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Date: |
20041224 |
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Docket: |
L043154 |
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Registry: Vancouver |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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Oral Reasons for Judgment |
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BETWEEN: |
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DARREN BLANEY, CHIEF
COUNCILLOR, FLORENCE HACKETT, |
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PETITIONERS |
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AND: |
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MINISTER OF AGRICULTURE,
FOOD AND FISHERIES |
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RESPONDENTS |
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Counsel for the Petitioners: |
Peter R.A. Grant
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Counsel for the Crown: |
Lisa J. Mrozinski |
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Counsel for Marine Harvest: |
Jill M. Shore |
[1] THE COURT: This is an application brought by the petitioners for an interim injunction pending the hearing and disposition of their petition filed December 22, 2004.
[2] The petitioners are the Homalco Indian Band, its chief councillor, other councillors and the members of the Band. The respondents are the Minister of Agriculture, Food and Fisheries for the Province of British Columbia and Marine Harvest Canada.
[3] Marine Harvest Canada is licenced to raise Chinook salmon in facilities at Church House located on Bute Inlet in British Columbia. Those facilities are located on lands or adjacent to lands which the Homalco Indian Band claims to be part of its aboriginal territory.
[4] The dispute which prompts the petition is concerned with the licence which has been granted by the Province to Marine Harvest Canada, and amended to permit the introduction of Atlantic salmon to the facility at Church House.
[5] In the course of these reasons which I am providing orally because of the urgency that surrounds this matter and the shortness of time which has been available to all concerned, whether they be petitioners, respondents or the court, I am not to be taken to be making any findings of fact which should in any way reflect upon or be regarded as findings of fact material or relevant to any aboriginal claims which may have been asserted by Homalco Indian Band in relation to its lands or lands over which it claims an interest.
[6] Nor am I to be taken as having made or making any finding of fact in respect of the principal issues which must be decided in the course of hearing the petition. My only concern today is to determine whether or not there should be an interim injunction, and if so, on what terms, with respect to the farming of Atlantic salmon at the facility in Bute Inlet.
[7] The petitioners say that they have a prima facie case that the Crown has not consulted in relation to the amendment to the Marine Harvest licence, as the Crown is obliged to do, particularly having regard for the decision of the Supreme Court of Canada pronounced earlier this year in Haida Nation v. British Columbia, 2004 SCC 73. They say there is a risk of irreparable harm in the event that Atlantic salmon farming is not curtailed at the site, and that the balance of convenience favours the granting of the interim injunction.
[8] The respondent, Marine Harvest Canada, acknowledges for the purposes of this hearing that the petition discloses a prima facie case. They dispute the claim that irreparable harm would result from the introduction of Atlantic salmon fish to the farm at Church House, and they say, for reasons which I will come to, that the balance of convenience does not favour the granting of an injunction.
[9] The provincial Crown takes the position that the material in the petition does not disclose a prima facie case, namely a breach of the Crown's duty to consult with the Band in respect of its aboriginal claims, and say, as does Marine Harvest, that irreparable harm would not result from the introduction of Atlantic salmon to the site in Bute Inlet and the balance of convenience does not favour the granting of an injunction.
[10] The injunction, if it is to be granted, would be granted against Marine Harvest Canada to restrain or restrict its activities at the Church House site. I therefore propose to be governed by its acknowledgment, for the purposes of this hearing, interim as it is, that a prima facie case is disclosed in the petition.
[11] In order that there be no doubt in that regard, I would say absent the admission by Marine Harvest Canada, I would have come to that very same conclusion.
[12] Having said that, I am not to be taken, as I said earlier, in any way, shape or form, and do not want to be taken, as making any judgment or offering any opinion with respect to the substance of the petitioner's claim. I say only that the petition discloses a prima facie case.
[13] Bute Inlet is part of the Mainland Coast of British Columbia, situated, as I recall, somewhat below Knight Inlet, but well up the Coast. It is claimed to be, and has been so claimed for many years, part of or in part the aboriginal territory of the Homalco Indian Band.
[14] The Bute Inlet provides the estuary, I suppose is the best way to describe it, for three rivers: the Southgate, the Homathko and the Orford, each of which, as I appreciate the evidence, is a salmon spawning river.
[15] Church House appears at this point in time to be on the migration route for salmon that return to spawn in any of the three rivers. The approval which was granted to Marine Harvest to create a salmon farming enterprise at Church House was obtained in, I believe it was 2002. It is the only site on Bute Inlet in which salmon of any kind are farmed.
