Protecting wild salmon from piscine reovirus

Morton v. Canada (Fisheries and Oceans) 2019 FC 143
Program area – Nature Status: Victory
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The Minister of Fisheries and Oceans has a legal responsibility to protect wild salmon.

Ecojustice, on behalf of independent biologist Alexandra Morton, has scored several court victories in the fight to protect wild salmon from piscine orthoreovirus (PRV) — a virus that is prevalent in farmed Atlantic salmon.

Research shows that PRV is present in up to 80 per cent of farmed salmon. There is also mounting evidence that the highly-contagious virus could harm wild Pacific salmon. A 2018 peer-reviewed study co-authored by Department of Fisheries and Oceans (DFO) scientists found PRV can enter blood cells in Chinook salmon and ultimately cause them to burst, a condition that can result in liver and kidney damage, anemia, and even death.

Furthermore, scientists have identified PRV as the most likely cause of Heart and Skeletal Muscle Inflammation (HSMI), a severe disease that affects the muscle and heart of salmon. The disease HSMI has caused widespread harm in farm fish in Norway and Scotland.

Morton v. Canada (Fisheries and Oceans) 2015 F575
In 2013, biologist Alexandra Morton approached Ecojustice with allegations that aquaculture company Marine Harvest Inc. had transferred Atlantic salmon infected with PRV into net pens located along the Fraser River salmon migration route.

On behalf of our client, we sued DFO and argued that:

the DFO, as a government body with responsibility for ensuring the health of wild fish stocks, must take responsibility for determining when it is safe to transfer fish into net pens in the open ocean rather than off-load that responsibility to fish farm operators; and
the law clearly did not allow anyone to put fish in the ocean carrying diseases or disease agents that could harm the conservation and protection of wild fish.
In May 2015, the Federal Court struck down the aquaculture licence conditions that allowed Marine Harvest to decide whether to transfer fish infected with viruses into open pens in the ocean. The Court rejected DFO’s argument that its licence conditions were based on sound science about HSMI or other fish diseases, finding there was no evidence that DFO relies on science in issuing aquaculture licences.

Instead, after noting that “the weight of the expert evidence before this Court supports the view that PRV is the viral precursor to HSMI,” the Court accepted that transfers of farmed salmon infected with viruses like PRV may be harmful to the protection and conservation of fish – and thus contrary to the law.

DFO and Marine Harvest appealed the 2015 decision, but adjourned the appeal days before the hearing, in May 2016, when a federal scientist announced that HSMI had been detected on a fish farm in B.C. Despite this research, the Minister still refused to enforce testing for farm salmon prior to transfer into sea pens on wild salmon migration routes.

Morton v. Canada (Fisheries and Oceans) 2019 FC 143
In 2018, Ecojustice was back in Federal Court on behalf of Alex. This time, we argued that the Minister of Fisheries and Oceans’ policy and practice of allowing companies to transfer farmed salmon into open net pens in the ocean without first testing them for PRV was illegal.

Specifically, Ecojustice said, the minister’s practice contravened Section 56 of the Fishery (General) Regulations, which states that the minister cannot issue a transfer licence for fish that “have any disease or disease agent that may be harmful to the protection and conservation of fish.”

The Federal Court agreed.

In February 2019, the court ruled that the minister’s PRV policy is illegal for several reasons. Critically, it found that the PRV policy does not comply with the precautionary principle. This important principle says that, whenever possible, harm to human health and nature must be prevented before it happens — particularly in situations in which scientific understanding of potential risks is incomplete.

In its decision, the court gave the minister four months to come up with a new, precautionary, and science-based policy.

Wild are a keystone species. They feed endangered orcas, eagles and bears — and nutrients from salmon have even been detected in the trees surrounding salmon-bearing streams and rivers. Wild salmon are also central to the cultures, diets, and economies of many coastal peoples.

Ecojustice is committed to using the law to protect the marine environment. We believe that the DFO must show leadership and live up to its mandate to protect wild salmon and promote sustainable fisheries practices. Governments have to work in the public interest to balance the needs of industry with ecological considerations and must proceed with caution when making decisions that could have serious environmental impacts, such as the introduction of a new disease into the marine environment.

Key developments

Press release

New PRV policy leaves wild salmon at risk

VANCOUVER – Fisheries and Oceans Canada released a new policy on piscine orthoreovirus (PRV) on Thursday, eight months after an Ecojustice...

