DFO has been denying the link between salmon farming and the spread of piscine orthoreovirus (PRV) for over a decade, burying its own findings that the virus can be lethal to wild salmon. Now that those findings have finally been daylighted by the Information Commissioner's order, it's past time to revise the policy that lets industry put infected fish in the water. See recent article in Saanich News.

Original text from Namgis news release and backgrounder posted below.

Press Release for release at 10:30 am May 15, 2024

‘Namgis First Nation Re-activates Judicial Review of DFO’s PRV Policy
On May 15, 2024, ‘Namgis notified the Minister of Fisheries and Oceans that ‘Namgis is re-activating its judicial review of Fisheries and Oceans Canada’s (DFO) policy not to test for the Piscine orthoreovirus (PRV) before stocking open net-pen feedlots in British Columbia (the PRV Policy).
In 2021, ‘Namgis had agreed to suspend this litigation while DFO implemented the Prime Minister’s mandate to remove open net-pen feedlots from British Columbia.
‘Namgis is re-activating its judicial review of DFO’s PRV Policy as a last resort, having lost faith in DFO’s, the Minister’s and the Prime Minister’s commitment to that mandate.
“Going to court is always a last resort,” said elected Chief Victor Isaac. “Unfortunately, we have to. DFO won’t protect wild fish. DFO won’t protect our rights. We can’t let DFO drive wild Pacific salmon to extinction. We won’t let the Minister ignore and trample on our rights.”
The PRV Policy is one of the risk assessments that DFO relies on to deny that open net-pen feedlots stocked with Atlantic salmon do not harm wild Pacific salmon. When ‘Namgis is successful and the PRV Policy is again found unlawful, the lawfulness of any decisions relying on it will be called into question – including DFO’s impending Transition Plan, the renewal of aquaculture licences, and the licences the companies need to stock fish farms.
“We put this litigation into abeyance in 2021 based on the Prime Minister’s mandate to remove fish farms from British Columbia,” said hereditary Chief Don Svanvik. “DFO promised to collaborate with us on the Transition Plan. DFO broke that promise. It’s clear that DFO is going to break its promise to implement the Prime Minister’s mandate. We couldn’t wait any longer. We had to go back to court now. After DFO releases its Transition Plan and renews fish farm licences this June, I am confident other First Nations will be in court with us.”
In 2023, Parliament’s Standing Committee on Fisheries and Oceans asked for an investigation of the value and accuracy of DFO’s risk assessments, including the PRV risk assessment, noting the suppression of scientific evidence. The Public Sector Integrity Commissioner is currently investigating DFO officials for preventing
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scientists communicating their research to the public, the media and Parliament. Those same DFO officials oversaw the creation and the implementation of the PRV Policy.
“In 2019, I was part of consultation on the PRV Policy,” said elected Councillor Kelly Speck. “It was all window dressing. DFO didn’t want to listen to us. DFO didn’t want to listen to the science. It’s been the same thing with consultation on the Transition Plan. It’s all window dressing for DFO to buy time for an industry whose time is long past.”
PRV-1 is a foreign virus that causes disease in both Atlantic and Pacific salmon. DFO refuses to act on that science and protect wild fish.
“Our research has found that PRV-1 originates from the Atlantic Ocean and has been spread to BC through salmon aquaculture,” said Dr Gideon Mordecai Research Associate, UBC’s Institute for the Oceans and Fisheries. “In BC, the virus is continually transmitted between open-net salmon farms and wild Pacific salmon. PRV-1 causes heart disease in Atlantic salmon and has been closely associated with a different disease in Chinook salmon in which blood cells rupture, leading to kidney and liver damage.”

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PRV Policy Judicial Review Announcement – May 15, 2024

Background
What is the Piscine orthoreovirus (PRV)?
•PRV is a virus found in high concentrations in fish farms around the world, including in BC.
•It is one of the leading causes of death in farmed Atlantic salmon globally.

Why is PRV a problem in BC?
• PRV causes diseases in both farmed Atlantic salmon and Pacific salmon species in BC.
   o PRV causes Heart and Skeletal Muscle Inflammation (HSMI) in farmed Atlantic salmon.
   o In endangered Chinook, PRV causes a disease that results in the blood cells of infected fish to rupture and can eventually kill the fish.
• PRV is a foreign virus, introduced to BC from the North Atlantic at the same time open net-pen Atlantic salmon farming spread in the province.
• Millions of farmed Atlantic salmon in densely crowded open net-pens amplify and spread PRV along the migratory routes of endangered Pacific salmon:
   o Open net-pens provide no protection or barrier between diseased farmed fish and wild salmon.
   o Feedlots spread PRV into the surrounding marine environment in enormous quantities.
   o PRV infection is significantly higher in wild salmon exposed to open net-pens.

