Documentation:Open Case Studies/FRST522/2020/Water Governance and Open-net Fish Farms in the Broughton Archipelago, British Columbia, Canada

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The Broughton Archipelago is an area of small islands and islets, situated between northern Vancouver Island and mainland British Columbia, Canada. The archipelago encompasses an area from the mouth of Knight Inlet to the Queen Charlotte Strait, with dozens of islands in between[1] The area is the traditional and ancestral territory of several First Nations who have inhabited the area for generations, evidence of which can be seen through clam middens, petroglyphs, and culturally modified trees [1]. Salmon are of great cultural, economic and social significance to First Nations of British Columbia[2], who are known to be amongst the oldest fishing cultures on the planet[3].

Fish farms first arrived of significance on the British Columbia coast in the 1980's, with provincial approvals for new sites being permitted through the 1990's [2]. Since their arrival in British Columbia there has been considerable public controversy as a result of conflicting environmental, First Nations, and industry interests[4].

Description

Wild salmon in British Columbia are considered a keystone species, one that is integral to various ecosystems with cultural, economic and environmental importance to British Columbia[5]. Wild salmon have facilitated fisheries for First Nations for thousands of years, and since the 1870's have provided industrial fisheries for British Columbia[2] that are now worth one billion dollars annually[6].

Spawning sockeye salmon

History of Fish Farms in the Broughton Archipelago

Fish farms first came to British Columbia in the 1980's, and despite a brief moratorium on new farms in the 1990's, sites continued to be approved along the coast[2]. The Kwikwasut’inuxw/Haxwa’mis, Namgis, and Mamalilikulla First Nations have never consented to the farms in their waters, and despite concerns from affected First Nations finfish licenses continued to be granted throughout the 1990's and early 2000's[7] . Since 2012 there have been temporary limits set on expansion of fish farms in British Columbia, which stalled at 17 in the Broughton Archipelago following the findings of the Cohen Commission[5]. The tensions regarding fish farms in the area came to a head in fall 2017 when concerned local First Nations occupied a fish farm facility on Midsummer Island, as part of an effort to remove fish farms from their traditional waters to which they never consented [8]. Fall 2017 also saw the meeting of provincial and First Nations leaders in Alert Bay, which eventually led to the transition of fish farms from the Broughton Archipelago.[1]

See the timeline below for a summary of events.

Declining Salmon Populations

Wild salmon of British Columbia have been experiencing declining numbers for several decades, with runs across the province experiencing biodiversity loss, facing risk of local extinction, and not meeting targets[9]. A 1999 federal audit of DFO reported concerns for the longevity of salmon in British Columbia as a result of overfishing, loss of habitat and a variety of other factors[9]. Following three consecutive record low returns of the Fraser River Sockeye, Canada's largest salmon run, the federal government commissioned an inquiry into this unforeseen event known as the Cohen Commission[10]. Since this time salmon returns continue to be a source of significant concern, with continually declining numbers of Sockeye, Coho and Chinook salmon that are facing challenges including a warming climate and water temperatures, disrupted food webs and landslides[11].

Stakeholders

While people all over British Columbia rely on, or are affected by wild salmon of British Columbia, there are four key groups in the context of the Broughton Archipelago and the events transpiring.

Local First Nations

The Broughton Archipelago is the territory of numerous First Nations, notably the Kwikwasut’inuxw/Haxwa’mis, Namgis, Tlowitsis-Mamtagila, Dzawada'enuxw and Mamalilikulla First Nations in the context of fish farms. First Nations have fished and "co-evolved" with salmon for thousands of years, and have long history of fishing specific runs, locations, and times[3]. There is evidence that for the last 5000 years First Nations have obtained 90% of dietary protein from the marine environment, which demonstrates their ability in managing several fisheries they were heavily dependent on, without diminishing the populations[3].

In June 2020 the First Nations Leadership Council, which includes the Coalition of the British Columbia Assembly of First Nations, the First Nations Summit, and Union of British Columbia Indian Chiefs, released a statement calling for an end to open-net salmon farming in British Columbia, citing disease from farms contributing to declining salmon populations[12]. The letter clearly communicates the urgency of their concern, stating “we need to end salmon farming in our open oceans now to protect both wild salmon and Indigenous ways of being from extinction.”[12].

Fisheries and Oceans Canada

Fisheries and Oceans Canada (DFO) has four core responsibilities in its mandate; fisheries, aquatic ecosystems, marine navigation, and marine operations and response[13] Within the responsibility of fisheries is protecting and managing Canada's fisheries, including management of aquaculture, and the support of Indigenous people in Canadian fisheries[13]. DFO is also responsible for working with the province of British Columbia and Indigenous communities to oversee the commitment made to transition from open net fish farms in coastal British Columbia by 2025[13]. As part of this transition DFO is working to legislate the Aquaculture Act, which will include regulations and national standards to improve the aquaculture industry in Canada[14]

An open net fish farm in the Broughton Archipelago

Aquaculture

Small scale farming of Chinook and Coho salmon first began in coastal British Columbia in the early 1970's, with a dramatic increase in farms through the 1990's[5]. The industry brought with it economic benefits, as well as concerns that have shaped aquaculture in British Columbia as it exists today[5]. Aquaculture in British Columbia produces an annual 90 000 metric tonnes of salmon, which accounts for approximately 60% of farmed fish produced in Canada[5]. Farmed salmon represent one of Canada's most valuable agricultural products, and in 2016 contributed $1.5 billion to British Columbia's economy[5]. Three major companies own the fish farms that cultivate Atlantic salmon in British Columbia, two with headquarters in Norway and one with Japanese ownership[5]. The Broughton Archipelago has a total of 17 fish farms in its waters, owned and operated by Cermaq Canada Ltd and Marine Harvest Canada Inc.[7].