[16] The operation as it was originally put together contemplated and indeed created a farming enterprise for Chinook salmon, one of the species native to the West Coast of British Columbia.
[17] There is a paucity of evidence from which I could conclude that any application was made for approval of an Atlantic salmon fishing enterprise at that site when the original application was made in 2002. There is some evidence to suggest that it may have been in contemplation, but most assuredly, it was not the subject matter of application. I derive that conclusion from the fact that an application to amend the licence that was granted was required.
[18] There is evidence provided by the affidavit of Mr. Graham, Assistant Deputy Minister of Resource Development for the Ministry of Agriculture, Food and Fisheries, that Atlantic salmon farming is widespread throughout British Columbia and that the farming of Atlantic salmon constituted 80 percent of total production.
[19] As I say, that appears to be the case in respect of the Province as a whole. The extent to which Atlantic salmon have been farmed in the Bute Inlet area is not in dispute. There has been no farming of that species at all at that location.
[20] When the application for a licence was originally made, the Homalco Band was consulted and in the course of a Federal government review process, was asked of its views with respect to the installation of the farming centre, if you like, at Church House.
[21] The information and their statement of position was sought in the course of the preparation of what is called a "CEAA Screening Report" which is exactly that, a screening report prepared by Fisheries and Oceans Canada reporting on habitat and enhancement aspects of the proposed development.
[22] The review proceeded in the context of an application for the farming of Chinook salmon only. The Band indicated that it did not oppose the creation of the site.
[23] On April 22, 2004, Marine Harvest applied to the Province for an amendment to its licence to permit the placement of Atlantic salmon in the Church House facility. That application was required because of the fact that the licence they held permitted the farming of Chinook salmon only.
[24] The evidence also suggests, and I say no more than that, that the applicant was aware in April 2004 that it would need additional sites at which to farm Atlantic salmon, which it was producing at either or both of two hatcheries which it owns or operates in the Province of British Columbia. It was aware of the need to find a home at sea for fish that were being produced at the hatchery when application was made in April 2004.
[25] Some three months after the filing of the initial application on July 20, 2004, the Provincial government first wrote to the Homalco Indian Band reporting on the fact of the application and asking for the Band's comments.
[26] Homalco, in another context, had provided the government with a submission, with which I need not be particularly concerned in this application, on July 23, 2004, and responded to the licensing proposal as outlined to them by the Provincial government in early August 2004.
[27] Additional correspondence passed from the Band or its solicitors to the Provincial government, at the least on August 11, October 7 and October 28, 2004.
[28] The evidentiary value of some of that which is expressed in the correspondence may be disputed during the course of the hearing of the petition, but for present purposes I remark only that correspondence passed from the Band or its counsel to the government in relation to this issue on the dates I have specified.
[29] The Band asked for particulars of the Marine Harvest management plan, having stated their concerns with respect to the possible transmission of disease, the possibility of adverse effects from sea lice and also the possibility of the Atlantic salmon's capacity to colonize in the rivers which flow into Bute Inlet, namely the Orford, the Homathko and the Southgate.
[30] No substantive response to the submissions or correspondence was made by the government until November 22, 2004. Either in that letter or earlier correspondence, the government advised the Band that it was not entitled to have access to the Marine Harvest management report or management plan, as that was a plan in respect of which proprietary ownership was claimed.
[31] Further correspondence ensued from November 22, 2004, whether by e‑mail or otherwise, between the Homalco Band and the government, with the Band requesting an opportunity to meet, additional time to consult, and expressing its concerns regarding the farming of Atlantic salmon in the lands to which it claimed aboriginal title.
[32] The Ministry of Agriculture, Food and Fisheries advised the Homalco Indian Band in early December that a decision would be made in relation to the application to amend the licence by December 9, 2004.
[33] The Homalco Indian Band expressed concerns that its interests had not been considered. It continued to express a desire to meet and to be consulted with respect to the granting of the licence.
[34] The Provincial government took the view that it had done what was necessary insofar as the Band's interests were concerned, and concluded it was open to the government to approve the amendment to the licence, which, in fact, it did.
[35] While the Band was advised that the licence would be granted December 9, 2004, it appears in fact to have been actually amended on December 8, 2004.
[36] The day following the amendment to the licence, on December 9th or 10th, fish in the smolt stage were moved by Marine Harvest to the facility at Church House. The promptness with which those fish were moved should be contrasted with the very helpful, and I mean that sincerely, advice I have received from counsel for Marine Harvest. Counsel has responded to questions that I raised in a most forthright manner saying that it would be difficult for Marine Harvest, if it were ordered to do so, to move fish from the Church House site immediately as transfer boats are not available to it.
