Farmed Fish Story - A Whopper of a Controversy

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Aquacultural Revolution: The scientific case for changing salmon farming

VIDEO
http://www.watershed-watch.org/programs/aquaculture.html
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The Science and Politics of impact of Salmon Farms - join the conversation
http://alexandramorton.typepad.com/

http://alexandramorton.typepad.com/
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Farmed Fish Story - A Whopper of a Controversy
http://www.turtleisland.org/discussion/viewtopic.php?p=1983#p1983

More about First Nations and Fish Farms . . .
http://www.turtleisland.org/news/news-fishfarms.htm

[admin]

Join these upcoming rallies for wild salmon - brought to you by the Wild
Salmon Circle!

Sept 16 at noon in front of the DFO offices at Burrard and Pender - join
us for a pre-rally leading up to a major rally on October 3

Big rally at the Vancouver Art Gallery on October 3 at 1 PM, uniting BC
residents of all backgrounds - nature lovers, First Nations, sport and
commercial fishermen, students, children, parents - in a strategic
citizen movement to end open-net salmon farming in BC. Guest speakers,
info and actions you can take to join the Wild Salmon Circle and help
save BC's wild salmon!
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Video: Fisheries Minister in Vancouver for Emergency Meeting; Chief
Chamberlin Shut Out

http://saveourrivers.ca/video-library-mainmenu-29/423-shea-video-2

Watch this new short video on the emergency meeting held by Fisheries
Minister Gail Shea in Vancouver this past Friday to discuss the Fraser
River Sockeye collapse - her first trip to Vancouver since the crisis
hit. The exclusive, invitation-only meeting left out some important
voices, including Chief Bob Chamberlin - Chair of the First Nations
Leadership Council-mandated Aquaculture Working Group - who was turned
away at the door. I spoke with both Chief Chamberlin and Watershed
Watch's Dr. Craig Orr - apparently one of the few people in the meeting
who raised the issue of salmon farms and their possible connection to
the Fraser crisis. Dr. Orr describes here some of the latest science
being done on the subject and reveals what went on inside the meeting.
He also rebuts the erroneous contentions by industry and government as
to why salmon farms can't be connected to the sockeye collapse.

If you haven't seen it yet, check out my recent video on DFO's
delegation to the world's biggest fish farming trade show, Aquanor, in
Trondheim, Norway:

http://saveourrivers.ca/video-library-mainmenu-29/414-aquanor

Also see . . .
http://www.turtleisland.org/discussion/viewtopic.php?p=10432#p10432

[admin]

Wild salmon in a fish farm?

Alexandra Morton Charges Marine Harvest with illegal possession of wild salmon

http://alexandramorton.typepad.com

If government is not going to apply the laws of Canada to fish farms, it is up to the people to do so.

Port Hardy, September 15, 2009
biologist Alexandra Morton laid charges under the federal Fisheries Act against fish farm giant Marine Harvest Canada Inc. for illegal possession of wild juvenile salmon from an endangered stock.

On June 16, 2009, hundreds of small salmon were seen spilling onto a dock in Port McNeill during a transfer of live Atlantic salmon brood stock from the fish farm vessel M.V. Orca Warrior into tanks on a truck. The vessel’s registered owner is Marine Harvest.

“When I received photos of the incident minutes later,” says Morton, “I was really surprised the fish lying on the road were young pink salmon, I could not understand what were they doing in Marine Harvest’s boat.”

“Marine Harvest emailed stating that the young wild salmon had come from the Potts Bay fish farm, just west of Glendale River in Knights Inlet,” says Morton. “They were apparently in the farm salmon pens and were scooped up with the Atlantic salmon. We have no idea how many pink salmon ended up going down the highway in the tanks on the truck.”

When Morton took her boat to the Potts Bay fish farm she saw large schools of pink salmon leaping inside the pens. “While millions of tax payers dollars and environmental donations have been spent to protect the Glendale River pink salmon from fish farms, last fall was the lowest return yet. These are the offspring from that generation and far from safe, they are right in the farm and in their fish packers,” said Morton.

Morton has published 15 scientific papers on juvenile pink salmon.

Morton’s lawyer, Jeffery Jones corresponded with DFO for 6 weeks about this incident but the Department still has not taken any action.

“I have received many reports over the years of herring, black cod and wild salmon in farm pens. The escaped Atlantic salmon that fishermen bring me often have wild fish in their stomachs. Are Norwegian farm salmon fattening up on wild BC fish? What happens to the wild fish when the nets are pulled? What happened to the pink salmon that may have been in the truck? DFO has often charged commercial and sport fishermen with illegal possession to protect wild fish and why wont they charge fish farms for the same violation,” said Morton.

Morton asks that anyone with information on wild fish in fish farms to contact her at http://www.adopt-a-fry.org . 18,000 people and counting have signed a letter on this website saying the laws of Canada must be applied to fish farms.
http://alexandramorton.typepad.com/

Alexandra Morton 250-973-2306, 250-949-7086 (cell)
Alexandra Morton wildorca@island.net

[admin]

Another escape from a fish farm
sparks more outrage and a demand by an outspoken First Nation leader for no more expansion of the industry in British Columbia . . .

News and Comment
by Tehaliwaskenhas - Bob Kennedy ( Onyota'a:ka / Oneida )
Copyright

http://www.turtleisland.org/news/news-fishfarms.htm
October 24th, 2009

A First Nation leader in BC is infuriated by yet another escape of Atlantic salmon from a fish farm - threatening wild stock salmon - again!

Chief Bob Chamberlin says the Kwicksutaineuk Ah-kwa-mish First Nation is appalled and bitterly disgusted at the recently reported escape of 40,000 Atlantic Salmon from the Port Elizabeth Fish Farm in the Broughton Archipelago.

After speaking with Clare Backman of Marine Harvest Canada (MHC), it was learned that during the removal of dead fish from a "natural fish kill" a tear of the net pen was discovered. Initial estimates of a few dozen fish escaping quickly became 40,000 fish. The emergency response to attempt the recapture of the escaped Atlantics did not actually begin until at least 24 hours after the escape was known.

"It's safe to assume that the chances of recovering a significant portion of this massive escape is slim to none at this point" says Chief Chamberlin.

"There are serious questions of disease, overstocking of net-pens, adequacy of emergency response plans and also follow up investigation and reporting . . . even though Marine Harvest has agreed to let Musgamagw-Tsawataineuk Tribal Council staff question Marine Harvest Staff, we remain skeptical and anticipate a party-line being towed to safeguard employment."

A news release also pointed out that the Department of Fisheries and Oceans is set to assume Regulatory Authority in February 2010.

The Kwicksutaineuk Ah-kwa-mish First Nation is calling on the Provincial Government "to publicly state that there will be no expansions of Fish Farms tenures and capacity leading up to DFO's assuming control of the Fish Farm Industry. Further to this, the DFO need to engage with First Nations immediately to develop the new court ordered Fish Farm regulations. To date there has been no direction coming from Gail Shea, Minister of Fisheries and Oceans to act on this fast approaching deadline."
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Calling on DFO Minister Shea, End the Silence
PRESS RELEASE October 27, 2009

The UBCIC calls upon the Federal Department of Fisheries and Oceans (DFO) Minister Gail Shea to get on with the pressing work at hand of developing new Fish Farm regulations with First Nations. The court mandated deadline of February 10, 2010 is fast approaching and the silence from Minister Shea’s office is completely unacceptable.

The BC First Nations Fisheries Council and First Nation Aquaculture Working Group are ready to begin this critical work and are supported by Union of BC Indian Chiefs (UBCIC), First Nations Summit and the BC Assembly of First Nations resolutions. The proposed developmental framework features engagement of First Nations that have Fish Farms actively operating within their territories.

The recent escape of an estimated 40,000 Atlantic salmon, from a Marine Harvest Canada Fish Farm at Port Elizabeth in the Broughton Archipelago certainly underlines the great urgency for closed containment technology to be quickly embraced, developed and implemented. This is consistent with the Special Legislative Committee on Sustainable Aquaculture and the Pacific Salmon Forums final reports.

Furthermore, the UBCIC insists that Minister Shea immediately convey to the BC Ministry of Agriculture and Lands that any provincial expansions on existing licenses or issuance of new Fish Farms will effectively poison the work environment in developing these new Fish Farm Regulations.

Grand Chief Stewart Phillip, UBCIC President stated “The deafening silence from Minister Shea, at a time when leadership is most needed, is very upsetting. First Nations are organized, mandated and ready to address this extremely time-sensitive issue, it appears Minister Shea is not.”

For further comment contact:
Chief Bob Chamberlin, UBCIC Secretary-Treasurer
First Nation Aquaculture Working Group Chair
Cell: (778) 988 9282
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Also of interest on this topic . . .

Huge salmon farm escape reinforces urgent need for action on closed containment

October 23, 2009

SOINTULA, B.C. – Just days after the Norwegian government reported a 380 percent increase in escapes from open net-cage fish farms over this time last year, Marine Harvest Canada has admitted to another mass escape of approximately 40,000 farmed salmon in the beleaguered Broughton Archipelago.

“We knew something was up when I received a call this morning from a gillnetter who’d been fishing north of Malcolm Island and catching numerous Atlantic salmon,” said Will Soltau, Living Oceans Society’s Salmon Farm Campaign Local Coordinator. “Everything pointed to yet another large escape from an open net-cage farm.”

This morning Marine Harvest reported the Atlantics had escaped on October 21 from their open net-cage farm at Port Elizabeth near Gilford Island. The fish were close to harvest weight, an average of 4.7 kilos.

“This demonstrates once again the urgent need to transition all open net-cage farms to closed containment systems,” said Soltau. “This will be a major financial loss to the company and another blow to the health of our marine ecosystems and wild salmon populations. Closed containment could have prevented both.”

Living Oceans Society and its allies in the Coastal Alliance for Aquaculture Reform (CAAR) continue to urge the federal and provincial governments to support a closed containment innovation and development fund and facilitate a transition of all open net-cages to closed systems. Investment in new green technology innovations will not only foster job creation in B.C. but eliminate the ever-present threat of escapes from open net cage systems.

Three Norwegian corporations own 90 percent of all farms in the province. One of them, Grieg Seafoods, lost over 132,000 fish in an escape from a Norwegian farm this year. Escaped farm salmon have already been found in more than 80 B.C. river systems and populations of feral juvenile Atlantic salmon have been discovered at three locations in B.C.