Environmental Advocates

Environmental advocates are engaged in the future of aquaculture in British Columbia. Most notably, Alexandra Morton has done extensive research and engages with First Nations to support their efforts regarding fish farms including collaboration on scientific papers and legal action.[15] Morton has resided in coastal British Columbia for over forty years, initially researching killer whales but pivoting her efforts to addressing the changes she observed after the arrival of fish farms[16].

There are several non-profits engaged in this context, with Pacific Salmon Foundation (PSF) being a significant player. The organization was founded in 1987 with the intent to conserve and restore wild salmon populations of British Columbia and the Yukon, and works with stakeholder groups at various levels to engage with their salmon initiatives. [17] PSF functions independently of government, but works with the DFO through the Strategic Salmon Health Initiative which addresses the high mortality rate of juvenile salmon [17]. Watershed Watch Salmon Society is another non-profit that works to "defend and rebuild"[18] wild salmon populations of British Columbia, using science-based advocacy and engagement with communities and organizations. [18]

Environmental Concerns

Aquaculture can have adverse effects on wild fish populations from pathogens, drugs and pesticides, and fish escaping the pens leading to adverse genetic impacts on wild fish[19]. Of these concerns, sea lice and viral transmission tend to receive the most attention in the debate about fish farms.

Sea Lice

Sea lice has long been a prominent concern of First Nations regarding fish farms, which when transferred from salmon in open-pens to passing juvenile wild salmon can leave them more vulnerable to disease or predation[19]. When fish farms are not present juvenile salmon typically have low rates of sea lice infestation, however, in the presence of fish farms they can become infested and suffer from high mortality rates[20]. In the early 2000's high rates of infestation of juvenile salmon led to regulations that required industry to self-report infestation levels on their farms, and included mandatory treatment with the intention to control sea lice infestation levels of farmed salmon[20].

Sea lice on Atlantic salmon

In the fall of 2017 a review of self-reported sea lice counts by industry showed that numbers reported were lower than the actual parasitic load on the fish[20]. These findings reveal that there were likely delays in expensive delousing treatments, which are government mandated to prevent epidemics in passing migratory juvenile wild salmon[20].

Viral Transmission

Piscine orthoreovirus Strain 1 (PRV-1) is known to cause the disease heart and skeletal muscle inflammation (HSMI) in Atlantic salmon[21]. First confirmed in Norway in 1999, PRV was initially a reportable disease but this is no longer the case due to its pervasiveness amongst Atlantic salmon[21]. While HSMI has only been officially diagnosed in Atlantic salmon, in recent years there are increasing reports of Pacific salmon with disease linked to PRV-1, in countries with Atlantic salmon farms including Norway, Japan and Chile[21]. In B.C., where wild salmon have high commercial importance, there is debate whether high levels of this virus in open-net fish farms are affecting wild migratory salmon that swim past the pens[21].There is a growing body of research in British Columbia investigating the question of PRV and HSMI development in Pacific salmon, with several papers over the past decade that have been significant in this evolving science.

A significant factor in diminishing populations is premature adult salmon death prior to spawning, for which a causative factor hasn’t yet been determined[6]. In "Genomic Signatures Predict Migration and Spawning Failure in Wild Canadian Salmon" [6], a hypothesis is made that the genomic patterns observed in prematurely dead spawning salmon are associated with a virus contracted at some point prior to arriving back at the spawning river. Further research has demonstrated evidence that exposure of wild salmon to farmed Atlantic salmon is associated with PRV infection, which may adversely impact the ability of salmon to complete lengthy spawning migration and possibly affect population numbers[22]. Additional research from 2018 concluded that "“migratory chinook salmon may be at more than a minimal risk of disease from exposure to the high levels of PRV occurring in salmon farms.”[21]

International Law

UNDRIP

In 2007 the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples' (UNDRIP), with Canada confirming its support in 2016[7]. While the declaration should be considered in its entirety, there are several articles which are especially relevant to the context of fish farms in the Broughton Archipelago.

  • Article 19, which states "Indigenous peoples have the right to participate in decision-making in matters which would affect their rights through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions"[7]. Article 19 recognizes Indigenous institutions as a part of decision making, and played a role in ensuring government to government negotiations between the Province of British Columbia and the Kwikwasut’inuxw/Haxwa’mis, Namgis, and Mamalilikulla First Nations in 2018[7].
  • Article 32 states "States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to maintain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in the connection with development, utilization, or exploitation of mineral, water or other resources"[7]. This article is of significance considering First Nations were only superficially consulted during the introduction of aquaculture to British Columbia[5], with ultimate power lying in the institutions of the federal governments.

Federal and Provincial Law

Constitution Act 1982

Section 35 of the Constitution Act 1982 includes the recognition and affirmation of Aboriginal rights, however, it does not define Aboriginal rights[23]. As a result they have been the subject of ongoing debate, and through Supreme Court of Canada decisions have been understood to include cultural, economic, political and social rights[23]. Of significance to the context in British Columbia, is that Section 35 only applies to "existing" rights, and that those extinguished by treaties prior to 1982's Constitution Act are not protected[23]. The majority of British Columbia remains unceded, and therefore Section 35 would apply.

