66.

[24] Morton v Canada, at para 72.

[25] Office of the Auditor General of Canada, Federal government response to the 2012 Cohen Commission report into the decline of Fraser River salmon and concerns about the potential impact to fish habitat protection under the amended Fisheries Act, Environmental Petition 357, 21 February 2014.

One thought on “Precaution, delegation and aquaculture regulation – Morton v DFO Part 1

  1. Pingback: Precaution, delegation and aquaculture regulation – Morton v DFO Part 2 | jurisblogger

Leave a Reply