IN SEPTEMBER 2018, I was in another courtroom, this time to hear my Ecojustice lawyers, Margot Venton and Kegan Pepper-Smith, argue our second lawsuit against the minister of fisheries for his refusal to screen farm salmon for PRV. Since we had won this case once, I was confused as to why we had to argue it all over again, even though I was the one who filed it. Shouldn’t the court take it from here and force Canada’s government to follow its own laws? Apparently not. And, while Ecojustice was paying the lawyers, I was responsible for the court costs, which were escalating with every motion submitted by Mowi and Cermaq, who once again had inserted themselves into the process. My bill already stood at $22,000. If I won, DFO and the companies would have to pay these costs. If I lost, I would pay the court costs for DFO and the two fish farming companies. The stakes were high for the coast and for me personally.
If this lawsuit had been argued in the 1990s, the Fisherman’s Union, the Steelhead Society and many others, even politicians, would have been in an uproar over the industry farming Atlantic salmon infected with an Atlantic virus here in the Pacific. But now all of them stayed silent. I don’t know why. Fortunately, a lawsuit only requires a lawyer, a judge, a plaintiff and the defendants to proceed, and we were all present. Even better, the ‘Namgis were here to argue their parallel case, with their lawyers, Sean Jones and Paul Seaman, and a knot of chiefs looking on from the gallery. Natural laws and human laws had been broken. Mowi, Cermaq and DFO were there to make sure they remained broken. We were outnumbered, but we were not outgunned.
The hearing, in front of Federal Court Justice Cecily Strickland, was scheduled to last an entire week. She was from Newfoundland and, like most judges, I found her impossible to read. In these circumstances, I always hope for judges who come from families of fishermen. Did she have a memory of what DFO did to the North Atlantic cod stocks and what happened in her community when that fishery collapsed?
Central to the ‘Namgis case were three expert reports stating that PRV in farm salmon poses a risk of “serious and irreparable harm” to wild salmon. There seemed to be an effort to suppress these. First, DFO bureaucrats failed to provide these reports to the federal minister when he was reviewing whether to approve restocking the Swanson Island farm. Because the reports hadn’t actually gone to the minister, the fish farm lawyers argued they couldn’t be part of the case and asked that three expert reports be struck from the record. When the judge ruled in their favour, the DFO lawyers went on to argue the Department had no “duty to consult” with ‘Namgis, because PRV did not cause harm.
We’re fighting with cheaters, I thought, remembering the words of the lobster fisherman in Nova Scotia. If Minister Wilkinson had seen this evidence of harm to wild salmon due to PRV, would he still have issued the permit to restock Swanson?
The lawyers on my side got to work removing the DFO scaffolding that was shoring up the preposterous position that PRV was no risk to wild salmon. Sean Jones walked the court through the sequence of events when Dr. Gary Marty, the BC government fish pathologist, recognized the disease HSMI in BC farm salmon in 2008, but didn’t report it. Then Jones took the court through Dr. Kristi Miller’s contract with Creative Salmon, which had asked her to solve the mystery of why their farmed chinook salmon were turning yellow and dying. And the fact that when Miller discovered the jaundice appeared to be associated with PRV infection, the same Dr. Marty apparently advised Creative Salmon not to allow her to publish her results.
Sitting in that courtroom as lawyers explained the battle between Dr. Marty and Dr. Miller over whether PRV was harming salmon was a long way from the glow of my laptop in the dark house at the water’s edge where I’d first read all this and thought, I need a lawyer. I couldn’t help but wonder what would have happened if Canada’s fisheries laws had not been broken. Would so many salmon be dying on the riverbank, turning yellow from the inside out? Would the southern resident orca still be our healthy and content neighbours in the Salish Sea? Would the bears be starving? Would once-thriving coastal communities be struggling with catastrophic loss of fishing industry jobs?
The DFO lawyers argued that the Department was using the precautionary principle—taking a better-safe-than-sorry approach until the harms from PRV were proven. I was dumbstruck that they could actually stand up and argue this: DFO has never taken sufficient precautions to protect wild salmon from salmon farms.
Then the company lawyers really went off the rails. One of them theorized to the judge that to be able to do what I was doing I must be wealthy; another told the judge that I was not a judge, which I am pretty sure the judge already knew. Did I make them so angry that they became more aggressive than smart? How was any of this even relevant?
In January 2019, the Dzawada’enuxw of Kingcome Inlet filed their claim in Federal Court in Vancouver alleging that the ten salmon farms in their territory were infringing their Aboriginal Rights. The federal government was on record as recognizing these rights, and this nation was determined to see them honoured.
Their filing claimed that the farms were exposing important wild fish stocks to harmful viruses and parasites and polluting the waters of their territory. The nation was seeking an order from the court to quash the federal licences of these farms, which were owned by Cermaq and Mowi. These two companies were now facing challenges to their provincial tenures, suits over their habit of transferring PRV-infected fish into the Broughton and a challenge of their federal licences as well, confronted by a total of four First Nations in three lawsuits and a groundbreaking government-to-government process. Then there was me. Why couldn’t they see that it was time to bow out gracefully from the archipelago before things got even worse for them?