[37] That advice, received by counsel I assume from the client, is also to be contrasted with other affidavit evidence to the effect that all of the fish which are at the smolt stage in one or other of two hatcheries, must be moved to the Church House site not later than January 10, 2005.
[38] The reality is that from the date on which the amendment was made to December 22nd, when the petition was filed, approximately one‑half of the licenced quantity of fish was moved from the hatcheries to Church House.
[39] In response to the Homalco Band's complaint that the Ministry has not adequately and fully consulted with it, the government has responded saying that it is aware of the Band's concerns regarding Atlantic salmon, and those will be addressed in the course of considering a renewal application, the current amendment to the licence being effective for a period of one year.
[40] Other affidavit evidence indicates that the fish are to be in place at the site for 15 to 19 months. The indications are that the more the fish mature, the more difficult it is to relocate them to any facility. It is, therefore, difficult to understand how, if consultation has not been adequate to this point in time, corrections of a meaningful nature might be made by reviewing and perhaps curtailing renewal of the licence in the fall of 2005.
[41] The situation then is that approximately half of the licenced number of fish is on location, with Marine Harvest ready to move the remainder to the site without delay.
[42] The petition which has been filed by the Band seeks an order quashing the amendment to the licence on the basis that the Crown did not fulfill its duty to consult in the manner required by the Haida decision to which I earlier referred.
[43] The application falls to be determined by reference to three criteria. The first is whether there is a serious question to be tried. That has been conceded by Marine Harvest for purposes of this application, appropriately without any admission regarding the merits. As I have indicated, the petition lays out a prima facie case in any event.
[44] The second point with which I must be concerned is whether or not irreparable harm will result if interim injunctive relief is not granted. In that regard, the decision of the Supreme Court of Canada in RJR‑MacDonald Inc. v. The Attorney General of Canada, [1994] 1 S.C.R. 311, paras. 58 and 59, as follows is instructive:
At this stage, the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicant's own interests, that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.
"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the Court's decision, where one party will suffer permanent market loss or irrevocable damage to its business reputation or where a permanent loss of nature resources will be the result when a challenged activity is not enjoined.
[45] The point that I wish to make is that the test has sometimes been phrased as whether or not the individual or applicant for the injunction would suffer irreparable harm in the event it is not granted. I am satisfied that the test at this point of the consideration must be whether or not there is a likelihood or probability or reasonable possibility of harm. It need not be an absolute certainty.
[46] The question of the degree to which the harm may appear to be a risk is something which is more properly assessed in the context of balance of convenience.
[47] The risk of irreparable harm or threat of irreparable harm which is raised by the Band is, as I have said, the risk of transfer of disease, the risk of the infection of native fish with sea lice, and the possibility that Atlantic salmon will colonize otherwise Pacific‑salmon‑only rivers.
[48] There is a dispute between the parties as to whether or not the risks exist with the Province and Marine Harvest pointing to the nature and the extent of Atlantic salmon farm fisheries in British Columbia in support of their claim that there is little or no risk at all, and the Band pointing to other material which suggests that the contrary may be true or that the true risk associated with the farming of Atlantic salmon is unknown.
[49] I will quote from a few sources in order to outline the nature of the debate and the concern. I cite first from the CEAA report, the screening report to which I earlier made reference, at the summary in paragraph 6, in the course of which the Canadian government was concerned with the effect of fish farming in Bute Inlet, particularly in relation to the Church House agriculture project.
[50] That report stated at section 6 as follows:
Further research is needed with respect to the finfish aquaculture industry as a whole, to answer many outstanding questions that extend beyond the scope of this project review. More information the needed with regard to transfer of diseases and parasites between wild and farm fish, adaptability of escapees to the wild, genetic impacts of escaped farmed Pacific salmon interbreeding with wild Pacific salmon stocks, among other subjects.
As such, it is difficult to ascertain the severity of some potential impacts of the project and the effectiveness of proposed mitigation measures. It is therefore also difficult to concretely determine the level of overall risk to the environment that will result from the proposed project and the degree to which cumulative impacts from the proposed finfish farm and other developments in the area will occur. As such, an adaptive management approach will be implemented in accordance with DFO's aquaculture site referral process interim operational policy guidelines.