Tsilhqot'in Decision

Tsilhqot’in Nation v British Columbia was initiated in 1989, brought forward by the Tsilhqot’in First Nation as a defense to clear-cut logging that put their land and livelihoods at risk and left only a small remaining area of intact forest on their traditional lands[24]. The case took 25 years to move through the court system and was eventually heard by the Supreme Court of Canada. The case resulted in the unanimous and “ground-breaking decision”[24] where Aboriginal land title was “recognized and affirmed by the Court as a fact”[24] for the first time in Canada, rather than as simply a theoretical concept. While the decision recognized land title, and not water, it remains significant in the landscape of Aboriginal rights in Canada in that "the way has been cleared to right a great historical injustice, i.e., that the Aboriginal title lands of First Nations were systematically exploited for the benefit of others and taken from First Nations without their consent."[24]

DRIPA

In 2013 the Province of British Columbia committed to UNDRIP[7], followed by legislating the Declaration on the Rights of Indigenous Peoples Act in November 2019 guided by the Calls to Action of the Truth and Reconciliation Commission[25]. The Province of British Columbia is now working on implementing the Act, which aims to harmonize provincial law with UNDRIP while improving transparency, predictability, and respecting Indigenous peoples human rights[25]. The legislation of UNDRIP is significant to First Nations who are opposed to fish farms on the British Columbia coast, although it is an Act that remains in its infancy there is potential for significant changes in how First Nations are engaged decision-making as it relates to aquaculture.

Tenure Jurisdiction and Bundle of Rights

Aquaculture in British Columbia is regulated by overlapping jurisdiction. The federal government is responsible for the fisheries aspect, while the provincial government manages siting and tenure. Overlapping all of this is the fact that coastal waters are First Nations territory that have never been ceded, which has led to legal discourse and action on the rights and title of this coastal landscape.

Federal

The DFO has jurisdiction over "Sea Coast and Inland Fisheries"[10] , as per the Constitution Act 1982. This is understood to include the broad responsibility of managing and preserving the fishery, which encompasses managing for economic benefit and is guided by the Fisheries Act [10]. More specifically the management of aquaculture regulations is guided by the Pacific Aquaculture Regulations, SOR/2010-270 since coming into force in 2010[10]. The DFO is the central authority on managing fisheries in Canada, which includes issuing fisheries licenses that also encompasses aquaculture. The Supreme Court has affirmed this central role, stating that even when Aboriginal rights and title are recognized under Section 35 of the Constitution Act that this must not "undermine Parliament’s ability and responsibility with respect to creating and administering overall conservation and management plans regarding the fishery.”[10]

Provincial

The Province of British Columbia is responsible for issuing licenses to aquaculture operations for the siting of their finfish facilities, guided by Section 11 of the Land Act [7]. While there is some overlap with the Ministry of Agriculture in testing of farmed fish through the Animal Health Centre[7], the provincial government's main involvement with aquaculture in British Columbia comes back to siting licenses.

Bundle of Rights

The bundle of rights is a commonly used metaphor which conceptualizes the complexities of property ownership, using strands to represent the various rights that exist regarding property, land or a geographic area. There are eight strands in the bundle of rights; access, withdrawal/use, exclusion, management, alienation, duration, bequeath, and extinguishability[26].

Prior to January 2018 the First Nations of the Broughton Archipelago only had legal access and withdrawal rights, with the other strands under either federal or provincial control. This however has shifted, as described below in the section "Engagement with First Nations of the Broughton Archipelago". Since this time the First Nations have secured their rights to exclusion, management and duration, evidenced by agreements for transitioning out of fish farms, creating an indigenous oversight program, creation of a timeline to phase out farms, and requiring indigenous agreement for farm operations in the Broughton Archipelago.

Fisheries Assessments

Fisheries in BC have been the subject of ongoing assessments and inquiries. A 2017 assessment in the Canadian Journal of Fisheries and Aquatic Sciences focused on Canada’s Policy for Conservation of Wild Pacific Salmon, a federal management plan that prioritized conservation[9]. The assessment found various areas that show need for improvement in management including eroding monitoring efforts, significantly declining abundance of spawning adult salmon of multiple species, concerning Conservation Units for many salmon, and that "42% of the Conservation Units that we assessed as Red (threatened) would have improved in status had the Canadian fishery been reduced".[9] These findings are significant in the context of the other federal and provincial assessments and reports done.

Cohen Commission [2]

The Cohen Commission of 2012 was an extensive investigation into the decline of Canada's largest salmon run, the Fraser River Sockeye, precipitated by 18 years of decline and three consecutive years of record low returns in 2007, 2008, and 2009 that were not predicted by forecasts[10]. It included 75 recommendations, and extensive details on working towards achieving these recommendations. Of particular relevance to the fish farms in the Broughton Archipelago, was the highlighting of the conflict of interest that DFO has a "paramount regulatory objective to protect wild fish"[27] while also ensuring "promotion of the salmon-farming industry and farmed salmon as a product"[27]. As stated in the report, as long as these mandates of DFO are at odds with one another, there is a risk that DFO will favor interests of industry over the protection and conservation of wild salmon[27]. As a result, the third of 75 recommendations in the report was to remove from the mandate of the DFO the promoting of salmon farming and its products[27]. While DFO has worked to implement many of the recommendations they have not moved forward this one, explained by the Minister of Fisheries and Oceans Dominic LeBlanc in 2016 that it is the responsibility of DFO to "promote the sustainable use of fish resources in a way that's good for the local economy"[28].

Auditor General of Canada [3]

At the end of 2017 the Office of the Auditor General of Canada submitted the "2018 Spring Reports of the Commissioner of the Environment and Sustainable Development to the Parliament of Canada. Report 1—Salmon Farming". The Audit of Fisheries, Oceans and Coast Guard of Canada (DFO), and the Canadian Food Inspection Agency (CFIA) assessed whether they “managed the risks associated with salmon aquaculture in a manner that protected wild fish”[19]. The findings of the report concluded that DFO was not adequately managing the risks of aquaculture to wild fish[19]. Key findings of the report included[19]:

  • DFO was not adequately progressing in risk assessments of specific diseases in farmed salmon, which would inform risk to wild salmon.
  • Key elements were missing from DFO/CFIA measures to prevent spread of pathogens and parasites from farmed to wild salmon.
  • Inadequate analysis by DFO on whether the drug and pesticides at fish farms would minimize harm to wild salmon.
  • DFO does not have a national standard of fish farm equipment, which would mitigate risk of farmed fish escapes.
  • DFO inadequately enforces the Aquaculture Activities Regulations and does not adequately publish up to date information related to this.