How does Fisheries and Oceans Canada (DFO) address PRV in farms?
• DFO refuses to address the harm caused by PRV.
• DFO denies PRV harms wild Pacific salmon.
• DFO allows farmed fish infected with PRV to be transferred into ocean-based open net-pen farms (the PRV Policy).
• DFO last considered its PRV Policy and conducted a PRV risk assessment in 2019. Since 2019:
   o Canadian and international scientists have published further research confirming PRV is a serious risk to wild Pacific salmon.
   o A Parliamentary Committee (FOPO) recommended:
      ▪ investigations into DFO’s aquaculture risk assessments, including its one on PRV, for the perceived suppression of evidence in those risk assessments that fish farms cause harm to wild salmon; and
      ▪ that DFO reconsider its PRV risk assessment in light of new scientific evidence that the virus poses a risk of harm to wild salmon in BC.
   o DFO has ignored FOPO’s recommendations.

What is ‘Namgis’ lawsuit about?
• ‘Namgis is challenging the lawfulness of DFO’s PRV Policy.
   o PRV poses a serious risk to the wild Pacific salmon ‘Namgis has relied on for millennia and continues to rely on to exercise their Aboriginal right to fish.
   o DFO’s PRV Policy further risks endangered Pacific salmon and ‘Namgis’ ability to exercise its Aboriginal right to fish.

What is the history of this lawsuit?
   o In 2019, the Federal Court found the PRV Policy unlawful because:
       1. DFO wrongly interpreted its core mandate: the protection and conservation of fish.
       2. DFO did not adhere to the precautionary principle – to anticipate, prevent, and attack the causes of environmental degradation and not use scientific uncertainty to excuse inaction.
       3. DFO breached its constitutional duty to consult and accommodate ‘Namgis.
       4. DFO failed to consider the risk to wild Pacific salmon when regulating PRV, the virus responsible for one of the leading causes of death in fish farms globally.
   o The Court ordered DFO to reconsider the PRV Policy in accordance with the Court’s reasons.
   o The Court gave DFO four months to reconsider the policy. DFO did not consult ‘Namgis during that four-month period.
   o ‘Namgis agreed to DFO’s request for a four-month extension so DFO could consult ‘Namgis.
   o DFO still did not consult ‘Namgis during the extension period.
       • Documents released under the Access to Information Act confirm DFO finalized the policy before consultations with ‘Namgis began.
       • DFO publicly announced an “interim” PRV Policy without any consultation or notice to ‘Namgis.
       • In October 2019, DFO confirmed the same PRV Policy it had announced as an “interim” PRV Policy before consultations with ‘Namgis began.
       • During consultation, DFO repeatedly refused to answer ‘Namgis’ questions or provide the scientific evidence for the PRV Policy.
       • The same DFO officials who consulted with ‘Namgis are currently being investigated by the Public Sector Integrity Commissioner for preventing scientists from communicating research to the public, media and Parliament.
• ‘Namgis is challenging the October 2019 PRV Policy for DFO breaching its duty to consult and accommodate ‘Namgis and not adhering to the precautionary principle, among other reasons.

What is the status of the lawsuit?
• In March 2021, ‘Namgis and the Minister agreed to suspend the lawsuit (i.e. place it in abeyance).
    o In 2019 and 2021 the Prime Minister mandated the Minister of Fisheries and Oceans to work with First Nations to develop a plan to remove open net-pen salmon farms from BC by 2025 (the Transition Plan).
    o As part of its agreement with ‘Namgis, DFO committed to engaging and collaborating with ‘Namgis on the Transition Plan and implementing the Prime Minister’s mandate.
• Today, ‘Namgis notified the Minister and the other parties that ‘Namgis is reactivating the litigation.

Why is ‘Namgis going back to court?
• Going to court is the only way to protect wild Pacific salmon and ‘Namgis’ Aboriginal right to fish.
• DFO has not collaborated with ‘Namgis on the Transition Plan as it promised.
• DFO has repeatedly demonstrated it will not implement the Prime Minister’s mandate to remove open net-pen feedlots from BC.
• Throughout consultation on the Transition Plan, DFO has:
     o ignored calls from over 120 First Nations and the majority of British Columbians to remove this unsustainable industry;
     o ignored and misrepresented ‘Namgis’ submissions on the Transition Plan.