The proponent will be required to monitor some environmental and operational parameters to enable implementation of adaptive management approaches as necessary to that. So that developing environmental impacts can be prevented. Marine Harvest Canada must operate the new site in accordance with the Federal Fisheries Act, provincial performance‑based standards presently being developed under the Waste Management Act and joint agency monitoring protocols, including the federal "HADD Avoidance Mitigation and Monitoring Agreement."
It is therefore considered that given our level of knowledge of the industry at this time, the direct effects of the project on valued ecosystem components and valued social components are not likely to lead to significant environmental effects or significant cumulative effects.
[51] I refer specifically to the fact that the report and conclusions which were provided in September 2002 were based upon then present states of knowledge as stated by the screening agency.
[52] The Provincial government points to material which is appended to the affidavit of Mr. Graham, the Assistant Deputy Minister, in which reference is made to a technical memorandum prepared in September 2001 on the net‑pen salmon farming industry in the Pacific Northwest of the United States.
[53] In that report, observations are made or opinions are expressed to the effect that the farming of Atlantic salmon carries little or no risk as a result of escape, whether in the form of the potential for hybridization or colonization, competition with other species, or predation on indigenous species.
[54] I am advised that the State of Alaska may have taken a contrary view and may have proceeded to prohibit the farming of Atlantic salmon within waters of interest to that State.
[55] The Auditor General for Canada and the Province of British Columbia have been involved with the issue of fish farming and appear to have reported in 2004, whether at the federal or provincial level, as follows:
Overall, we are not satisfied with the progress made by Fisheries and Oceans Canada in responding to the recommendations made in the three previous audits. While many stocks are abundant, some Atlantic and Pacific salmon stocks are in trouble. We continue to identify significant gaps in managing risks.
[56] Both the Commissioner, which is the Federal Commissioner of the Environment and Sustainable Development, and the provincial Auditor General said of the prior audits:
The three audits also found significant gaps in the scientific knowledge about the potential effects of salmon aquaculture.
[57] The Commissioner stated:
Our current audit found that while some research has been undertaken or is ongoing, significant gaps still exist with respect to the needed research on the potential effects of salmon aquaculture in aquatic ecosystems and on wild salmon stocks.
[58] The Auditor General concluded in the 2004 report as follows:
We found that there are gaps and uncertainty in knowledge about the interactions between salmon aquaculture and wild salmon, particularly around topics such as disease transfer, the ability of farm Pacific salmon to interbreed with wild Pacific salmon, the colonization capabilities of farmed Atlantic salmon and the cumulative impacts of salmon aquaculture.
[59] I refer to these texts, and extracts from them, for the purpose of saying that this is not an issue without its difficulties, and it is also an issue in respect of which knowledge and science continue to evolve. At the same time, some of those who are in positions of responsibility are concerned about the extent to which that which is being done in relation to the farming of Atlantic salmon poses a risk to the environment generally and to wild Pacific salmon stocks in particular.
[60] I am satisfied that there is sufficient concern regarding escapement and the possible deleterious effects of escapement on the West Coast salmon fishery, that the creation of risk and the realization of risk could well result in irreparable harm to the fish stocks of Bute Inlet, and particularly the rivers in which fish spawn at its head; namely the Southgate, the Homathko, and the Orford.
[61] I am satisfied, for the purposes of this interim injunction application only, that the test that there be a risk of irreparable harm has been satisfied. The third question with which I need to be concerned is whether the balance of convenience favours the granting of an injunction.
[62] The starting point must be, I would suggest, the requirement that the government, be they the Federal government or the Provincial government, has a duty to consult with aboriginals in respect of matters affecting aboriginal lands. The right to be consulted, described and formulated most recently by the Supreme Court of Canada in Haida, does not give any native group a right of veto over any government's management of resources under its jurisdiction.
[63] That said, however, a meaningful opportunity for consultation must be afforded. If in retrospect, one finds that a meaningful opportunity has not been afforded, then failing to provide immediate corrective remedies or to prevent further action under the impugned process or licensing rights, tends to sound a death knell to the consultation process because the harm which could result from it might never be rectified.
[64] The consultation process, if it is to have the meaning which the Supreme Court of Canada says it should have, requires that there be substantive consultation. In the event that the consultation process is challenged, then obviously as the law evolves, means are going to have to be found to determine on a timely basis whether the obligation to consult has been satisfied.
[65] In this case, the result of the grant of the amendment and the supply of fish within a very short space of time, by which I mean a matter of hours, at the most days, to the location, suggests that the Homalco Indian Band at the least has a basis upon which to claim that an injunction should be granted on an interim basis, pending disposition of its substantive claim.