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For more information contact:

Will Soltau
Salmon Farm Campaign Local Coordinator
Living Oceans Society
Phone: 250-973-6520
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OPEN LETTER: UBCIC Resolution no. 2009-36, BC First Nation’s Statement of Solidarity on Aquaculture

October 20, 2009

Honourable Gail Shea
Department of Fisheries and Oceans Canada

Honourable Steve Thomson
Ministry of Agriculture and Lands

Dear Ministers

Re: OPEN LETTER: UBCIC resolution no. 2009-36, BC First Nation’s Statement of Solidarity on Aquaculture

We are writing with respect to Union of BC Indian Chiefs (UBCIC) resolution no.2009-36, BC First Nation’s Statement of Solidarity on Aquaculture which was carried at the Union of BC Indian Chiefs Annual General Assembly on September 18, 2009 (enclosed).

The UBCIC Chiefs-in-Assembly have affirmed and endorsed the principles as articulated in the Statement of Solidarity on Aquaculture (UBCIC resolution no.2009-35, enclosed). Accordingly, the Chiefs-in-Assembly call upon senior officials from Ministry of Agriculture and Lands and the Department of Fisheries and Oceans Canada to meet with the First Nations Fisheries Council and the Aquaculture Working Group immediately to discuss the proposed change of jurisdiction of the aquaculture industry from the Province to the Federal Government and ensure that First Nations are full participants on a government-to-government level in these jurisdictional discussions.

Given the timeline provided by the Supreme Court of BC in the Morton it is imperative that Federal and Provincial officials meet with the First Nation leadership and engage on this issue as agreed upon in previous meetings between the First Nations Fisheries Council, Ministry of Agriculture and Lands and Pacific Region Department of Fisheries.

If there are any questions or comments please contact Chief Bob Chamberlain, Secretary-Treasurer at (778) 988-9282 or Maureen Grant, Policy Analyst at mgrant@ubcic.bc.ca or at (604)684-0231.

On behalf of the UNION OF BC INDIAN CHIEFS

[Original Signed]

Grand Chief Stewart Phillip
President

Chief William Charlie
Vice-President

Chief Robert Chamberlin
Secretary-Treasurer

UNION OF B.C. INDIAN CHIEFS
40TH ANNIVERSARY ANNUAL GENERAL ASSEMBLY
SEPTEMBER 16TH – 18TH, 2009
HARRISON HOT SPRINGS, B.C.

Resolution no. 2009-36

RE: B.C. First Nations Statement of Jurisdiction on Aquaculture

WHEREAS First Nations in British Columbia have constitutionally protected title and rights that have been affirmed by the Supreme Court of Canada and by international conventions and local and international treaties, including the United Nations Declaration on the Rights of Indigenous Peoples;

WHEREAS through the New Relationship, the First Nations-Federal Crown Political Accord on the Recognition and Implementation of Title and Rights, and the Transformative Change Accord, the federal and provincial governments have agreed to work toward the implementation of a government-to-government relationship with First Nations based on respect, recognition and accommodation of title and rights;

WHEREAS the judgment in the Morton case resulted in a ruling by the B.C. Supreme Court that “fish which are reared in finfish farms on the coast of British Columbia fall under the jurisdiction of Parliament under s. 91(12) of the Constitution Act 1867, and the purpose and legal effect of the specific provincial legislation… was the management and regulation of a fishery” and “the petitioners had demonstrated that the impugned provincial legislation… was ultra vires the provincial crown and thus invalid. I ordered that the present provincial regulatory scheme with respect to finfish farming in British Columbia would continue for a further 12 months, to permit the Federal Government to enact legislation for the regulation of finfish farming…”

WHEREAS as a result of the Morton case, management of the aquaculture industry will require significant reform in order to balance the management responsibilities and jurisdictions of both the federal and provincial governments. Although it is unclear whether the federal government will assume a more active role in aquaculture management in B.C., what is clear is that B.C. First Nations must be actively involved in any legislative, policy and/or decision-making process to reform the aquaculture industry in B.C.;

WHEREAS Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples provides that:

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

WHEREAS Article 27 of the United Nations Declaration on the Rights of Indigenous Peoples provides that, “States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

WHEREAS Article 29 of the United Nations Declaration on the Rights of Indigenous Peoples provides that:

1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.
2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.
3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.

WHEREAS Article 32 of the United Nations Declaration on the Rights of Indigenous Peoples provides that:

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

WHEREAS the principles of reconciliation, respect and recognition of First Nations title and rights must be paramount in any legislative, policy or decision-making process regarding changes to the aquaculture industry. At a minimum, the honour of the Crown requires both the federal and provincial governments to minimize any infringement to title and rights, and to engage in appropriate consultation and accommodation processes;

WHEREAS the Aquaculture Working Group was established, by resolution of the Union of BC Indian Chiefs, First Nations Summit and the BC Assembly of First Nations to engage with the province of British Columbia to address and advocate for First Nations title and rights issues that have a bearing on the management and regulation of the aquaculture industry; and

WHEREAS the First Nations Fisheries Council has been empowered by First Nations leadership in B.C. to implement the B.C. First Nations Fisheries Action Plan and part of this task includes working to advance title and rights, to build capacity, and to help facilitate discussions with the federal and provincial governments regarding the recognition of First Nations inherent rights with respect to the management of fisheries and aquatic resources.

THEREFORE BE IT RESOLVED that the Chiefs-in-Assembly call upon the First Nations Fisheries Council and the Aquaculture Working Group to meet both senior headquarter officials from the Ministry of Agriculture and Lands and the Department of Fisheries and Oceans Canada surrounding the proposed change of jurisdiction over the aquaculture industry resulting from the Morton decision and ensure that First Nations are full participants on a government-to-government level in the jurisdictional discussions.

Moved: Chief Sidney Douglas, Cheam First Nation
Seconded: Chief Dalton Silver, Sumas First Nation
Disposition: Carried
Date: September 18, 2009

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NDP CALLS FOR AN INDEPENDENT JUDICIAL INQUIRY ON SALMON CRISIS
Fri 23 Oct 2009

The federal New Democrats are calling for an immediate independent judicial inquiry into the catastrophic collapse of the Fraser River sockeye run to ensure that west coast salmon don’t go the way of Atlantic cod.

http://peterjulian.ndp.ca/sites/default/files/Letter%20to%20PM%20Harper_Independent%20judicial%20inquiry%20on%20salmon%20crisis.%20October%2023%202009.ENG_.pdf


NDP Western Fisheries Critic Peter Julian and Fin Donnelly, NDP candidate in the New Westminster-Coquitlam by-election, say the inquiry is urgently needed to ensure the long-term viability of west coast salmon.

“This is an emergency that requires immediate attention, but the Harper Conservatives are turning a blind eye,” said Donnelly, who has dedicated most of his working life to protecting wild salmon.

“The worst thing is that this isn’t an emergency that happened overnight. It’s been building for a long time and successive Liberal and Conservative governments have let it spiral out of control.”

Julian pointed out that the Conservatives promised to initiate an inquiry while in opposition, and made it a key plank in their 2006 platform.

“They broke their promise to make protecting wild salmon a top priority, and now we’re in serious trouble,” he said. “We need action from this government, not broken promises.”

The NDP call for an inquiry has broad support from scientists and conservation groups. Renowned fish biologist Alexandra Morton said “we would still have the great North Atlantic cod stocks if a judicial inquiry had been called before they crossed the line of no return. The Fraser sockeye collapse pattern is so remarkably specific it could be deciphered if politics were swept aside. It is up to us. If we want the Fraser sockeye this inquiry is essential.”

Julian and Donnelly said the government should strike the inquiry immediately and produce a binding public report within six months.

Donnelly, who has been executive director of the Rivershed Society of BC for the past 13 years, says the wild salmon crisis will be a key issue in the November 9th by-election.

BACKGROUNDER

CATASTROPHIC COLLAPSE OF FRASER RIVER SOCKEYE

Issue: Early in 2009, the Department of Fisheries and Oceans estimated that between 10.6 and 13 million salmon would migrate this year to the Fraser River in British Columbia. Scientists and experts were shocked when ONLY 1.7 to 1.3 million salmon made the journey this summer, a mere 12% of what was expected.

The shocking disappearance of nine million sockeye salmon, in addition to the ensuing closure of the sockeye fisheries, highlights a crisis of unprecedented scale which is dramatically affecting the way of life and the livelihoods of West coast communities, first nations, recreational anglers, commercial fisheries and businesses connected to salmon fishing.

This crisis is on par with the collapse of the Atlantic Cod stocks, which devastated the East Coast economy.

The Harper Conservatives: have ignored the crisis, and broken their 2006 promise to “Establish an independent judicial inquiry to determine the cause of the collapse of the sockeye salmon stocks on the Fraser River”.

New Democrats: say it is essential to put an inquiry into place immediately to ensure the long term viability of wild salmon on the west coast.

What would the inquiry do? Created under the Federal Inquiry Act, the inquiry would combine a fact finding mandate with a policy prescription mandate. New Democrats say its binding recommendations should be presented within six months.

The inquiry would:
• Consult with scientists and stakeholders,
• Determine what went wrong with this year’s sockeye run,
• Present a public report with binding solutions within six months.

[admin]

Yes, it's true there is strong opposition by First Nations to fish farms on Canada's west coast.

However, Turtle Island Native Network reports on some First Nation support for the industry . . .

News and Comment
by Tehaliwaskenhas - Bob Kennedy ( Onyota'a:ka / Oneida )
Copyright
Turtle Island Native Network
http://www.turtleisland.org/news/news-fishfarms.htm

November 5th, 2009

A recent agreement in British Columbia proves my point that
There Are No Absolutes when it comes to First Nations interests and issues.

In this case, the topic is Fish Farms.

Although the loudest voice heard on this issue is the opposition to the fish farms on Canada's west coast, there are First Nations who support them too.

For example, just several days after public critcism from the Union of BC Indian Chiefs and Chief Bob Chamberlin, Kwicksutaineuk Ah-kwa-mish First Nation because of the escape of 40,000 Atlantic Salmon from the Port Elizabeth Fish Farm in the Broughton Archipelago, Marine Harvest Canada (MHC), announced it signed an agreement with Kwakiutl First Nation.

While it means "economic capacity building and employment and training opportunities" for the Kwakiutl people, it also means the Kwakiutl First Nation agrees to "support MHC operations" - four salmon farms, two freshwater hatcheries, and a processing plant - in their traditional territory.