A month later, on February 4, the ‘Namgis and I won our lawsuits to make the government reassess its policy of transferring PRV-infected farm salmon into the Broughton and all of British Columbia. By now, I had been to court five times to bring the salmon farming industry into compliance with our laws and have never lost; as my winning record reinforces, many aspects of farming salmon in marine net pens are simply not legal in Canada. In a 201-page decision, Justice Strickland ruled to quash DFO’s policy not to screen farm salmon for PRV because, among other reasons, it failed to protect wild salmon health. This meant DFO had to draw a new policy. She reaffirmed the 2015 decision on the same matter—the one four fisheries ministers had ignored.
Strickland admonished the sitting minister, Jonathan Wilkinson, directly. She said there was a burden on him to explain why he had appealed the 2015 decision, then withdrawn that appeal and simply refused to screen for PRV. She drew attention to the ‘Namgis concern that DFO would continue to allow the transfer of infected fish unless someone could prove that the virus threatened an entire conservation unit with extinction. (A “conservation unit” is defined as a group of wild salmon runs that exists sufficiently isolated that, if extirpated, the fish are very unlikely to come back; the salmon of the Broughton are one such unit.) Waiting to act until DFO was certain that PRV in salmon farms would cause the extinction of the salmon of the Broughton was simply not acceptable. To avoid inconveniencing the salmon farming industry, DFO was playing with ecocide.
Strickland defined the minister’s reliance on scientific uncertainty to support his ministry’s lack of action as a “badge of unreasonableness.” She found very little evidence that DFO demonstrated concern for wild salmon, citing a recent auditor general’s finding that the Department did not monitor wild salmon health. She underlined that DFO still relied heavily on one paper regarding the lack of occurrence of HSMI in farm salmon, the one written by Garver et al. in 2016. This was the paper that Dr. Marty co-authored and then undermined just a few months later when he stated in an email that he had found evidence of HSMI in BC farm salmon and wanted credit for this discovery. The conclusions of this paper were shown to be false a year later when Di Cicco, Miller and colleagues published the evidence that HSMI was present in a BC salmon farm. And yet DFO clung to it like a sinking life raft.
Strickland gave the Canadian minister of fisheries four months to write a new PRV policy that would comply with the law.
During the course of this second lawsuit, the Canada Pension Plan became the sixth-biggest shareholder in Mowi, increasing its number of shares when the ‘Namgis filed and then again when the joint lawsuits from ‘Namgis and myself were heard. Was this a signal to the industry that despite the growing resistance, both on the ground and in the courts, Canada was still their friend? My overarching question remains: Why would Canada break its own laws, undermine its own commitment to reconciliation with First Nations and subvert its own science to make it possible for this industry to continue?
Three days after Strickland’s decision, DFO announced that an expert panel it had convened had found that PRV had minimal impact on the Fraser sockeye. But within minutes of that announcement, one of the experts on the panel, John Werring, a biologist with the David Suzuki Foundation, insisted that no such consensus had been reached. I would learn later through an access to information request that Dr. Miller’s edits to this report, which ran contrary to this consensus, had been deleted. A week after the expert panel debacle, Minister Wilkinson did a one-on-one interview with Global TV, on one of Canada’s biggest newscasts, expressing his opinion that PRV is not harming wild salmon. Wilkinson’s opinion, of course, is a lesser standard than two Federal Court decisions. His opinion does not excuse his ministry from following the laws of the country.
Two weeks after the decision, on February 18, Wilkinson showed signs of realizing the gravity of the situation and was quoted in the Globe and Mail saying, “B.C.’s salmon farming industry should be shifted out of sensitive wild salmon migration pathways.” This acknowledgement was unprecedented, but he still did not mention whether he would abide by the court’s ruling and initiate PRV-screening of farm salmon.
Four days later, he said, “We need to get beyond this debate that nobody is winning right now,” and he blamed the two “camps” for being unable to have an appropriate dialogue. When pressed again by a CBC Radio interviewer about moving the industry off wild salmon migration routes, he wouldn’t comment. Now we were back in familiar territory. Perhaps thumbscrews had now been applied to this minister.
The “debate” has been won, twice, in Federal Court. But if the minister responded to the science that reported that PRV is a “disease agent,” and screened all farm salmon for the virus, and followed the law that prohibits transfer of infected fish, the industry might not have enough uninfected fish to farm in Canada. Indeed, beginning in the spring of 2018, Washington State prohibited transfer of PRV-infected farm salmon into marine pens. The company operating there, Cooke Aquaculture, agreed to purchase only PRV-free eggs from their source hatchery in Iceland. However, pre-transfer screening found the young salmon reared from those eggs were infected. Cooke Aquaculture tried again, but the fish were still infected, a finding that led to destroying a total of 1.6 million fish. Even though legally they were allowed to continue farming until 2025, they have been unable to stock a single farm since the prohibition on PRV infection.