MAACFA [4]

In 2016, with increasing controversy surrounding fish farms in British Columbia, the Ministry of Agriculture's Advisory Council on Finfish Aquaculture (MAACFA) was formed and released its report in 2018. The council included people of a variety of backgrounds, with members representing academia, industry, First Nations, government, marine planning and environmental interests [5], tasked with providing the Minister of Agriculture with “strategic advice and policy guidance to the Minister of Agriculture”[5] regarding aquaculture in B.C. waters, specifically tenures in Crown land[5]. The council did not come to a unanimous decision on the future of open net fish farms in British Columbia, recognizing what they termed the "risk conundrum"; the acknowledgment that while open-pen fish farms pose a risk to wild salmon, there is no consensus on what the level of risk posed is and what level is acceptable[5]. A key theme of the recommendations is a “harm-reduction” approach, with an aim of emphasizing new perspectives and ideas that overcome “entrenched perspectives and inaction”[5]. The recommendations are meant to overcome conflict and move aquaculture forward in a way that benefits wild salmon, as well as the people involved[5].

The report includes Aboriginal rights and title under Theme 2, and includes key points agreed upon by all parties regarding indigenous peoples and fish farms in coastal waters[5]. Key points include:

  • Regardless of support for or against fish farms, all Indigenous communities rely upon healthy ecosystems for their food and economy[5].
  • First Nations in affected areas do not have a treaty, and therefore must be consulted regarding fish farms in a shared decision-making process. Rights and title are being recognized in court, and in line with UNDRIP this includes “free, prior and informed consent”[5].
  • There is an official recommendation to “acknowledge and incorporate First Nations’ rights, title and stewardship responsibilities in all aspects of fish farm governance, including tenuring, licensing, management and monitoring in a manner consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[5]”

Legal Proceedings

Since the arrival of fish farms in British Columbia coastal areas, there have been many legal proceedings. The 'Namgis First Nation and Alexandra Morton, as well as the case put forward by the Dzawada'enuxw, are some of the most current and are specific to the Broughton Archipelago.

'Namgis First Nation and Alexandra Morton

In September 2018 'Namgis First Nation argued in court against a federal policy that allows transfer of juvenile salmon not tested for piscine reovirus (PRV) into open-net fish farms in their territory[29]. The argument is based on the infectious nature of PRV, as well as the federal government failing to consult the 'Namgis when the licenses for these transfers were granted without PRV testing [29]. In a parallel case that was heard together with the 'Namgis First Nation, independent biologist Alexandra Morton and Ecojustice also argued against the policy allowing transfer of untested juvenile salmon into open-net fish farms. Their case specifically targeted the Fishery (General) Regulations, Section 56, that outlaws granting transfer licenses of fish that may present harm to protection and conservation of wild fish due to disease or disease agents [15].

In February 2019 the court ruled that the federal policy does not adhere to the precautionary principle, which promotes prevention of harm before it occurs, especially when there is incomplete scientific information about a potential risk [15]. In its response to this ruling, the Department of Fisheries, Oceans and the Canadian Coast Guard (DFO) stated that the ruling found their threshold for harm was considered too high and must be reassessed[30]. According to the DFO statement “the court said that upon revisiting this matter, ‘it is possible that the Minister will still conclude that it is appropriate to maintain the PRV Policy,’ or in other words, that it is not necessary to test for Piscine Orthoreovirus (PRV).” Therefore, DFO states it is revisiting this aspect of their policy and currently continues not to test juvenile salmon for PRV[30].

In July 2020 the Federal Court of Appeal issued a decision in regards to the 'Namgis claim that the federal government had failed to adequately consult, finding there was a "fresh duty to consult"[31] based on developing science of PRV and HSMI risk to wild fish from fish farms[31]. Despite this decision, the court did not quash the existing transfer licenses based on expiry dates and injunction deadlines [31].

Dzawada'enuxw Case

In early January 2019, the Dzawada'enuxw First Nation filed a federal court claim that argued there was no consultation or consent of their nation when ten fish farms were granted licenses to operate in their territory [32]. The claim argues that doing so infringed on their Aboriginal rights, which are supported by UNDRIP and protected by Section 35 of the Constitution Act 1982. Of note is the lawyer representing the Dzawada'enuxw First Nation, John Woodward, represented the Tsilhqot'in Nation at the Supreme Court of Canada in the ground breaking Tsilhqot'in case upholding Aboriginal title[32].

The Dzawada'enuxw First Nation are not signatories on the Letter of Understanding signed in December 2018 with the Provincial Government of British Columbia, Kwikwasut'inuxw-Haxwa'mis, 'Namgis and Mamalilikulla First Nations, and consider the agreement a set back[32]. According the John Woodward, the agreement included tenure extensions up to 2024 that they have active legal challenges for and contradict their goal of fish farm removals from their territory [32]. This case is ongoing.

Engagement with First Nations of the Broughton Archipelago

In October 2017, following the May 2017 provincial election that saw the New Democratic Party (NDP) come into power, various representatives of the British Columbia provincial government were invited to Alert Bay to discuss fish farms in the Broughton Archipelago. Included in the attendees were representatives and counsellors of the Kwikwasut’inuxw/Haxwa’mis, Namgis, Tlowitsis-Mamtagila, and Mamalilikulla First Nations, and provincial politicians and ministers including the Premier of British Columbia, John Horgan[33]. A second meeting was held in January 2018, and a Letter of Understanding (LOU) was signed by representatives of the groups in attendance[34].