Kwakiutl First Nations Chief Verna Chartrand explained, "In 2000 we signed an Agreement with Omega Seafood, which later became Marine Harvest Canada. . . . But due to company mergers and changes in Band leadership we stopped communicating. The Agreement was really only paper and didn't help nurture a relationship between us, so we met to discuss our needs. By making some changes to the existing agreement, we have now created benefits for both company and Nation. . . Our community looks forward to the economic opportunities that will come from this . . . We have also satisfied ourselves that Marine Harvest operates sustainably in our traditional territory and will keep doing its utmost to protect the marine environment that is so important to us."

Many of the Kwakiutl First Nation's 650 members live in Fort Rupert on northern Vancouver Island near Port Hardy.

The Nation's traditional territory covers an area of 197,000 ha from the Nahwitti River at the north to the Nimpkish River at the south.

More about the Kwakiutl First Nation
http://www.kwakiutl.bc.ca/

More about First Nations and fish farms . . .
http://www.turtleisland.org/news/news-fishfarms.htm

[admin]

Rally During the Olympic Games to Save Wild Salmon
February 2010
http://www.turtleisland.org/discussion/viewtopic.php?p=10986#p10986
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Union of BC Indian Chiefs Supports 29 Hour Fast of the Musgamagw-Tsawataineuk Tribal Council
Media Advisory February 12, 2010

(Coast Salish Territory/Vancouver, BC) – The Executive of the Union of BC Indian Chiefs will be participating in a 29 hour fast supporting the Musgamagw Tsawataineuk Tribal Council’s (MTTC) opposition to fish farm tenures in the Broughton Archipelago.

“There are 29 fish farm tenures in the territories of the Musgamagw Tsawataineuk,” said Chief Bob Chamberlin, Chair of the MTTC and Secretary-Treasurer of the Union of BC Indian Chiefs. “The 29 hour fast reflects the 29 fish farm tenures in our territories.”

The fast will begin at 5:00 a.m. on Monday, February 15th at the Union of BC Indian Chiefs (500 - 342 Water Street, Vancouver, Canada). The fast will end on February 16th, the day when Team Canada faces off with Team Norway in Men’s Ice Hockey.

The MTTC have extended an invitation to King Harald V of Norway to meet with the Chiefs of the MTTC and UBCIC during his time at the 2010 Winter Olympics in Vancouver.

Chief Chamberlin stated “The Chiefs want to discuss with King Harald the conduct of certain Norwegian Fish Farm Companies and how their business operations are not in accodance with the United Nations’ Declaration on the Rights of Indigenous Peoples which the Norwegian Government voting Yes to at the UN General Assembly.”

Date: Tuesday, February 16th, 2010
Place: Union of BC Indian Chiefs Office, Suite 500 - 342 Water Street, Vancouver BC
Time: 10:00 AM
Who: Grand Chief Stewart Phillip, President – UBCIC; Chief Willie Charlie, Vice-President – UBCIC; Chief Bob Chamberlin, Secretary-Treasurer – UBCIC; Hereditary Chiefs; and Friends

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Media inquires:
Chief Bob Chamberlin
Office: 604-684-0231 Cell: 778-988-9282

BACKGROUNDER ATTACHED: MTTC Open Letter to King Harald V of Norway


====================

February 10, 2010

King Harald V
The Royal Palace
Karl Johan Gate
Oslo, Norway

Your Excellency:

As Chief of Kwicksutaineuk/Ah-Kwa-Mish First Nation and Chair of the Musgamagw Tsawataineuk Tribal Council, I once again write to you to Humbly and Respectfully request a audience with yourself and the Chiefs of the Musgamagw Tsawataineuk Tribal Council and Hereditary Chiefs during your time in Vancouver, BC during the XLIV Olympics.

The Musgamagw Tsawataineuk Tribal Council represents the Kwicksutaineuk/ Ah-Kwa-Mish First Nation; Dzawada'enuxw First Nation; Gwawaenuk Tribe; Namgis First Nation, who support each other politically, traditionally and historically.

We would like the opportunity to discuss with you our collective concerns in relationship to the Norwegian Aquaculture Companies, Marine Harvest and Cermaq, and how they conduct business within our Traditional Territories.

What I think is important and of special note to your Royal Highness is that these companies are operating in opposition to the Government of Norway’s support of the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

The Articles of Note from the UNDRIP are as follows;

Article 25
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26
1. Indigenous peoples have the right to the lands, territories and resources, which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.


Article 27
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 29
1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.

Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.


During the Spring of 2009 I visited Oslo, Norway and attended the Shareholders AGM of Marine Harvest and Cermaq and presented a document which gave expression to each of the items noted above. I informed the Shareholders of their contradictory actions/conduct as it relates to the UNDRIP and urged them to embrace the direction presented of the Musgamagw-Tsawataineuk Peoples.

If there was no will to embrace this direction, I suggested they inform the Norwegian Government and the People of Norway of their disregard for International Declarations made by the Government of Norway and work to have Norway to change it’s Vote at the UN accordingly.

All we ask for is that the river systems and Inlets which produce our Wild Salmon that has sustained the Musgamagw-Tsawataineuk people since the beginning of time, be shown the very same respect the Norwegian Government demonstrates in the safeguarding the Wild Salmon of Norway by the establishment of the of the National Salmon Fjords.

I appreciate this request is of short notice but I sincerely hope you can understand the urgency of the Musgamagw-Tsawataineuk People to meet with you. As Royal Representative of the Norwegian People I hope you can offer the Norwegian people, Industry and Government guidance in this International matter and establish a respectful relationship with the First Nations with whom I am representing.

Gilakasla



Bob Chamberlin, Chair
Musgamagw-Tsawataineuk Tribal Council

Cc.
Jens Stoltenberg, Prime Minister, Norway
Åse Aulie Michelet, CEO, Marine Harvest
Mr. Tore Valderhaug, CEO, Cermaq

[admin]

"Prior to this Agreement, the Tsimshian First Nation had been opposed to traditional net cage fish farming due to its negative impact on the environment. Our technology offers a solution to the issues facing this industry and mitigates the environmental impacts associated with conventional net cage fish farming practices."

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AgriMarine and Lax Kw'alaams Band Sign Memorandum of Understanding

VANCOUVER, BRITISH COLUMBIA, Feb 16, 2010

AgriMarine Holdings Inc. /quotes/comstock/11v!fsh (CA:FSH 0.23, +0.03, +12.50%) (the "Company" or "AgriMarine") and the Lax Kw'alaams First Nation are pleased to announce that they have signed an important Memorandum of Understanding (the "Agreement").

The Agreement proposes to investigate the possibility of developing closed containment cultured salmon operations utilizing AgriMarine technology in Band territory on the North Coast of British Columbia. AgriMarine's proprietary technology for culturing salmon and other finfish in floating solid wall closed containment systems allows for a controlled rearing water environment and production of sustainable seafood.

"First Nations participation is a key element of our strategy in British Columbia", said Richard Buchanan, President and CEO of AgriMarine. "Prior to this Agreement, the Tsimshian First Nation had been opposed to traditional net cage fish farming due to its negative impact on the environment. Our technology offers a solution to the issues facing this industry and mitigates the environmental impacts associated with conventional net cage fish farming practices."

Commenting on the Agreement, Chief Councilor of the Lax Kw'alaams Band, Gary Reece, said: "We are pleased to be able to move forward with investigating the feasibility of this project and we are optimistic that the promise of this unique technology can have valuable applications on our territory, and beyond".

By working within the spirit of this Agreement, the Company and the First Nation endeavor to demonstrate that AgriMarine's system offers a responsible, sustainable aquaculture alternative, resulting in a minimal environmental footprint while providing important economic development for the region.

Under the terms of the Memorandum, AgriMarine will investigate potential sites within the Band territory for placing closed containment technology systems for culturing fish with the assistance of the Lax Kw'alaams Band.

The Lax Kw'alaams Band will take the lead in undertaking the Environmental Assessment and applying for all required licensing and permitting processes for both tenure and operating permits. However, there is a current moratorium in place regarding the issuance of any new fish farm licenses until Fisheries and Oceans Canada (DFO) can assume control of regulating salmon farms at the end of this current year.

Upon the successful completion of the Environmental Assessment and permitting stage, AgriMarine will design, build and install closed containment rearing facilities in the Traditional Territory of the Lax Kw'alaams Band.

Economic Impact

The Tsimshian First Nation communities are located in British Columbia and Alaska, around Terrace and Prince Rupert and the southernmost corner of Alaska on Annette Island (the word "Tsimshian" translates to "people inside the Skeena River"). Salmon continues to be a staple food for the Tsimshian First Nation; however, large-scale commercial fishing, coupled with warmer waters due to climate change, have resulted in a decline of salmon returns in the Fraser and Skeena Rivers, and their tributaries. Salmon is being managed by a communal quota system, although the window of opportunity for commercial fishermen is small.

By committing to the first stage of this partnership, the Lax Kw'alaams hope to revive its fisheries-based economy.

About AgriMarine Holdings Inc.

AgriMarine Holdings Inc., through its wholly owned subsidiary, AgriMarine Industries Inc., has developed proprietary technology for the rearing of salmon and other finfish in floating solid wall closed containment systems that allows for total control of the rearing water environment. AgriMarine's technology resolves many of the environmental issues created by present net cage rearing practices worldwide and permits the installation of fish production systems in close proximity to consumer markets. Through AgriMarine Industries' Asian subsidiary, Benxi Agrimarine, the first commercial tank farm is currently being installed in China to produce large steelhead trout. The Company is also examining applications of its technology for tuna and other warm water species.

Forward-Looking Information

Information set forth in this news release may involve forward-looking statements. Forward-looking statements are statements that relate to future, not past, events. In this context, forward-looking statements often address a company's expected future business and financial performance, and often contain words such as "anticipate", "believe", "plan", "estimate", "expect", and "intend", statements that an action or event "may", "might", "could", "should", or "will" be taken or occur, or other similar expressions. Forward-looking statements in this news release include information relating to the services to be provided by Investor Cubed. By their nature, forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements, or other future events, to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Such factors include, among others, the following risks: risks associated with the marketing and sale of securities; the need for additional financing; reliance on key personnel; the potential for conflicts of interest among certain officers or directors with certain other projects; and the volatility of common share price and volume. Forward-looking statements are made based on management's beliefs, estimates and opinions on the date that statements are made and the Company undertakes no obligation to update forward looking statements if these beliefs, estimates and opinions or other circumstances should change. Investors are cautioned against attributing undue certainty to forward-looking statements.

THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS NEWS RELEASE REPRESENTS THE

EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS NEWS RELEASE AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, IT DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED IN ACCORDANCE WITH APPLICABLE SECURITIES LEGISLATION.

Neither TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.

Contacts:
AgriMarine Holdings Inc.
Richard Buchanan
President and CEO
604-484-5761 ext. 31
rbb@agrimarine.com
www.agrimarine.com
Lax Kw'alaams Band
Gary Reece
Chief Councilor
250-625-3293

Alexia Helgason
Media Relations and Corporate Communications
604-728-4407
alexia.helgason@gmail.com

[admin]

Pure Salmon Campaign, Canadian First Nations Leaders Urge Norway to Protect British Columbia's Wild Salmon, Other Iconic Wildlife

Salmon farming documentary released online

VANCOUVER, Feb. 16, 2010

At an event coinciding with the Norway - Canada Olympic hockey game, members of the Pure Salmon Campaign and several of British Columbia's First Nations chiefs today called for the removal of Norwegian-owned salmon farms from Canadian waters. These open-net pens continue to degrade regional marine ecosystems.

Norwegian firms, including Marine Harvest and Cermaq, dominate world production of farmed salmon and operate in British Columbia. The Pure Salmon Campaign recently sent a petition -- with more than 12,000 signatures -- to the CEOs of both companies demanding adoption of more environmentally-friendly salmon farming practices.

In addition to the Marine Harvest and Cermaq petition, the Pure Salmon Campaign and its allies -- including the Wilderness Tourism Association and the Wild Salmon Circle -- today delivered a letter to Norway's King Harald at the Norwegian Consulate in Vancouver. The letter asks the king to protect Norway's reputation as an environmental leader by relocating those salmon farms that threaten wild salmon populations.

"More than 170 people from Canada, Chile, Scotland, Ireland, Germany and Norway are appealing to the King of Norway to help stop the killing of wild fish by Norwegian-owned salmon farms," said Don Staniford, Global Coordinator, Pure Salmon Campaign. "We hope that King Harald -- who will be attending the Olympics as a spectator -- can take the time to persuade Norwegian companies to move farms out of the path of migrating wild salmon and invest in technology, such as closed containment systems, to protect wild fish from sea lice, mass escapes and infectious diseases."

Closed containment technology includes fiberglass, cement tanks and heavy gauge plastic bags that physically separate farmed fish from wild fish. This is one technology option that creates impermeable barriers that can prevent the spread of diseases and parasites and eliminates escapes and discharges of wastes into the ocean. Eliminating these problems would help protect fragile marine ecosystems while also inevitably improving productivity and profits for producers of farmed salmon.

"Norwegian-owned salmon farms operating in our traditional territorial waters are killing wild salmon and strangling the lifeblood of our whole culture," said Chief Bob Chamberlin, Chairman of the Musgamagw-Tsawataineuk Tribal Council. "There are 29 fish farm tenures in the territory of the Musgamagw-Tsawataineuk and these operations are in opposition to the Government of Norway's support of the UN Declaration on the Rights of Indigenous People. Norway is a proud nation, but Norwegian salmon farming companies are bringing Norway into international disrepute."

A 29-hour fast, to draw attention to how governments and industry have interacted with First Nations on salmon farming, was held at the Union of British Columbia Indian Chiefs (UBCIC) office in Vancouver. Each hour represented one of the 29 fish farm tenures in the territory of the Musgamagw-Tsawataineuk. According to the UBCIC Web site, the Canadian Ministry of Environment, Lands and Parks grants tenure on aquatic lands for fish farms (including waste discharge permits). These permits can be for up to 30 years. The fast began yesterday at 5 a.m. PST and concluded today at 10 a.m. PST.

"Farmed Salmon Exposed: The Global Reach of the Norwegian Salmon Farming Industry" can now be watched in full at www.puresalmon.org and at www.farmedsalmonexposed.org.

The documentary, produced by Canadian filmmaker Damien Gillis, shows the far-reaching impact of Norwegian salmon farming operations in British Columbia and Chile. "Farmed Salmon Exposed" has been accepted to the Delray Beach Film Festival and the Environmental Film Festival in the Nation's Capital. The film has been praised by Jean-Michel Cousteau and University of British Columbia professor Daniel Pauly.

To read the letter to King Harald signed by Alexandra Morton, David Suzuki, Kurt Oddekalv, Damien Gillis, Rafe Mair, Chief Bob Chamberlin, Grand Chief Stewart Phillip and over 170 signatories from around the world, go to www.puresalmon.org/TEMPKingNorwayLetterJan292010.pdf.

To view the petition to Marine Harvest and Cermaq, go to http://www.thepetitionsite.com/takeaction/674505931.

The Pure Salmon Campaign is a global project with partners in the United States, Canada, Europe, Australia and Chile all working to improve the way salmon is produced. To learn more, go to www.puresalmon.org

[admin]

DFO faces lawsuit over proposed aquaculture expansion legal

Environmental groups threaten lawsuit over unlawful approval of fish farm expansion

February 22, 2010

VANCOUVER - The federal government is facing a lawsuit for their failure
to assess the environmental impacts of a proposed fish farm expansion
that would create one of the biggest salmon farms in British Columbia.

Ecojustice, on behalf of Living Oceans Society, has announced that they
will pursue legal action against Fisheries and Oceans Canada (DFO)
unless they trigger a proper environmental assessment of the proposed
expansion of the Doyle Island fish farm, which is seeking to increase
production levels by 37 percent. DFO approved the expansion neglecting
their mandatory duties under the Canadian Environmental Assessment Act.
To make matters worse, the exemption from assessment was made on January
25, 2010, just one day before the Supreme Court of British Columbia
ordered a restriction on new fish farm licenses and expansion projects
and three days before the B.C. government announced a province-wide
moratorium.

"B.C. is facing the collapse of wild salmon runs and has issued a
moratorium on fish farm expansion," said Will Soltau of Living Oceans
Society.

"DFO should be doing everything they can to protect our wild salmon and
the people who depend on them. That must include proper assessment of
salmon farm expansion proposals."

In approving the expansion of the Doyle Island facility near Port Hardy,
DFO used an outdated assessment that only looked at the facility's
current production of 2,550 tonnes of salmon. The groups are calling on
DFO to undertake a proper environmental assessment of the impacts
expanding production levels to 3,500 tonnes will have as is mandated by
the Canadian Environmental Assessment Act.

"DFO has already explicitly recognized that expansions like this require
approval under the Fisheries Act," said Ecojustice staff lawyer Judah
Harrison. "This, in itself, should trigger an environmental assessment,
yet DFO has refused to do so."

Justice Hinkson of the Supreme Court of British Columbia ordered a
restriction on the issuance of both new fish farm licences and the
expansion of existing fish farms on January 26, 2010. Two days after
this ruling, Agriculture and Lands Minister Steve Thomson announced that
the Province of B.C. has placed a moratorium on the issuance of new
finfish aquaculture licences.

The federal government has also launched a Commission of Inquiry into
the 2009 collapse of the Fraser River sockeye salmon. The Cohen
Commission is set to begin in March and will examine a range of factors
contributing to the collapse including the impact of salmon farming on
wild stocks.

[admin]

Turtle Island Native Network is reporting on a real breakthrough for environmentalists
in their fight to get government information on fish health and sea lice related to controversial fish farms . . .

The BC Government has been ordered by the Office of the BC Information and Privacy Commissioner
to make public the information it gathers on the health of farmed fish . . .
- - -

Sea Lice and Disease Records Now Public

The public will finally get to see to the scale of sea lice and disease infestation on BC fish farms thanks to a successful four-year Freedom of Information battle led by environmental groups T. Buck Suzuki Environmental Foundation and Ecojustice. In a March 1 Order, BC’s Freedom of Information and Privacy Commissioner decided the Ministry of Agriculture and Lands could no longer conceal records of sea lice infestations, based on information gathered during visits to salmon farms.

FOR IMMEDIATE RELEASE

Public gains long-awaited access to sea lice records

Environmental groups end fish farm secrecy with Freedom of Information win

Mar 01, 2010

VANCOUVER – The public will finally get to see to the scale of sea lice and disease infestation on BC fish farms thanks to a successful four-year Freedom of Information battle led by environmental groups T. Buck Suzuki Environmental Foundation and Ecojustice. In a March 1 Order, BC’s Freedom of Information and Privacy Commissioner decided the Ministry of Agriculture and Lands could no longer conceal records of sea lice infestations, based on information gathered during visits to salmon farms.

The decision rejects the assertions of fish farm companies that release of the data would harm proprietary commercial interests. The decision acknowledges that release of the records may harm the reputations of fish farms but held that the Act does not protect companies from the public relations fallout that results from the public knowing the true nature of the companies’ activities and impacts on the environment. The decision also held that the Ministry could not give into the threats of companies to simply withhold information, noting that the Ministry does have regulatory powers it could exercise if it chose.

The decision means greater independent scientific inquiry and public oversight into the highly contentious practice of open-net salmon farming along BC’s West Coast. With a high incidence of sea lice and disease on farms, several scientists have predicted that the industry will lead to the extinction of some wild salmon runs in the Broughton Archipelago.

The Freedom of Information decision was a long-awaited victory for the T. Buck Suzuki Environmental Foundation and Ecojustice. The Ministry has repeatedly refused to hand over the information, first requested in 2004, arguing that any observations made by government staff during the farm visits were subject to secrecy laws governing commercial information.

Christensen said the stance was a sign of dangerously skewed priorities. “The province has been compromising public interest by protecting these companies. The government should be defenders of the public’s right to know, not the agents shielding companies from scrutiny of environmental performance.”

Unfortunately, transparency into fish farming will continue to be a problem even with improved access to government records,” said David Lane, executive director of T.Buck Suzuki Environmental Foundation. “Although we now have access to government audit data, the real site-by-site sea lice and disease monitoring data is collected by the BC Salmon Farmers’ Association, not the government. Without access to this information, the public and the government have no idea if parasite or disease levels are dangerously high on a particular farm and the government has no ability to enforce its Sea Lice Management Strategy.”

“This is just the beginning,” said Lane.” The whole process of salmon farm reporting has to change so the public, not the companies are in control.”