[66] The balance of convenience from the Band's point of view, as I have said, is that the risk of harm to the native fish stocks would be diminished by grant of an injunction, and the consultative rights that it enjoys by virtue of rulings of the Supreme Court of Canada would be respected.
[67] From the company's point of view, the claim is that in respect of the fish that are now there, cost would be incurred in relocating them to another site. The availability of another site does not appear to be an issue. That follows from the fact that there are other sites to which Marine Harvest has said the fish could be moved. There appear to be a number of other sites available, none of them in the Bute Inlet area.
[68] The company is concerned that in the event it is obliged to move the fish at a cost, it would be unable to recoup damages that it might sustain as a result of complying with that order unless an undertaking to pay damages were given and secured by the Band.
[69] The Band has said that it does not wish to provide, and does not feel under the circumstances that it is appropriate that it should provide, an undertaking in that regard.
[70] Another factor in the assessment of balance of convenience is that if the fish that are presently on site must be moved, the likelihood is that they would have to be moved to a site which would have to be made ready for their acceptance. The move might not take place within a short time frame. There is a risk that a significant loss or escapement of fish might occur in the course of transfer particularly in the event adverse weather conditions are encountered. That risk of loss may be greater than the risk of escapement from the present site.
[71] The conclusion that I have reached in this matter is that an injunction should be granted that is not as extensive, perhaps, as the Band would like, but more extensive than that which Marine Harvest would obviously like.
[72] I am going to enjoin Marine Harvest from placing any Atlantic salmon in the Church House site in any number beyond the number that were on site at December 22, 2004, the date the petition was filed.
[73] In the event any fish have been introduced to the Church House site from December 21, 2004 to today's date, they shall forthwith be removed and transported to another location in a number that is exactly equal to the number of fish placed on site from December 22nd to December 24th inclusive.
[74] The injunction prohibiting the introduction of any new salmon to the Church House site will remain in force until January 31, 2005, unless continued, varied or set aside by order of the Court in advance of the close of registry business on January 31, 2005.
[75] I am not prepared to order that the customary practice of requiring the Band to provide an undertaking with respect to the payment of damages as contemplated by Rule 45(6) of the Rules of Court. I consider that the circumstances are such that I should exercise my discretion to obviate the need to provide that undertaking. Those circumstances include the fact that the fish that are there are permitted to remain in place during the currency of the injunction and, on the evidence, there appear to be places to which Marine Harvest may relocate the fish which it had intended for delivery to the Church House site.
[76] Another factor making the undertaking inappropriate is the fact that Marine Harvest appears to have made a business decision, as it was perfectly entitled to do, to proceed with the production of smolts for which it did not have homes or for which it would not have had a home in the absence of the licence amendment. It was fully aware of the circumstances under which it was able to operate its business. In those circumstances, it is not appropriate, in my judgment, for the Band to be required to post a bond.
[77] The matter of costs will be in the cause. With respect to the cause, I propose to now discuss with counsel the fixing of a date for the hearing of the substantive petition, and the scheduling of the exchange of materials.
[78] I will say before closing these reasons that I am going to order that the matter will proceed, subject only to one possible limitation, and that is the inability of the registry to make a trial judge available. It will proceed and be heard over a period of five days commencing January [24], 2005, at the Law Courts in Vancouver.
(DISCUSSION)
[79] THE COURT: If that was not clear, I certainly meant it that way. No more Atlantic salmon may be introduced by Marine Harvest to that site during the currency of the injunction. That number of fish, since it obviously will not be the same fish as were placed there, that number of fish that were placed from December 22nd to December 24th, inclusive, will be removed from the site forthwith. The other fish will remain in place and may remain in place during the course of the injunction.
[80] That concludes then my reasons with respect to the interim injunction.
(DISCUSSION)
[81] THE COURT: I think that that is probably a reasonable request. I will ask Marine Harvest to verify by affidavit to be filed in the court and to be served upon counsel for the petitioners, the numbers and dates and times of delivery of Atlantic salmon to the Church House site. That affidavit should be provided within two weeks of today's date.
(DISCUSSION)
[82] THE COURT: I want Marine Harvest to verify by affidavit whether or not any fish were delivered from December 22nd to December 24th inclusive, and if so, in what quantities. That affidavit is to be provided by counsel for the company to counsel for the Band not later than the close of business on January 7, 2005.
“I.H.
Pitfield, J.”
The Honourable Mr. Justice I.H. Pitfield