The Big House in Alert Bay

Letter of Understanding [5]

The LOU acknowledges that First Nations “hold and exercise Aboriginal Title, Rights, responsibilities and authorities in relation to lands, water, resources and people of their territories”[34], and that provincial and federal government have authorized current fish farms without the consent of First Nations[34]. Section 35(1) of the Constitution Act 1982 is affirmed as well, recognizing Aboriginal rights and title in Canada. The LOU outlines a path forward regarding finfish aquaculture in the Broughton Area (Broughton Replacement Tenure Decisions), and confirms a “willingness to engage in a consent-based process consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)”[34]. Through signing the letter it is acknowledged that going forward negotiations will be government to government and consent based[7].

Steering Committee Recommendations [6]

Following the signing of the LOU in November 2018, the comprehensive report "Collaborative Solutions for Finfish Aquaculture Farms in the Broughton Area: Steering Committee Recommendations" was submitted by provincial and First Nations co-chairs of the Steering Committee. The report provides significant background to the history and context of fish farms in the Broughton Area, including harm to wild fish from fish farms and Aboriginal rights and title as they relate to fish farms in their territory[7]. Included in the report are also numerous recommendations which include:

  • “Orderly transition based on short, medium and long term actions”[7].
  • “Establish the First Nations oversight of the fish farms during the orderly transition”. This includes the establishment of an Indigenous Monitoring and Inspection Plan (IMIP), to oversee fish farm operations during the orderly transition[7].
  • “Increased capacity for First Nations monitoring and salmon restoration”[7].
  • “Increased provincial capacity", by increasing human and financial resources to facilitate the collaboration amongst First Nations, the federal government and tenure holders.
  • “Promote wild salmon restoration and/or enhancement programs”[7].
  • “New technology" that sees the provincial government consider incentives to move to new technology that reduces risk to wild salmon.[7]
  • “Timing” which includes specific dates set for Broughton Tenure Replacement Decisions and implementation of the IMIP. The report also includes site specific recommendations for the current Broughton Replacement Tenure holders, Cermaq Canada Ltd. And Marine Harvest Canada Inc. Specific dates and actions are defined for the orderly transition. [7]

Cermaq Canada Ltd and Marine Harvest Canada Inc. were both engaged in the negotiation process, and their letters of support are included in the document. Through signing of the document, the tenure holders were agreeing to immediately implementing the stated recommendations[7]. Since the signing of the agreement the farms are being transitioned out as planned with five already decommissioned, another five planned to be gone by 2022, and a final seven decommissioned by 2024[35].

Timeline of Events

  • 1970's: Initial arrival of aquaculture in coastal waters of British Columbia.[7]
  • 1980's: Arrival of salmon farms as industry, which included the introduction of Atlantic salmon farming.
  • 1990's: Aquaculture industry in British Columbia was growing and developing, with ongoing approvals of new salmon farming facilities.
  • 2009: This represented the third straight year of unexpected Fraser river sockeye decline, which lead to the initiation of the Cohen commission. First nations and other interested groups were starting to voice concerns about effects of salmon aquaculture prior to this event.
  • 2011: PRV first detected in wild salmon.[8]
  • 2012: Cohen Commission released.[9]
  • 2014: 25 year Tsilhqot’in Case recognizes Indigenous title, altering the legal landscape in Canada regarding First Nations rights and title to land.[10]
  • 2016: Ministry of Agriculture's Advisory Council on Finfish Aquaculture is formed.[11]
  • Summer and fall of 2017: Midsummer Island fish farm facilities are occupied by local First Nations for a two month period.[12]
  • Fall 2017: Meeting in Alert Bay of First Nations and provincial political leaders.[13]
  • January 2018: Letter of Understanding is signed, and MAACFA report is completed.
  • Spring 2018: Auditor General report found DFO didn’t adequately manage risks to wild salmon according to its mandate.[14]
  • Spring 2018: Study shows that PRV may be deadly to wild salmon.[15]
  • Fall 2018: Ecojustice represents Alexandra Morton in federal court, arguing that the DFO policy allowing fish untested for PRV to be put into open-net pens was illegal.[16]
  • December 2018: Agreement is reached on the transition of fish farms out of the Broughton Archipelago.[17]
  • January 2019: The Dzawada’enuxw Nation take the Government of Canada to court for infringing on Aboriginal rights by allowing fish farms in waters without consent.[18]
  • November 2019: Legislation of the Declaration on the Rights of Indigenous Peoples Act.[19]
  • June 25, 2020: FNLC, BCAFN, First Nations Summit, Union of BC Indian Chiefs release joint statement calling for the end of open-net fish farms in the Discovery Islands.[20]
  • July 2020: A fresh duty to consult is determined by the Federal Court of Appeal in the case of 'Namgis First Nation and DFO.[21]

Discussion

Central to this case study is dispute over several strands within the Bundle of Rights, and how they connect with legal control and claim to coastal waters. This is clearly an incredibly complex situation, with high stakes and significant historical context to be taken into consideration.

Relative Successes

When fish farms first started to arrive on the coast of British Columbia, affected First Nations were forwarded applications and given a brief time period to comment. Many First Nations did not have the technology or finances required to review and respond adequately, which led early fish farms often being unwelcome in First Nations territory[5]. Much has happened since then that will alter the landscape of fish farms in First Nations territory of coastal British Columbia such as UNDRIP, DRIPA, the Tsilhqot'in Decision, and the Letter of Understanding signed in 2018. First Nations are moving from having customary rights of their territory with minimal recognition, towards having legal recognition embedded within the laws of British Columbia and Canada.