For more information, please contact:

Randy Christensen, Lawyer, Ecojustice (604) 685-5618 ext. 234 David Lane, Executive Director, T.Buck Suzuki Environmental Foundation (604) 519-3635 cell: 604-258-8119
- - -

Order F10-06
MINISTRY OF AGRICULTURE AND LANDS
Michael McEvoy, Adjudicator

March 1, 2010

Quicklaw Cite: [2010] B.C.I.P.C.D. No. 9
CanLII Cite : 2010 BCIPC 9

Document URL: http://www.oipc.bc.ca/orders/2010/OrderF10-06.pdf

Summary: The applicant requested information from the Ministry relating to information gathered from fish farms under its Fish Health Audit and Surveillance Program. The Ministry refused the request on the basis the fish farms supplied the information in confidence and disclosure could subject the fish farms to various harms if disclosed. Disclosure of the information is ordered. Fish carcasses turned over to the Ministry for testing did not constitute the supply of information. The fish farms did not supply other information explicitly or implicitly in confidence and in the event it did, the Ministry failed to prove that its disclosure could reasonably be expected to cause harm.
Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 21(1)(a)(ii), 21(1)(b), 21(1)(c)(i), 21(1)(c)(ii),21(1)(c)(iii), s. 25(1)(a) and s. 25(1)(b); Aquaculture Regulation 78/2002.
Authorities Considered: B.C.: Order 02-38, [2002] B.C.I.P.C.D. No. 38; Order 01-20, [2001] B.C.I.P.C.D. No. 21; Order No. 56-1995, [1995] B.C.I.P.C.D. No. 29; Order No. 26-1994, [1994] B.C.I.P.C.D. No. 29; Order 03-02, [2002] B.C.I.P.C.D. No. 2; Order 04-06, [2004] B.C.I.P.C.D. No. 6, Order F05-29, [2005] B.C.I.P.C.D. No. 39; Order F08-21 [2008] B.C.I.P.C.D. No. 39; Order 03-05, [2003] B.C.I.P.C.D. No. 5; Order 00-10, [2000] B.C.I.P.C.D. No. 11; Order No. 22-1994, [1994] B.C.I.P.C.D. No. 25; Order 01-52, [2001] B.C.I.P.C.D. No. 56; Ont.: Order P-454, [1993] O.I.P.C. No. 112; Order PO-2528, [2006] O.I.P.C. No. 210.
Cases Considered: Fletcher Challenge Canada Ltd. v. British Columbia (Information and Privacy Commissioner) [1996] B.C.J. No. 505, BCSC; Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773.
Order F10-06 - Office of the Information & Privacy Commissioner for BC
2
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1.0 INTRODUCTION
[1] This case concerns a request under the Freedom of Information and Protection of Privacy Act (“FIPPA”) for random audits that the Ministry of Agriculture and Lands (“Ministry”) performs on aquaculture facilities, more commonly known as fish farms.

[2] The TBuck Suzuki Environmental Foundation (“applicant‟) sets out its request for information in its initial submission as follows:1

1. Sea lice monitoring data (including but not limited to lice abundance, weight, species and monitoring dates and corresponding name [Ministry] reference, or land file number and location) collected by employees of the provincial government under the Sea Lice Monitoring and Audit Program in the Broughton Archipelago (Health Zone 3-3). Specifically sought is an electronic database that was used to generate tables and graphs on sea lice abundance by species and size given to [the applicant] by provincial employees on October, 17, 2003, labelled “Audit Data”. We request this data from January 2002 to present with a complete listing of database field headings or descriptions (entities and attributes) for the database where the above-described data is kept; and
2. Monitoring results for pathogens (including name and dates of occurrence) with the corresponding name and location of the salmon farming operation (or [Ministry] reference or land file number) with a complete listing of database field headings or descriptions (entities and attributes) for the database where the above-described data is kept. This data is collected by provincial government officials under the Fish Health Audit and Surveillance Program.
[3] The applicant cited s. 25 of FIPPA as a basis for disclosure of the information. The Ministry provided copies of certain reports, which the applicant said did not contain what it asked for. The applicant complained to this Office that the Ministry failed to perform its duty to assist it under s. 6 of FIPPA. During mediation, the Ministry said it intended to withhold the records under s. 21. The Ministry also indicated, that if the database required severing because of an order under s. 21, this would unreasonably interfere with its operations under s. 4(2) of FIPPA.
[4] Mediation did not resolve the matter, so an inquiry was held under Part 5 of FIPPA.
1 Applicant‟s initial submission, para. 2.
Order F10-06 - Office of the Information & Privacy Commissioner for BC
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[5] The applicant and the public body agreed that the applicant‟s request for review respecting ss. 4(2) and 6(2) of FIPPA would not be considered in this inquiry unless:
(a) the Adjudicator issues an order deciding that s. 21 applies to a portion, but not all, of the records;
(b) no application for judicial review has been brought within the time specified under s. 59(1) of FIPPA; and
(c) the applicant delivers to this Office‟s Registrar of Inquiries (“Registrar”), within 45 days (as defined in FIPPA) after the date of the Adjudicator‟s order, a written request that the Adjudicator consider and decide the application of ss. 4(2) and 6(2).
[6] With regard to the last two sentences of request 1, the Amended Portfolio Officer‟s Fact Report that accompanied the notice for this inquiry states that:
The applicant has agreed that this section of the request is not in issue in this inquiry because the database is not in the custody or control of the public body.
[7] Therefore this Order will only consider those matters related to the sea lice data request within the Ministry‟s custody or control.
[8] This Office invited submissions from the applicant, the Ministry, eleven third-party aquaculture companies and an intervener, the BC Salmon Farmers Association (“Association”). The Ministry, applicant and Association responded and four of the third parties did so: Grieg Seafood Company (“Grieg Seafood”), Mainstream Canada (“Mainstream”), Marine Harvest Canada Inc. (“Marine Harvest”) and Creative Salmon Company (“Creative Salmon”).
2.0 ISSUES
[9] The issues in this inquiry are as follows:
1. Does s. 25(1)(a) or (b) apply to the records?
2. Does s. 21 require the Ministry to withhold information?
[10] FIPPA is silent with regard to which party has the burden of proof in s. 25 matters, leaving each party responsible for submitting arguments and evidence to support its position.
[11] Under s. 57(1) of FIPPA, the Ministry has the burden of proof regarding s. 21.
Order F10-06 - Office of the Information & Privacy Commissioner for BC
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3.0 DISCUSSION
[12] 3.1 Background––The raising of salmon in ocean pens off British Columbia‟s coastal waters has been a matter of public discussion for over a decade. In 1995, the Minister of Environment, Lands and Parks and the Minister of Agriculture, Fisheries and Food asked the provincial Environmental Assessment Office to conduct a review (“Review”) of methods used in the regulation and management of aquaculture operations. The Review recommended measures including “setting high standards for farm operations based on the best available knowledge and rigorously enforcing the implementation of those standards”.2 The Review noted that the approach to disease management was reactive and that more precise information was needed on diseases that affected fish stocks to determine which ones should be identified and reported by farmers. The Review stated:3

For these reasons a comprehensive surveillance program is essential, in order to define all diseases that should be reportable. The program should be carried out by government under legislation (Animal Disease Control Act) with the participation of First Nations, industry, community fishers and wild fishery organizations. Currently, salmon farmers are required to take reasonable precautions to control disease. Government should set enforceable standards to establish disease prevention and management protocols, minimum health record requirements, outbreak management protocols, drug use standards and disease reporting requirements.
[13] The Review further stated that the provincial government:
…should monitor the adequacy of current management techniques through continuous collection and analysis of standardized data.4
[14] The provincial government developed a response to the Review designed to improve monitoring and regulation of fish disease. This included the creation of the Ministry‟s Fish Health Program (“Program”).5 The list of Program objectives includes monitoring, reporting on, and educating the public in relation to fish health, “including in relation to diseases and risks to consumers”.6 The Program seeks to encourage fish farms to minimize risks to farmed and wild salmon. The cornerstone of the Program is the Fish Health Management Plan (“FHMP”) requirement. A fish farm must have an FHMP to operate7 and the Association states that an FHMP is a condition of an aquaculture licence in BC.8
2 Exhibit A, Sheppard affidavit, p. 4
3 Exhibit A, Sheppard affidavit, p. 8.
4 Exhibit A, Sheppard affidavit, p. 13.
5 Sheppard affidavit, para. 5.
6 Ministry‟s initial submission, para. 4.08.
7 Sheppard affidavit, para. 8.
8 Association's submission, p. 2.
Order F10-06 - Office of the Information & Privacy Commissioner for BC
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[15] The FHMP requires that each farm operator record fish health data, including mortality and “fish health event information”9 as well as sea lice reports. The fish farms are required, as a condition of their licence,10 to report this information to the Association which then enters the data into its own computer database. I note here that this information, entered into the Association‟s database, is not the subject of the applicant‟s request or this inquiry.
[16] Pursuant to a Letter of Understanding (“LOU”) between the Ministry and the Association, the Association is required to report the database information to the Ministry in aggregate form, on a quarterly basis for general health event data, and, in the case of sea lice, on a monthly basis. This aggregate data, which does not disclose individual fish farm statistics, is publicly disclosed.

