Executive Summary: Key Legal and Evidentiary Issues

• The Minister's refusal to re-issue aquaculture licenses for Discovery Islands salmon farms was challenged on procedural fairness and reasonableness grounds

• Mowi argued breach of the audi alteram partem rule by the Minister's consideration of non-CSAS scientific information without providing opportunity to respond

• Legitimate expectation claims that the Minister would rely exclusively on DFO's scientific advice were not substantiated by the record

• Scientific uncertainty regarding cumulative effects of pathogens on wild salmon justified the Minister's heightened precautionary approach

• Discovery Islands' unique geographical characteristics warranted distinct treatment under the Cohen Commission's findings

• The Minister's broad discretion under section 7(1) of the Fisheries Act entitled her to depart from departmental recommendations with adequate justification

Background and factual circumstances

Open net-pen salmon farming in coastal British Columbia has been the source of an intense, decades-long debate. The Cohen Commission, established in 2009 to investigate the decline of Fraser River sockeye salmon, identified the Discovery Islands as an area where wild salmon may be particularly vulnerable to the transmission of disease from salmon farms due to the narrow passage between the islands and their location on the migration route of young Fraser River sockeye salmon. The Commission recommended that all net-pen salmon farms in the Discovery Islands be prohibited by September 2020 unless the Minister is satisfied that such farms pose at most a minimal risk of serious harm to the health of migrating Fraser River sockeye salmon.

In 2019, the Prime Minister tasked the Minister with creating a plan to transition away from open net-pen salmon farming in coastal British Columbia waters, including the Discovery Islands, by 2025. The Minister's initial 2020 decision to phase out salmon farming in the Discovery Islands was successfully challenged by Mowi and other operators in the Federal Court, which found the decision procedurally unfair because the operators were not given notice of the scope of what the Minister was considering and did not have a meaningful opportunity to provide submissions.

The consultation process and subsequent decision

Following the Mowi I decision, the Minister initiated a consultation process from July to December 2022. The Minister's June 2022 letter to license holders outlined specific considerations that would inform the licensing decision, including knowledge gaps concerning the cumulative effects of various stressors on wild salmon and the need for a more risk-averse or precautionary approach.

Mowi's representatives attended 11 consultation meetings, including three meetings with the Minister, a meeting with the Deputy Minister, and a meeting with staff in the Prime Minister's office. Mowi also provided written submissions to the Minister on November 30 and December 21, 2022. The BC Salmon Farmers Association also filed written submissions on behalf of the industry. After the initial period of consultation, the Minister sought further information through consultation with non-DFO academics and environmental non-governmental organizations, which Mowi claims it was not made aware of.

On February 17, 2023, the Minister decided not to issue licenses for any open net-pen Atlantic salmon farm in the Discovery Islands, and only accepted to renew temporarily the aquaculture licence for a small-scale operation. Her decision rested on three main considerations: her belief that the Discovery Islands are a unique area that warrants a more precautionary approach, the continued decline of wild Pacific salmon stocks, and scientific uncertainty surrounding the risks of salmon farms in the Discovery Islands warranting a highly precautionary approach.

Procedural fairness analysis

The Federal Court of Appeal found no breach of procedural fairness. Applying the Taseko test, the Court determined that the information from the non-CSAS science was not prejudicial to Mowi because it did not change the case it had to meet, as Mowi was aware of the existence of conflicting science. The record demonstrated that Mowi knew of the existence of conflicting scientific opinions about the risks to wild salmon posed by Discovery Islands salmon farms and also knew that this was a major concern for the Minister.

The Court rejected Mowi's argument that it had a legitimate expectation that the Minister would rely exclusively on CSAS's assessments and DFO advice. The appellant failed to identify any clear, unambiguous, and unqualified statements by the Minister or DFO that could raise a legitimate expectation, and the Stated Considerations advised that new information would be considered in the Department's management approaches.

Reasonableness of the Minister's decision

The Court emphasized that licensing decisions under the Fisheries Act require a consideration of public interest factors that extend beyond the private interests of licence holders and are assessed on polycentric criteria. Decisions based on such open-ended criteria are very much unconstrained and therefore harder to set aside under the reasonableness standard. The Minister possessed broad discretion under section 7(1) of the Act to issue aquaculture licenses in her "absolute discretion."

The Court found a reasonable factual foundation in the record supporting the Minister's statements that the Discovery Islands are a unique area and that there is scientific uncertainty. The Cohen Commission Report's identification of the Discovery Islands as an area with unique characteristics and potentially higher risks relating to wild and farmed salmon, combined with more recent information from First Nations and scientific studies, provided adequate evidentiary basis for the decision.

Regarding the Minister's departure from DFO's recommendation, the Court held that adequate reasons were provided. The Minister explained that she disagreed with CSAS risk assessments and found gaps in these studies because they did not consider the cumulative effects of the nine pathogens on Sockeye salmon or other species of wild salmon in the Discovery Islands, and also because they did not consider the impact of these pathogens in conjunction with other stressors like climate change.

Ruling and outcome

The Federal Court of Appeal unanimously dismissed Mowi's appeal. Chief Justice de Montigny, with Justices Heckman and Walker concurring, affirmed that the Minister's decision was both procedurally fair and reasonable. The decision demonstrated justification, transparency, and intelligibility, and was justified in relation to the relevant factual and legal constraints bearing on the Minister's broad discretionary mandate. The appeal was dismissed with costs. No specific monetary amount was at issue in this licensing decision appeal; rather, the case concerned the Minister's refusal to issue aquaculture licences for Mowi's 11 Discovery Islands sites.