The signing of the LOU is clearly a success in this case study, ultimately resulting from First Nations and the Province of British Columbia coming together and engaging in government to government negotiations. The LOU is the product of many stakeholders coming together, respecting and enacting the principles central to UNDRIP. This success story has also opened up the conversation for other First Nations on the British Columbia coast seeking to transition fish farms from their territory, as evidenced by renewed calls for removal of fish farms in the Discovery Islands [36].

Relative Failures

The dual mandate of DFO to both manage sustainable wild fisheries and promote aquaculture is of concern to many individuals and parties, and this potential conflict of interest was confirmed and made clear in the Cohen Commission. When considering that farming and processing of farmed salmon generated $1.5 billion for the British Columbia economy in 2016, and provided $86.1 million in government taxes[5] it is clear that this is a high stakes situation. It is also important to consider that wild salmon are not an insignificant contributor to the Canadian economy, being worth $1 billion annually[6]. With plummeting salmon populations causing great concern for local extinction of various species, the future of wild salmon in British Columbia is already a considerable failure.

While the salmon of British Columbia are valuable for numerous reasons, First Nations are especially connected to them and have been raising concerns about aquaculture affecting wild salmon for decades. The federal and provincial governments appear to have largely superficially addressed these concerns leading up to 2018.

Relative Powers of Stakeholders

While First Nations have been inhabiting the lands and waters of the British Columbia coast since time immemorial[3], their relative power has historically been repressed by the power of the provincial and federal governments. This is evidenced by the 17 fish farms in the Broughton Archipelago, which local First Nations have been voicing their concerns about since they first arrived[7]. It is clear that the power dynamics of this situation are shifting, as First Nations and the Province of British Columbia engage in government-to-government negotiations which do not include industry voices the way they have historically. This is not simply performative either: as UNDRIP is incorporated into British Columbia provincial law these sorts of negotiations will hopefully become more commonplace.

As long as DFO maintains the promotion of aquaculture as part of their mandate, aquaculture in Canada and British Columbia will have significant influence and power over how the industry is managed and will look in the future. While there is no discussion of removing this from the DFO mandate, this potential for conflict of interest was made blatantly clear and for public knowledge by the Cohen Commission. In addition, the Government of Canada is increasingly aware of First Nations' voices and their responsibility as the federal government to adhere to the Articles of UNDRIP.

Recommendations and Conclusion

The success story of the Broughton Archipelago First Nations encompasses numerous lessons and provides an example for similar situations in British Columbia and elsewhere. The persistence and perseverance of First Nations must not be understated, and was fundamental to the positive outcome. With DRIPA being incorporated into provincial law, the government-to-government style negotiations that happened in Alert Bay should become more commonplace. Recommendations for similar situations can directly be credited to the actions of the Kwikwasut’inuxw/Haxwa’mis, Namgis and Mamalilikulla First Nations, and should include:

  • Ensure negotiations between First Nations and the Province of British Columbia, or the Government of Canada, align with the principles of UNDRIP. Specifically Articles 19 and 32.
  • Ongoing audits and oversight of the DFO by independent bodies, including conflict of interest related to their mandate to promote aquaculture.
  • As in the Steering Committee Recommendations, First Nations must be able to monitor fish farm activities as they see fit to ensure fish farms adhere to agreements to operate.

As the book closes on fish farms in the Broughton Archipelago, the debate continues in much of the Pacific Northwest. There is disagreement on the future of fish farms in the Discovery Islands [22], which are the next area in British Columbia to see negotiations similar to what happened in Alert Bay. In addition there have been recent announcements from the Federal government that they are working to transition open net fish farms out of British Columbia waters and remain committed to their promise of banning them by 2025 [37]. To add further context to this situation it is valuable to look across the border to Washington state where open net fish farms were banned in 2018, citing an undeniable risk to wild salmon populations [38]. Since then the efforts to restore salmon habitat and populations have only increased, with decisions to actively remove dams in the watersheds around Seattle in collaborative projects between various levels of government and First Nations [39]. While there are borders separating people, countries and nations, the effort to restore salmon populations transcends this, and lessons can be learned from the successes of collaborative efforts of passionate and concerned communities.