[17] The Ministry has established, as part of the Program, the Fish Health Audit and Surveillance Program (“HASP”). The purpose of HASP is to monitor the health of marine-based salmon and to audit information the Association collects and makes public in order to improve public confidence in the industry.11 In this regard, Program staff in the Ministry, who are bio-technicians and veterinarians, conduct random audits of fish farms to ensure that each farm establishes and complies with its FHMP.12 Staff visit fish farms to review logs and collect information concerning fish size, mortality rates, feed records, medication and environmental condition information. Program staff also collect fish carcasses at audited farms so that Ministry veterinarians at the Ministry‟s Animal Health Centre in Abbotsford can test them. Either a fish farm diver or an airlift pump system retrieves carcasses from the water for testing.13

[18] If a farm does not meet requirements of its FHMP
…then corrective measures are communicated by the Ministry Fish Health Veterinarians to the farm manager and attending Veterinarian. If corrective measures are not taken in due time, then Ministry Fisheries Inspectors of the Fisheries and Aquaculture Licensing and Compliance Branch are requested to become involved in enforcement dialogue. If not corrected, those inspectors will be asked to facilitate compliance. Ultimately, fines and/or non-renewal of an aquaculture license may arise yet this degree of enforcement is rarely, if ever, required.14
9 Sheppard affidavit, para. 10.
10 Exhibit F, Ackerman affidavit, para. 2.2.
11 Exhibit E, Ackerman affidavit, p. 2.
12 Sheppard affidavit, para. 8.
13 Sheppard affidavit, Reply submission, para. 4.
14 Sheppard affidavit, para. 8.
Order F10-06 - Office of the Information & Privacy Commissioner for BC
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[19] In addition to functions carried out by Ministry veterinarians and technicians, inspectors with the Ministry‟s Licensing and Compliance Branch (“inspectors”) perform functions that include reviewing a fish farm‟s “best management practice” plan, pursuant to the Aquaculture Regulation.15
[20] 3.2 Disputed Records––The Ministry compiled the disputed information pursuant to HASP. The Ministry‟s submission lists an extensive number of records as the type responsive to the applicant‟s request.16 As the Ministry is the public body with custody and control of these records, I rely on this list, attached as Appendix A to this Order, in determining whether records must be withheld or disclosed under s. 21 of FIPPA. To more easily analyze the documents, I have numbered them under four headings rather than the two provided by the Ministry.17
[21] The Ministry states the following with respect to underlined information in Appendix A:
The Information that has been underlined…was derived from the fish samples that were supplied in confidence to the Ministry by fish farms. The sea lice information in the Database was also derived from fish samples that the fish farms supplied to the Ministry.18
[22] Besides the Ministry and the applicant, Mainstream was the only other party to detail what it says was the “information” it provided to the Ministry. Mainstream‟s list of information that it says the applicant seeks mirrors the Ministry‟s with one exception. Mainstream‟s list does not refer to the information in Appendix A beginning under heading 3 “Miscellaneous data” and ending with “Farm diagnosis” (just prior to the “Virology heading”). In this regard, I rely on the Ministry‟s list as the basis for my Order, including its representation that the information in the just-mentioned part of heading 3 derived from fish samples the fish farms provided the Ministry.
[23] 3.3 Public Interest Disclosure––If s. 25(1) applies in this case, it overrides any other exceptions to the disclosure of the requested records. Section 25 reads as follows:
15 B.C. Reg. 78/2002, deposited April 19, 2002.
16 Ministry‟s initial submission, para. 4.02.
17 Number 1 has been assigned to all information under the Fish Mortality Information heading; number 2 has been assigned to all information under the Fish Health Events/Actions heading; number 3 has been assigned to all information under the Miscellaneous data heading; and number 4 has been assigned to all information under the Sea Lice Monitoring and Auditing Data heading.
18 Ministry‟s initial submission, para. 4.05.
Order F10-06 - Office of the Information & Privacy Commissioner for BC
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Information must be disclosed if in the public interest
25(1) Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information
(a) about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or
(b) the disclosure of which is, for any other reason, clearly in the public interest.
(2) Subsection (1) applies despite any other provision of this Act.
[24] The applicant argues that the mere existence of the Ministry‟s monitoring efforts is evidence of the risk of harm of salmon farming. The applicant relies on the affidavit evidence of Dr. Craig Orr, executive director of the Watershed Salmon Watch Society, who states that the requested information
would be very useful to the scientific community in identifying local trends in sea lice production and in correlating such data to local sea lice infestation levels identified through sampling of wild juvenile salmon.19
[25] The applicant submits this matter meets the urgency test under s. 25 because:
… we are in a critical window where sea lice incidence from salmon farms could result in the extirpation of genetically unique salmon runs. This is a matter of current and intense public interest as reflected in the ongoing public debate in the April 24, 2008 article “Killer Lice” published in the Globe and Mail (attached as Appendix B). This article describes the view of many scientists that sea lice from fish farms caused a “97% population crash” of pink salmon in the Broughton Archipelago. This view is disputed by the farms. Given the environmental interests at stake, the immediate release of this data essential to help clarify this ongoing and urgent debate.20
[26] The applicant goes on to state that the inability of independent scientists to review the requested data is fuelling this contentious debate. It submits that the other compelling reason for disclosing the information is that it is “open to question” whether the Ministry is capable of exercising proper regulatory oversight over this industry. In the applicant‟s view, the Ministry exhibits signs of being a “captured agency” which has prioritized industry interests rather than the public interest. The applicant contends that the Ministry‟s refusal to exercise its clear legal authority to require the reporting of information it claims is currently
19 Applicant‟s reply submission, para. 56.
20 Applicant‟s reply submission, para. 58.
Order F10-06 - Office of the Information & Privacy Commissioner for BC
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submitted on a “voluntary” basis demonstrates its potentially compromised oversight capabilities.21
[27] The Ministry argues the applicant‟s claim of a “97% population crash” is “simply not supported by the evidence” and that the likely source of that claim has been “vigorously challenged”.22 It points to an article from a publication entitled „Reviews of Fisheries Science‟ to counter the applicant‟s claim and notes that many scientists in the field endorsed this article.23
[28] The Ministry submits it would be wrong to assume such a population decline had a causal connection with aquaculture operations and that fluctuations in pink salmon returns from year to year are common. The Ministry also speculates that the applicant‟s claim of a population crash may have come from a Fishery and Oceans “recurring report” in which a bar chart illustrates a sharp decline in pink salmon in 2002 following a record high return in 2000.
[29] Grieg Seafoods submits that Dr. Orr is not a “dispassionate academic” but rather someone advocating a particular position against the salmon industry.
[30] A number of orders have discussed the principles to be applied under s. 25 and I have applied those principles here.24
[31] The requirement for public disclosure under s. 25 does not apply to the facts of this case. Section 25 is reserved for matters of urgency where circumstances of clear gravity and present significance exist to require immediate disclosure of information. The issues underlying this case have been matters of public debate for many years, a point evident from the Review. It may be, as the applicant argues, that release of these records would contribute to this ongoing discussion. However, there is no evidence that elevates these matters to meet the criteria of gravity and temporal urgency under s. 25. The applicant‟s assertion that it might “be very useful” for independent scientists to review the data contained in the records falls short of the urgent and compelling circumstances required for public disclosure under s. 25(1)(b). Similarly, I do not accept the applicant‟s contention that what it views as the potentially compromised oversight capabilities of the Ministry are, without more, sufficient to engage the disclosure requirements of s. 25(1)(b). I find that s. 25 does not require disclosure of the disputed records.
[32] 3.4 Third-Party Interests––Section 21(1) of FIPPA protects certain third-party business interests from harm through the disclosure of information under FIPPA. It sets out a three-part test for determining whether disclosure is
21 Applicant‟s reply submission, paras. 60 and 61.
22 Ministry‟s further reply submission, paras. 2 and 3.
23 Ministry‟s further reply submission, para. 4.
24 See for example Order 02-38, [2002] B.C.I.P.C.D. No. 38; Order 01-20, [2001] B.C.I.P.C.D. No. 21.
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prohibited, all three elements of which must be established. Section 21(1) reads as follows:
21(1) The head of a public body must refuse to disclose to an applicant information
(a) that would reveal
(i) trade secrets of a third party, or
(ii) commercial, financial, labour relations, scientific or technical information of or about a third party,
(b) that is supplied, implicitly or explicitly, in confidence, and
(c) the disclosure of which could reasonably be expected to
(i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party,
(ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied,
(iii) result in undue financial loss or gain to any person or organization, or
(iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.
[33] I have carefully considered the submissions of all parties in respect of s. 21 and I refer to the most pertinent of those below.
Section 21(1)(a)
[34] The Ministry argues, under the first branch of the test, that the information requested is of a scientific, technical and commercial nature. Mainstream and Grieg Seafoods submit that the information is of a scientific and technical character, while the other third parties and intervener did not address the issue. The applicant rejects the assertion that the records contain commercial information and submits that certain kinds of information, such as the dates of sampling tests, do not fall under any of the definitions of s. 21(1)(a)(i) and (ii). The applicant acknowledges, however, that some “testing” information could properly be characterized as technical or scientific in nature.
[35] Commissioner Flaherty stated in Order No. 56-1995 that the words “scientific” and “technical” would “…surely include information that is the result of scientific environmental sampling…”25 Ontario Order P-454,26 referring to legislation similar to our own, stated that “technical information is information
25 [1995] B.C.I.P.C.D. No. 29.
26 [1993] O.I.P.C. No. 112.
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belonging to an organized field of knowledge which would fall under the general categories of applied sciences or mechanical arts.”
[36] Most of the requested information relates to the Ministry‟s veterinary testing of randomly-sampled fish carcasses. In addition, items listed under heading 2 in Appendix A relate to treatment programs administered by professionals, i.e., veterinarians. The other items under heading 1 also relate to the sampling of fish for scientific evaluation and information such as the date of the sampling is a matter necessarily incidental to this. I find the information contained in the records is of a “scientific” or “technical” nature as described in s. 21(1)(a)(ii). Given these findings, it is not necessary for me to consider the Ministry‟s submission that the records contain commercial information.
Section 21(1)(b)
[37] The second branch of s. 21 requires me to consider whether the fish farms supplied the disputed information and, if so, whether that information was supplied implicitly or explicitly in confidence.
Was “information” supplied?
[38] I understand the Ministry to say that the fish farms were responsible for generating information under headings 1 and 2 of Appendix A and then conveying it to the Ministry. The Ministry says the exceptions to this are the “Farm Codes” found in heading 1 (the Ministry assigned these numbers) and recorded observations by the Ministry found “in the drop down comments boxes,” also found under heading 1 of Appendix A. The Ministry describes the number of those recorded observations as “minimal.”27
[39] Mainstream submits that it supplied the information under headings 1 and 2 to the Ministry, either through verbal communications during meetings with the Ministry or by its staff granting the Ministry access to its records on site.