While three previous Canadian ministers had got away with doing nothing since 2015, Wilkinson was in the hot seat and the federal government of Canada was facing a different crisis. Prime Minister Trudeau and his staff were accused of pressuring the minister of justice, Jody Wilson-Raybould, to go easy on a corporation, SNC-Lavalin, which was facing charges of corruption and fraud. This wasn’t proof that the Trudeau government was any worse than previous governments; in fact, it was likely better than previous governments in that it had appointed ministers with integrity who objected to business as usual. However, his government’s handling of this Norwegian industry and its viruses raised similar questions about whether someone had been told to go easy.
On June 4, at the end of a four-month extension that Wilkinson had requested from the judge, he made the announcement that yes, Canada would screen for the virus, but only for the Norwegian and Icelandic strains. This put me in a difficult position. This announcement was huge—the first time any minister of fisheries had responded to a virus that could destroy Canada’s wealth of wild salmon. But all of the virologists I worked with were clear that all PRV in British Columbia is from the Atlantic Ocean. It was DFO and industry virologists who had come up with the unsubstantiated theory that there was a harmless, provincial strain of PRV. This meant there was a mystery strain of PRV that no one I knew had detected and government refused to elaborate on, and fish infected with it would be cleared for transfer. It was hard not to return to the greased pig analogy.
I had to decide whether I would respond favourably to Wilkinson’s announcement—as a significant move in the right direction—or take the role of the perpetually angry biologist who is never satisfied with anything government does.
I chose option number one and then made an effort to speak with him, because I felt certain that he was not getting the whole story on this virus from his staff. To his credit, Minister Wilkinson granted me an hour of his time and we had a frank conversation. I could see the difficulty the ministers had faced on this issue. Plucked from a life devoid of anything to do with fish and their diseases and placed in a decision-making position, these ministers had to decide whether to believe their senior staff or try to sort through the merits of what a group of quarrelsome scientists were arguing about. When I presented the evidence, he created a Fish Health Committee and put me on it.
In late September 2019, Justin Trudeau, campaigning for a second term as prime minister of Canada, made a promise to move all salmon farms into closed containment units by 2025, which would put an end to all the risk of impact on wild salmon. The salmon farming industry complained bitterly, saying that raising salmon on land has not been economically proven, even though companies like Atlantic Sapphire in the US and other companies in Norway were rapidly building huge salmon farms on land that will soon rival British Columbia’s farm salmon production. Minister Wilkinson responded that the promise by the federal Liberal Party to create a solid barrier between wild salmon and farm salmon “reflects a precautionary approach to a divisive issue.” That word again.
On October 22, Mowi’s CEO, Alf-Helge Aarskog, made headlines in IntraFish with the aggressive comeback, “Trudeau will change his mind on salmon farming.” Sure enough, by January 19, 2020, the Liberal government had been re-elected with a minority in Parliament, Wilkinson was transferred out of the Department, and the newly appointed minister of fisheries, Bernadette Jordan of Nova Scotia, said the 2025 deadline was just a deadline for coming up with a plan to move the salmon farming industry into tanks. She was photographed smiling with the managing director of Mowi Canada West. The progress made with the previous minister was lost.
In February 2019, the European Commission had conducted a raid on Mowi, Grieg and other salmon farming company operations in Scotland and opened an investigation into whether these companies were acting as a “cartel” engaged in price fixing. In the United States, the Euclid Fish Company, joined later by Cape Florida Seafood, The Fishing Line and Beacon Fisheries, filed a class-action lawsuit on April 24 against Mowi, Grieg Seafood and other salmon farming companies for price-fixing. In June, a consumer, Robin Wilkey, filed a class-action lawsuit on behalf of consumers in twenty-seven states in the US District Court in Maine against several Norwegian-owned salmon farming companies for maintaining artificially high prices. New York–based Prime Steakhouse also filed a separate purchaser price-fixing lawsuit, and more lawsuits were filed in Toronto. All told, the companies were now being sued for a billion Canadian dollars.
Officials from Mowi and Grieg denied any involvement in non-competitive practices. Then the Norwegian Competition Authority blocked European Commission investigators from raiding their head offices, claiming that only Norwegians could investigate in Norway. In August, Grieg Seafood reported spending $891,960 on legal fees, saying that it hoped the lawsuits would end soon.
All this legal action reminded me that the Norwegian newspaper, Dagbladet, had run a front-page story in January 2010 under the headline: “Here is the salmon farming ‘Mafia’ network.” It had featured the faces of ten people across industry and government, over the caption, “Producers have good control of all the important positions in the Ministry of Fisheries in Norway.” One of those faces was the Norwegian minister of fisheries herself.