References

  1. ↑ 1.0 1.1 BC Parks- Broughton Archipelago Provincial Park. (2020). Retrieved November 09, 2020, from http://bcparks.ca/explore/parkpgs/broughton/
  2. ↑ 2.0 2.1 2.2 2.3 Schreiber, D. (2006). First nations, consultation, and the rule of law: Salmon farming and colonialism in british columbia. American Indian Culture and Research Journal, 30(4), 19-40. doi:10.17953/aicr.30.4.t1h10246861230w6
  3. ↑ 3.0 3.1 3.2 3.3 Garner, K., Parfitt, B., Pacific Fisheries Resource Conservation Council, Canadian Electronic Library (Firm), & desLibris - Documents. (2006). First nations, salmon fisheries and the rising importance of conservation. Vancouver, B.C: Pacific Fisheries Resource Conservation Council.
  4. ↑ Heaslip, R. (2008). Monitoring salmon aquaculture waste: The contribution of first nations’ rights, knowledge, and practices in british columbia, canada. Marine Policy, 32(6), 988-996. doi:10.1016/j.marpol.2008.02.002
  5. ↑ 5.00 5.01 5.02 5.03 5.04 5.05 5.06 5.07 5.08 5.09 5.10 5.11 5.12 5.13 5.14 5.15 5.16 5.17 5.18 5.19 Sprout, P. (2018, January 31). Minister of Agriculture’s Advisory Council on Finfish Aquaculture Final Report and Recommendations (Rep.). Retrieved October 22, 2020, from https://www2.gov.bc.ca/assets/gov/farming-natural-resources-and-industry/agriculture-and-seafood/fisheries-and-aquaculture/minister-or-agriculture-s-advisory-council-on-finfish-aquaculture/maacfa-2017-docs/minister_of_agricultures_advisory_council_on_finfish_aquaculture_final_report _and_appendices.pdf
  6. ↑ 6.0 6.1 6.2 6.3 Miller, K. M., Li, S., Kaukinen, K. H., Ginther, N., Hammill, E., Curtis, J. M. R., . . . Farrell, A. P. (2011). Genomic signatures predict migration and spawning failure in wild canadian salmon. Science (American Association for the Advancement of Science), 331(6014), 214-217. doi:10.1126/science.1196901
  7. ↑ 7.00 7.01 7.02 7.03 7.04 7.05 7.06 7.07 7.08 7.09 7.10 7.11 7.12 7.13 7.14 7.15 7.16 7.17 7.18 Brownsey, L., & Chamberlin, R. G., Chief. (2018, November 30). Collaborative solutions for finfish aquaculture farms in the Broughton Area: Steering committee recommendations (Rep.). Retrieved October 15, 2020, from https://news.gov.bc.ca/files/Steering_Committee_Broughton_Recommendations.pdf
  8. ↑ Thomas, M. (2017, November 15). Court orders end to occupation of B.C. fish farm, pending hearing | CBC News. Retrieved December 07, 2020, from https://www.cbc.ca/news/canada/british-columbia/fish-farm-occupation-1.4401678
  9. ↑ 9.0 9.1 9.2 9.3 MacDuffee, M., Price, M. H. H., Rosenberger, A. G., Reynolds, J. D., & English, K. K. (2017). Canada’s wild salmon policy: An assessment of conservation progress in British Columbia. Canadian Journal of Fisheries and Aquatic Sciences, 74(10), 1507-1518. doi:10.1139/cjfas-2017-0127
  10. ↑ 10.0 10.1 10.2 10.3 10.4 10.5 Cohen, B. I., Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River (Canada), & Canadian Government EBook Collection. (2012). The uncertain future of Fraser river sockeye: Volume 1, the sockeye fishery. Ottawa.
  11. ↑ Sockeye returns plunge in B.C., official calls 2019 'extremely challenging' | CBC News. (2019, August 23). Retrieved November 16, 2020, from https://www.cbc.ca/news/canada/british-columbia/sockeye-returns-plunge-in-b-c-official-calls-2019-extremely-challenging-1.5256443
  12. ↑ 12.0 12.1 First Nations Leadership Council. (2020, June 25). FNLC Calls for End to Open-net Pen Salmon Farming in British Columbia [Press release]. Retrieved October 15, 2020, from http://fns.bc.ca/news/fnlc-calls-for-end-to-open-net-pen-salmon-farming-in-british-columbia
  13. ↑ 13.0 13.1 13.2 Government of Canada, F. (2020, February 25). Mandate and role. Retrieved November 16, 2020, from https://www.dfo-mpo.gc.ca/about-notre-sujet/mandate-mandat-eng.htm
  14. ↑ Government of Canada, F. (2019, July 31). Aquaculture legislation and regulatory reform. Retrieved November 16, 2020, from https://www.dfo-mpo.gc.ca/campaign-campagne/aquaculture/legislation-eng.html
  15. ↑ 15.0 15.1 15.2 Protecting wild salmon from piscine reovirus. (2019, October 03). Retrieved November 02, 2020, from https://ecojustice.ca/case/protecting-wild-salmon-from-piscine-reovirus/
  16. ↑ Morton, A. (2020). Meet Alexandra Morton. Retrieved December 02, 2020, from https://www.alexandramorton.ca/meet-alexandra/
  17. ↑ 17.0 17.1 Pacific Salmon Foundation (2020). Retrieved December 07, 2020, from https://www.psf.ca
  18. ↑ 18.0 18.1 Watershed Watch Salmon Society, About Us. (2020, October 20). Retrieved December 07, 2020, from https://watershedwatch.ca/about-us/
  19. ↑ 19.0 19.1 19.2 19.3 19.4 Office of the Auditor General of Canada. (2018). 2018 Spring Reports of the Commissioner of the Environment and Sustainable Development to the Parliament of Canada. Report 1—Salmon Farming (Rep.). (2018). Retrieved October 15, 2020, from: https://www.oag-bvg.gc.ca/internet/English/parl_cesd_201804_01_e_42992.html#hd3b
  20. ↑ 20.0 20.1 20.2 20.3 Goodwin, S.C., Krkosek, M., Reynolds, J.D., & Bateman, A.W. (2020). Bias in self-reported parasite data from the salmon farming industry. Ecological Applications, , e02226-e02226. doi:10.1002/eap.2226
  21. ↑ 21.0 21.1 21.2 21.3 21.4 Di Cicco, E., Ferguson, H. W., Kaukinen, K. H., Schulze, A. D., Li, S., Tabata, A., . . . Miller, K. M. (2018). The same strain of piscine orthoreovirus (PRV-1) is involved in the development of different, but related, diseases in atlantic and pacific salmon in british columbia. Facets (Ottawa), 3(1), 599-641. doi:10.1139/facets-2018-0008