[40] With respect to the information under headings 3 and 4 the Ministry says that much of the information concerns the Ministry‟s analysis of fish carcasses. The Ministry maintains that this is information the fish farms supplied because they supplied the carcasses on which the Ministry‟s analysis is based. It cites Ontario Order PO-252828 in support of the proposition “that information is [sic] derived from samples is protected by s. 21 and that there is an inextricable link between data and samples from which that data is derived, such that the non-disclosure of the latter necessarily means the non-disclosure of the former.”29 The Ministry further submits:
27 Ministry‟s reply submission, para. 3.
28 [2006] O.I.P.C. No. 210.
29 Ministry‟s initial submission, para. 4.38.
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… that the Information that was generated in the [Ministry] lab but was derived from samples supplied by fish farms is still information that was “supplied” for the purposes of s. 21 of the Act. The focus of this part of section 21 is to protect the information of non-government parties. Without the initial provision of the fish samples, the Ministry would not have such information. An analogy can be made with cases where statistics are prepared based on sales data supplied (see Order No. 00-10).30
[41] Mainstream says that the information “within the [Ministry‟s] database” under heading 3 from the topics entitled “Virology” through to “Histology” is derived from fish carcasses the Ministry collected at its fish farm.31
[42] With specific reference to the information under heading 4 in Appendix A, the Ministry explains that the sea lice audit program “verifies industry reported results and provides government with information concerning sea lice levels on British Columbia salmon farms.”32 The Ministry refers to its “Fish Health Program” document in respect of procedures for the sea lice audit that, in essence, is similar to the process described by Mainstream below.
This on-farm, split sample, lice counting procedure and the examination of records represents a compliance audit. The results of the pooled counts, also submitted for the monthly reporting by the farm, are recorded as the audit “snapshot” of the farm.33
[43] The Ministry says “no significant difference” was found in comparing the sea lice counts of the Ministry and fish farms.
[44] The Ministry goes on to argue that the fish farms voluntarily provided the fish samples subject to testing. I will not summarize these arguments here because they are not relevant to the question of whether information was supplied.
[45] With respect to the information under heading 4, Mainstream argues that
… the sea lice and pathogen monitoring data at issue in this inquiry is raw, immutable scientific and technical data, and therefore was “supplied” to the Public Body as required by s. 21(1)(b). We submit that the information derived from fish carcasses and from sea lice removed from live fish as described in paragraph 11 above is “supplied” in the true sense of the word by Mainstream. The data would not be available to the Public Body unless Mainstream provided the fish and carcasses from which the information was extracted. We further submit that even if the Commissioner finds that some of the sea lice and pathogen information sought was in fact “created” or “generated” by the Public Body, the nature of the database (i.e. the use
30 Ministry‟s initial submission, para. 4.39.
31 Mainstream‟s initial submission, para. 10.
32 Ministry‟s further reply submission, para. 1.
33 Exhibit F, Ackerman affidavit, p. 31.
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of Farm Codes and BCF Numbers discussed above) would inferentially disclose that the underlying information was supplied to the Public Body by Mainstream. Indeed, that is what the Applicant is seeking here: the sea lice and pathogen data for the specific farms listed in the database.34
[46] Mainstream also explains the collection of information in respect of sea lice as follows:35
In regards to supply method … the information is derived entirely from sea lice samples that staff from Mainstream and the Public Body handled jointly during sea lice audits. During these audits, 60 live fish are gathered from 3 pens. Mainstream staff assesses the sea lice found on 30 of those fish, and the Public Body‟s staff assesses the sea lice found on the other 30. Both groups make notes of the information and the Public Body ultimately inputs this information into the database… .
[47] The applicant analyzes the supply issue by first categorizing the responsive information under four headings:
Administrative information: “year and quarter” fields; “farm codes”; “case id number” fields; “date of sampling”; “date submitted”; “number of fish sampled”; “sampled by”; “way bill”; “lab number”; “date received”; “tissue samples collected”; “tests conducted”; “pool ID”; and “fish ID”.
Observations: “site inventory”; “total mortalities for dive”; “mortality breakdown” (and subheadings); and all the subheadings under “fish number” heading in the “information derived from fish carcasses”; and “open dialogue box”.
Obtained information: the headings under “Fish Health Events/Actions” and “Health Events” in the “information collected on site” grouping and under the “information derived from fish carcasses” grouping the “farm diagnosis”36 subheading.
Testing information: “virus results”; “pool ID” and subheadings; “bacterial identification” (and subheadings); “histology summaries”; and “morphology”.
[48] The applicant then submits:
The general rule for determining if information was “supplied” by the Third Party is that “the information must be the same as that originally provided by the affected person.”37
…
34 Mainstream‟s initial submission, para. 36.
35 Mainstream‟s initial submission, para. 11.
36 The applicant states that, although it is not entirely clear from the Ministry‟s submission, it assumes this field relates to the diagnosis given by veterinarians working for the fish farms.
37 The applicant refers here to Order No. 26-1994, [1994] B.C.I.P.C.D. No. 29.
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[The applicant] submits that the information described above as “Administrative” information (e.g., farm codes, dates of visits, date of sampling, lab number, etc.) [was] not supplied by the Third Parties. This is data that was generated and recorded by the Ministry as part of its functioning.
The information described as “Observations” was not supplied by the Third Parties. This is information that was generated and recorded by the Ministry and was not provided in any way by the Third Parties.
The information described as “Testing” information above was not supplied by the Third Parties. The testing data was generated and recorded by the Ministry (or labs under contract with the Ministry). The Third Parties and the Ministry attempt to equate the provision of a fish carcass with the provision of the testing results generated in a laboratory.
The fish carcasses provided are not the “same information” that exists in the database. Moreover not only is a fish carcass not the same information in the database, it is not “information” at all under the Act.
The “information rights” created under s. 4 of the Act are to “records” existing in the custody and control of public bodies. “Record” is a defined term under the Act:
“record” includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by graphic, electronic, mechanical or other means, but does not include a computer program or any other mechanism that produces records;
[49] The applicant argues that a fish carcass is not a “record” under FIPPA and that attempts to equate animal tissue with a “record” should be rejected:
“Information” is defined as “knowledge obtained from investigation, study, or instruction”.38 The records existing in the database of the Ministry meet this definition. The fish carcasses do not. The fish carcasses are the thing studied, but not the resulting knowledge.
The Ministry and some of the Third Parties (e.g., Mainstream) refer to orders and the intention of the Act to protect “immutable” information (e.g. Orders 01-39, F05-29 and F06-20). “Immutable” is defined as “not capable of or susceptible to change.”39 [The applicant] submits that the relationship between the fish carcass from the farms and information in the Ministry database cannot possibly be described as “immutable”.
38 The applicant‟s reference here is to the definition of “information” from Merriam Webster dictionary, found online at: http://www.m-w.com.
39 The applicant again cites the Merriam Webster dictionary.
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Analysis of the supply issue
[50] I will assess the disputed information found under headings 1-4 in Appendix A and determine whether it satisfies the test of being information supplied under s. 21(1)(b).
Heading 1
[51] I understand the Ministry‟s position to be that heading 1 information was generated by the fish farm and then turned over to the Ministry. Mainstream says that either it turns over its written fish mortality records or it provides the same information verbally. The applicant‟s position is that Ministry staff observe and then categorize matters such as fish mortality during audit visits. The applicant also suggests that site inventory numbers are based on Ministry staff observation.
[52] Many previous orders have considered and applied the term “supply”. Commissioner Loukidelis stated the following in Order 03-02:40
A good number of Federal Court of Canada decisions have dealt with the “supplied” requirement in s. 20(1)(b). Although s. 20(1) of the Federal Act differs from s. 21(1) of the British Columbia, the supply requirement in both statutes is similar enough to warrant review of the federal decisions.
The well-known decision of the Federal Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture) (1989), 53 D.L.R. (4th) 246, [1989] 1 F.C.J. No. 615, clearly established, for the purposes of the Federal Act, that the phrase “supplied to a government institution” in s. 20(1)(b) means exactly that. In that case, a reporter and a consumer researcher had made an access request for federal government meat inspection team audit reports on meat packing plants located in a specific part of the country. The third party, Canada Packers Inc., resisted disclosure because these reports were, it contended, negative and could have serious effects in an industry with little consumer loyalty and consistently low profit margins. MacGuigan J. (as he then was) said the following at para. 12 (F.C.J.):
Paragraph 20(1)(b) relates not to all confidential information but only to that which has been “supplied to a government institution by a third party”. Apart from the employee and volume information which the respondent intends to withhold, none of the information contained in the reports has been supplied by the appellant. The reports are, rather, judgments made by government inspectors on what they have themselves observed. In my view no other reasonable interpretation is possible, either of this paragraph or of the facts, and therefore paragraph 20(1)(b) is irrelevant in the cases at bar.
40 [2003] B.C.I.P.C.D. No. 2, paras. 71 and 72.
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[53] The evidence of those parties present during the fish farm audit process satisfies me that almost all information in dispute under heading 1 was supplied by the third parties to the Ministry, thereby satisfying s. 21(1)(b) of FIPPA. I am satisfied this information was generated by the fish farms and was supplied to the Ministry either in writing or verbally. The minor exception to this are the “minimal” number of comments which the Ministry says its officials made and which appear in the “drop down box” under heading 1. These are the kinds of judgments referred to in Canada Packers Inc. which fall outside of information supplied by a third party to a public body.
Heading 2
[54] The applicant concedes the Ministry “obtained” these records from the fish farms. The evidence confirms that the fish farms created and kept these records and then turned them over to the Ministry‟s audit personnel. I therefore have no difficulty concluding the information in these records was “supplied” by the third parties under s. 21(1)(b) of FIPPA.
Heading 3
[55] The Ministry veterinarians or bio-technicians generated and recorded all of the information under this heading, including descriptions of fish samples, details connected with the testing of the samples (such as the sample lab number and dates of acquisition) and the test results themselves.
[56] Mainstream argues, however, that the information would not be available if Mainstream did not supply the fish carcasses to the Ministry in the first place. In my view, this „but for‟ contention does not assist the Ministry and the third parties because, even if it were true, it does not mean a fish farm has supplied “information” to the public body as contemplated by s. 21(1)(b). Rather, the issue is what the fish farms did supply the Ministry and could it be properly defined as information.
[57] What the third parties supplied the Ministry were dead fish.
[58] The Miriam Webster Dictionary definition of “information” provided by the applicant41 states as follows:
…knowledge obtained from investigation, study, or instruction.
[59] In this case, Ministry veterinarians derived the knowledge, such as that concerning bacteriology, from the study of the dead fish. The veterinarians recorded that knowledge and it is contained in the records under heading 3. As the applicant points out, the fish carcasses are the things studied, but not the resulting knowledge.
41 Applicant‟s reply submission, para. 26.
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[60] For this reason, it simply cannot be the case that the conveyance of deceased fish by fish farm operators to the Ministry constitutes or equates to a supply of “information” under the second branch of the test of s. 21(1)(b).