October 7, 2019

Press release

DFO introduces interim measures to protect wild salmon from virus, Ecojustice reacts

VANCOUVER – Four months after the Federal Court struck down the Canadian government’s policy on piscine orthoreovirus (PRV), Minister of...

June 4, 2019

Blog

A week of wins for the environment

In the span of a few days, Ecojustice scored three consecutive wins for the environment — including victories for the health of wild salmo...

February 5, 2019

Press release

Federal Court strikes down policy on virus that threatens wild salmon, Ecojustice reacts

VANCOUVER – The Federal Court issued a decision today that strikes down the Minister of Fisheries and Oceans' policy on piscine orthoreovi...

February 4, 2019

Press release

STATEMENT: B.C. announces phase out of Broughton Archipelago fish farms, Ecojustice reacts

VANCOUVER – The British Columbia government announced on Friday that it will phase out 17 open-net fish farms in the province’s Broughto...

December 14, 2018

Press release

STATEMENT: Assessment for PRV “encouraging,” but minister must heed science, Ecojustice lawyer says

VANCOUVER – Ecojustice lawyer Kegan Pepper-Smith released the following statement in response to the launch of a new federal government as...

September 25, 2018

Blog

Wild salmon finally get their day in court

This week, Ecojustice lawyers go to court to protect Pacific wild salmon from a highly contagious virus found in up to 80 per cent of B.C. f...

September 10, 2018

Press release

RELEASE: Independent biologist Alexandra Morton, Ecojustice, in court to protect wild salmon

VANCOUVER – Ecojustice lawyers will be in Federal Court this week on behalf of Alexandra Morton, an independent biologist who is suing the...

September 9, 2018

Blog

Five “wild” facts about Pacific salmon

Wild salmon are an integral part of the Pacific Northwest — so much so that some First Nations peoples on the West Coast call themselves ...

September 6, 2018

Blog

‘Namgis First Nation launches parallel case to protect wild salmon

The ‘Namgis First Nation is headed to court in an effort to stop Marine Harvest from stocking salmon pens on the nation’s territory with...

April 17, 2018

Blog

Breaking news: An early Christmas present for wild salmon

Christmas has come early for B.C.’s wild salmon. The Department of Fisheries and Oceans (DFO) and aquaculture giant Marine Harvest have...

December 23, 2016

Blog

FAQ: Why we’re taking the Minister of Fisheries and Oceans to court. Again!

If you’ve been following our work throughout the past few years, you might have noticed that we take protecting wild salmon very seriously...

October 27, 2016

Press release

Minister of Fisheries and Oceans sued for putting wild salmon at risk

Government failure to test farmed salmon for disease illegal, lawsuit alleges VANCOUVER – The Minister of Fisheries and Oceans is brea...

October 12, 2016

Blog

We’re going to court to protect wild salmon — again.

Taking the Minister of Fisheries and Oceans to court to protect wild salmon is nothing new for us. As you might remember, last year we su...

October 12, 2016

Blog

Save our salmon — get diseased fish out of Pacific Ocean

The government recently made an announcement that could critically impact wild salmon: Atlantic salmon on at least one farm off the B.C. coa...

June 22, 2016

Press release

Morton, Ecojustice respond to DFO, Marine Harvest aquaculture appeal

Appeal raises more questions about disease on B.C. salmon farms VANCOUVER — Biologist Alexandra Morton is vowing to go back to court t...

June 9, 2015

Press release

Victory for wild salmon as Federal Court strikes down aquaculture licence conditions

Department of Fisheries and Oceans needs to err on the side of caution in regulating fish farms, Court rules VANCOUVER — The Federal Co...

May 7, 2015

Press release

Fish farm licences challenged in Federal Court

VANCOUVER — Aquaculture licences issued by the Department of Fisheries and Oceans that allow fish farms to transfer farmed Atlantic salmon...

September 4, 2014

Blog

Viruses on fish farms + wild salmon = bad news

Pacific salmon are an iconic West Coast species that feeds and sustains individuals, communities and culture. But as Justice Bruce Cohen rec...

May 27, 2013

Press release

Morton, Ecojustice launch lawsuit over transfer of diseased salmon

VANCOUVER — The transfer of diseased salmon into an open-pen fish farm operated by Marine Harvest appears to have violated federal law, ...

May 24, 2013

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