How is the PRV lawsuit related to the Transition Plan?
• The PRV Policy is a key aquaculture policy that allows open net-pen farms to operate in BC.
    o Under the current policy, open net-pens can be stocked with fish infected with PRV.
• As a key aquaculture policy, it is relied on for aquaculture management decisions in BC.
• When ‘Namgis is successful and the PRV Policy is again found unlawful, the lawfulness of any decisions relying on it will be called into question – including the Transition Plan.

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PRV Policy Judicial Review Announcement – May 15, 2024
Chronology
• 2015: The Federal Court found it was unlawful to stock open net-pen feedlots with fish infected with PRV.
     o For the Piscine orthoreovirus (PRV), DFO did not follow the law on the precautionary principle.
     o DFO’s arguments on the precautionary principle were “inconsistent, contradictory and, in any event, fail[ed] in light of the evidence”.i
     o The Court found that “[t]he evidence before the Court demonstrate[d] that there is a body of credible scientific study, conducted by respected scientists in different countries, establishing a causal relationship between PRV and HSMI [Heart and Skeletal Muscle Inflammation, the disease caused by PRV in Atlantic salmon]”.
     o DFO unlawfully gave the fish farm companies the right to decide for themselves if fish were free of disease and disease agents before stocking their feedlots.
• 2018: The Federal Court found that the risk of PRV to wild Pacific salmon constituted irreparable harm to ‘Namgis.
     o When stocking open net-pen feedlots DFO has “no supervisory control or objective criteria with respect to testing for PRV or HSMI”.
     o Despite the importance of wild salmon to ‘Namgis’ Aboriginal right to fish, DFO had refused to consult ‘Namgis on its PRV Policy and the risk of PRV to wild Pacific salmon.
     o Research has shown PRV is directly linked to HSMI.
     o PRV from farmed Atlantic salmon can be transferred to wild Pacific salmon.ii
• 2019: The Federal Court found DFO’s regulation of PRV unlawful for a second time.iii
     o The Court overturns DFO’s PRV Policy on four independent grounds:
        1. DFO wrongly interpreted its core mandate: the protection and conservation of fish.
        2. DFO did not adhere to the precautionary principle – to anticipate, prevent, and attack the causes of environmental degradation and not use scientific uncertainty to excuse inaction.
        3. DFO breached its constitutional duty to consult and accommodate ‘Namgis.
        4. DFO failed to consider the risk to wild Pacific salmon when regulating PRV, the virus responsible for one of the leading causes of death in fish farms globally.
     o The Court ordered DFO to reconsider the PRV Policy in accordance with the Court’s reasons.
• 2019: ‘Namgis filed for judicial review of DFO’s PRV Policy (again) for, among other reasons, DFO breaching its duty to consult and accommodate and failing to abide by the precautionary principle.iv
     o Documents obtained under the Access to Information Act demonstrate that DFO had drafted and completed the PRV Policy before consultation with ‘Namgis began.
• 2020: The Federal Court finds DFO breached the duty to consult on transfer licences issued under the PRV Policy. When DFO breached the duty consult ‘Namgis on the PRV Policy, it also breached the duty for licences issued under that policy: “It would offend common sense to hold otherwise.”v
• 2021: ‘Namgis and the Minister agree to put the judicial review of the PRV Policy into abeyance. The purpose of abeyance was to allow time for DFO to have collaborative discussions and engagement with ‘Namgis on its plan to transition open net-pen aquaculture from coastal BC by 2025 (the Transition Plan).
• 2024: ‘Namgis notifies the Minister that it will be reactivating the judicial review.vi DFO has not upheld its commitments to ‘Namgis regarding collaboration and engagement on the Transition Plan.

Endnotes
i Morton v. Canada (Fisheries and Oceans), 2015 FC 575, para 44.
ii ‘Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2018 FC 334, para. 92.
iii Morton v. Canada (Fisheries and Oceans), 2019 FC 143.
iv Federal Court File No. T-1798-19.
v ‘Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122, para. 38.
vi Federal Court File No. T-1798-19.

Shalina Kajani @ SK Marketing & Promotions
desk: (604) 801-5477 • mobile: (604) 377-7097 • email: shal inakajani [at] shaw.ca