  22. ↑ Morton, A., Routledge, R., Hrushowy, S., Kibenge, M., & Kibenge, F. (2017). The effect of exposure to farmed salmon on piscine orthoreovirus infection and fitness in wild pacific salmon in british columbia, canada. PloS One, 12(12), e0188793-e0188793. doi:10.1371/journal.pone.0188793
  23. ↑ 23.0 23.1 23.2 Hanson, E. (2009). Constitution Act, 1982 Section 35. Retrieved November 08, 2020, from https://indigenousfoundations.arts.ubc.ca/constitution_act_1982_section_35/
  24. ↑ 24.0 24.1 24.2 24.3 Rosenberg, D. M., & Woodward, J. (2015). The tsilhqot'in case: The recognition and affirmation of aboriginal title in canada. University of British Columbia Law Review, 48(3), 943.
  25. ↑ 25.0 25.1 Ministry of Aboriginal Relations and Reconciliation. (2020, June 30). B.C. Declaration on the Rights of Indigenous Peoples Act. Retrieved November 17, 2020, from https://www2.gov.bc.ca/gov/content/governments/indigenous-people/new-relationship/united-nations-declaration-on-the-rights-of-indigenous-peoples
  26. ↑ Bulkan, J. (2020). Lecture on Racialization; representative and intermediary NGO’s. Personal collection of Dr. Bulkan, University of British Columbia, Vancouver, B.C.
  27. ↑ 27.0 27.1 27.2 27.3 Cohen, B. I., Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River (Canada), & Canadian Government EBook Collection. (2012). The uncertain future of Fraser river sockeye: Volume , recommendations – summary - process. Ottawa.
  28. ↑ Omand, G. (2016, August 09). DFO not in conflict of interest for promoting salmon farming: LeBlanc. Retrieved November 16, 2020, from https://www.theglobeandmail.com/news/british-columbia/dfo-not-in-conflict-of-interest-for-promoting-salmon-farming-leblanc/article31335170/
  29. ↑ 29.0 29.1 Cruickshank, A. (2018, September 11). Biologist, First Nation take Fisheries and Oceans Canada to court over farmed-salmon concerns. Retrieved October 16, 2020, from https://www.thestar.com/vancouver/2018/09/10/a-biologist-and-a-first-nation-take-fisheries-and-oceans-canada-to-court-over-farmed-salmon-concerns.html
  30. ↑ 30.0 30.1 Department of Fisheries, Oceans and the Canadian Coast Guard. (2019, March 12). Statement from the Minister of Fisheries, Oceans and the Canadian Coast Guard in regards to the ‘Namgis and Morton Court Decision [Press release]. Retrieved October 22, 2020, from https://www.canada.ca/en/fisheries-oceans/news/2019/03/statement-from-the-minister-of-fisheries-oceans-and-the-canadian-coast-guard-in-regards-to-the-namgis-and-morton-court-decision.html
  31. ↑ 31.0 31.1 31.2 Killoran, M., Denstedt, S., Ignasiak, M., Duncanson, S., Sutherland, S., & McPeak, K. (2020, July 31). Appeal Court finds fresh duty to consult triggered by evolving science identifying novel adverse impacts. Retrieved October 15, 2020, from https://www.lexology.com/library/detail.aspx?g=b3be759b-bd89-4c84-9af6-a9f6607f7510
  32. ↑ 32.0 32.1 32.2 32.3 Gilpin, E. (2019, March 15). The Dzawada'enuxw First Nation files lawsuit against Canada on fish farms dispute. Retrieved October 20, 2020, from https://www.nationalobserver.com/2019/01/10/news/dzawadaenuxw-first-nation-files-lawsuit-against-canada-fish-farms-dispute
  33. ↑ Petersen, H. (2017, October 12). Premier John Horgan talks salmon farms in Alert Bay. Retrieved November 16, 2020, from https://www.northislandgazette.com/news/premier-john-horgan-visits-alert-bay-to-talk-salmon-farms/
  34. ↑ 34.0 34.1 34.2 34.3 Donaldson, D., Hon., Popham, L., Hon., Fraser, S., Hon., Chamberlin, R., Chief, Svanik, D., & Sumner, R. (2018, June 27). Letter of understanding regarding a government-to-government process to address finfish aquaculture in the Broughton Area, including recommendations on Provincial Tenure Replacement Decisions [Letter]. British Columbia, Canada. Retrieved October 12, 2020, from https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/broughton_nations_and_bc_letter_of_understanding_june_2018_final_signed.pdf
  35. ↑ Salmon farm decommission in B.C.'s Broughton on track, says premier | CBC News. (2019, September 20). Retrieved November 16, 2020, from https://www.cbc.ca/news/canada/british-columbia/salmon-farm-decommission-1.5290677
  36. ↑ Larsen, K. (2020, September 23). 101 First Nations in B.C. demand removal of open-net salmon farms near Campbell River | CBC News. Retrieved November 19, 2020, from https://www.cbc.ca/news/canada/british-columbia/101-first-nations-in-b-c-demand-removal-of-open-net-salmon-farms-near-campbell-river-1.5733840
  37. ↑ B.C.'s open-net salmon farms on the way out, but replacement systems may differ by region | CBC News. (2020, November 12). Retrieved December 08, 2020, from https://www.cbc.ca/news/canada/british-columbia/b-c-s-open-net-salmon-farms-on-the-way-out-but-replacement-systems-may-differ-by-region-1.5799521
  38. ↑ Ryan, J. (2018, March 26). After 3 Decades, Washington State Bans Atlantic Salmon Farms. Retrieved December 08, 2020, from https://www.npr.org/sections/thesalt/2018/03/26/597019406/after-three-decades-washington-state-bans-atlantic-salmon-farms
  39. ↑ Mapes, L. (2020, August 05). Another Washington dam removal - and 37 more miles of salmon habitat restored. Retrieved December 08, 2020, from https://www.seattletimes.com/seattle-news/environment/another-washington-dam-removal-and-37-more-miles-of-salmon-habitat-restored/


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