[61] It is also important to note that information rights, created under s. 4 of FIPPA, are for access to “records” in the custody and control of public bodies. The definition of record, again, relates to “information” in that it refers to things such as books, documents and papers “on which information is recorded or stored by…electronic…or other means”. It would distort the words of s. 21(1)(b) beyond recognition to find that fish provided to the Ministry by the third parties constitutes the supply of “information” under the section.
[62] I do not accept the Ministry‟s argument that this case is analogous to Order 00-10.42 That case involved beer companies providing sales data to the Liquor Distribution Branch. Sales data clearly constitute information. In addition, by virtue of s. 36 of the Liquor Distribution Act, the conveyance of the sales data was deemed to be supplied in confidence under s. 21 of FIPPA.
[63] The Ministry‟s reference to Ontario Order PO-252843 also does not assist it. The reasoning of the passage the Ministry cited is premised on the existence of immutable “information”, something which dead fish are not.
[64] For all of these reasons, I find that the information under heading 3 was not supplied pursuant to s. 21(1)(b) of FIPPA .
Heading 4
[65] The information under heading 4 concerns the sea lice count data.
[66] As described above, the count is based on gathering 60 live fish, 30 of which are counted for lice by the Ministry while lice on the other 30 are counted by the fish farm. Each group makes notes of its observations and the Ministry ultimately inputs all information into its database.
[67] In my view, the Ministry‟s recorded observations and count of sea lice were the sole result of its employee‟s judgment. Therefore, I find that the Ministry‟s count of sea lice is not information supplied under s. 21(1)(b). For this reason alone, the Ministry cannot withhold this information under s. 21(1).
[68] However the fish farms‟ observations and count of sea lice were the result of its judgment and, though entered into the databank by the Ministry, the fish farms did supply the information thus satisfying s. 21(1)(b) of FIPPA.
42 [2000] B.C.I.P.C.D. No. 11.
43 [2006] O.I.P.C. No. 210.
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[69] To summarize, I find that the information under headings 1 and 2 and the sea lice count and comments provided by the fish farms under heading 4 is information supplied under s. 21(1)(b), while the information under heading 3 and the Ministry sea lice count and comments under heading 4 are not. This latter information therefore cannot be withheld under s. 21(1).
Was the information supplied explicitly or implicitly in confidence?
[70] Given the above findings, it is necessary to determine whether the supplied information was supplied explicitly or implicitly in confidence. The Ministry says it was. It argues that the LOU provides that “information gathered through the auditing and surveillance program will also be confidential with no public reporting of the findings for the same period.”44 The Ministry also submits that one of its veterinarians verbally advised fish farm operators that the fish health information provided to the Program would be treated in a confidential manner as part of the Veterinary Code of Ethics and Veterinary-Client-Patient relationship.45
[71] The Ministry contends that, even if the information were not explicitly supplied in confidence, the evidence would still support a finding that the information was supplied implicitly in confidence. In addition to relying on the LOU, the Ministry argues that it has consistently treated the information in a confidential manner to the point that it is not even shared with the Ministry‟s Fisheries and Aquaculture Licensing and Compliance Branch staff or Program staff outside of the Program office in Courtenay. It adds that the information is not disclosed to, or available from, sources to which the public has access. Lastly, the Ministry submits that the information was prepared solely for use by Program staff and not for sharing outside of the Ministry.46
[72] Marine Harvest argues that it supplied “site specific” information to the Ministry with the implicit understanding that it would be treated confidentially and that proprietary business information would not be released. An additional part of this understanding, it contends, is the “maintenance of veterinary confidentiality.”47
[73] Mainstream submits that, although there was no explicit written confidentiality agreement between it and the Ministry, circumstances are such that the information Mainstream supplied can be objectively regarded as having been provided in confidence, with the intention that it be kept confidential. The first circumstance Mainstream notes is that, given the public and
44 The period being one year from the completion date of the evaluation, Ministry‟s initial submission, para. 4.31.
45 Ministry‟s initial submission, para. 4.32.
46 Ministry‟s initial submission, para. 4.34.
47 Marine Harvest‟s initial submission, para. 14.
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contentious nature of the debate surrounding farmed salmon, it has consistently treated the information in a manner denoting a concern for its protection from disclosure. It ensures, for example, that the information is stored in a safe and secure manner at its offices by restricting access to the server on which the information is stored to a select group of Mainstream employees. Mainstream also points to the LOU and to what it says is the confidential nature of the relationship between the salmon farms and the Association, and the Association and the Ministry. The LOU, it asserts, ensures the confidentiality of individual company data supplied to the Association. It also notes that the LOU provides that information collected “through the auditing and surveillance program will also be confidential with no public reporting of the findings for the same time period.”48
[74] Grieg Seafoods also argues that information provided through the LOU is confidential. It submits that information provided to the Association in confidence, and information it supplies through Ministry audit, are intertwined. Because of this Grieg Seafoods argues that it is “completely reasonable” for it to conclude that all information it provided, whether to the Association or to the Ministry, was submitted on terms of confidentiality.49
[75] The Association argues that, since signing the LOU, it has worked cooperatively with the Ministry to ensure the confidentiality of data. The Association states:50
The LOU was intended to cover aspects of information sharing specific to aggregate data. In addition to data collection, the LOU outlined how the data would be housed and owned by [the Association], therefore making it inaccessible to Freedom of Information requests.
[76] The Association submits that at “some point” the Ministry began taking individual farm and company data annually as a means of auditing the aggregate information provided by those companies to the Association.51 The Association argues that its members understood, without providing specifics to support the assertion, that the audit was subject to the same confidentiality requirements.
[77] The applicant argues the LOU should not extend to information contained in the database:52
48 Mainstream‟s initial submission, para. 29.
49 Grieg‟s initial submission, para. 32.
50 Association‟s submission, p. 1. I note the Marine Harvest makes a similar claim in its initial submission stating that the LOU “show how the two parties worked co-operatively to ensure confidentiality of data. The LOU outlined how the data would be housed and owned by BCSFA, therefore making it inaccessible to Freedom of Information requests.”, para. 9.
51 Association‟s submission, p. 3.
52 Applicant‟s reply submission, para. 31.
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First, the terms of the confidentiality of the agreement keep data confidential for a period “one year from the completion of the database”. The database has been complete for more than one year and the data at issue in the Inquiry is well over one year old …
Second, it is not reasonable to extend confidentiality to the Audit activities where the existence and functioning of the [Association] database did not satisfy public concerns about sea lice problems and Audit activities are undertaken to “enhance public confidence and to validate industry information.”
Analysis of the confidentiality issue
[78] There is no evidence in this case of any written confidentiality agreement directly between individual fish farms and the Ministry. The Ministry adduced hearsay evidence that one of its former veterinarians, at some point, verbally advised fish farm operators that information would be treated in a confidential manner as part of the “Veterinary-Client-Patient relationship”. The Ministry does not say which operators it advised or when this may have occurred. I can give no substantial weight to this evidence.
[79] The nub of the confidentiality argument proffered by the Ministry, Association and fish farms centers rather on the January 23, 2001 LOU between the Ministry and the Association, of which the fish farms in question are members. The first mention of the Health Auditing and Surveillance Program, to which the requested information relates, is at section 5 of the LOU. That section says nothing about the confidentiality of the information collected under HASP. The final section of the LOU, which first addresses the Association‟s “Database” not in issue here, states as follows:
[The Ministry] and the [Association] agree to a period for critical evaluation and assessment of the Database as outlined in Section 4. It is estimated that structuring the Database will take approximately six months; hence the term of the pilot project evaluation and review will be one year from the completion date. Information gathered through the auditing and surveillance program will also be confidential with no public reporting of the findings for the same time period.
[80] I read this to mean that once the [Association‟s] Database system was completed in approximately June 2001, there would be a trial period of one year in which to evaluate this new system. The Ministry agreed that it would not publicly disclose information gathered through its own audit and surveillance program from fish farms until the one-year trial period was complete. This would be understandable in order to ensure the audit is accurate. The trial period would have completed in June 2002. The Association‟s submission suggests
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the trial completed in October 2002.53 In any event, it is evident to me that the LOU contemplated that once the pilot project evaluation was complete in June or October 2002 there would be public disclosure of data gathered to that point and afterwards. This finding is also consistent with:
…one of the main goals of [HASP which] is to validate the information reported by industry and instill public confidence in the results generated…54
[81] If the audit data is not publicly disclosed it is difficult to understand how the public could have confidence in it.
[82] Other evidence provided by the Ministry and third parties does little in my view to advance its claim the HASP information was supplied in confidence. I note the “confidentiality” a Ministry veterinarian accorded to Mainstream in an email dated November 21, 200755 concerned fish testing that was “independent of [HASP] and the results would not enter the HASP database…”. Implicit in this email is that data supplied under HASP would not be subject to the same confidence.
[83] For the reasons stated, I find that the requested information that remains in issue (i.e., the information under headings 1 and 2 and the one category under heading 4, being the counts of and comments on sea lice by the fish farms) was not supplied explicitly or implicitly in confidence.
[84] Though not necessary to do so, for the sake of completeness I consider below whether disclosure of the requested information could reasonably be expected to harm the third parties under s. 21(1)(c) of FIPPA.
Harm to third-parties
[85] The Ministry and third parties advance three arguments under each of paragraphs (i), (ii) and (iii) of the third branch of the s. 21 test.
Significant harm to competitive position
[86] The first argument relates to Ministry and certain third party contentions under s. 21(1)(c)(i) that, if the requested information is disclosed, the competitive position of individual fish farms will be significantly harmed. The Ministry summarizes this position:56
53 Association‟s submission, p. 2.
54 Ackerman affidavit, Exhibit E: “A Review of the British Columbia Ministry of Agriculture and Land‟s Fish Health Audit and Surveillance Program”.
55 Exhibit A, Leger affidavit,
56 Ministry‟s initial submission, para. 4.54.
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The Ministry suspects that Farms monitor the production of fish at other Farms. If medical management is required each company attempts to plan the medication of their fish on the basis of when they want to bring their fish to market. If rival companies have information about a competitor‟s medications for sea lice, including the timing of such medication, they will know that that company cannot bring their fish to market for a minimum of 68 more days. Such knowledge can therefore give a company a competitive advantage over its competitors. This is another reason that companies desire their fish health information to be treated in a confidential manner.
[87] The delayed harvest time Grieg Seafood cited was “at least 60 days”.57 Marine Harvest also mentions this concern but does not set out any timeline. Marine Harvest also argues that release of its “site specific therapeutic information” would undermine its competitive position.
[88] The applicant contends these arguments should be given no weight because:58
o The information at issue in this inquiry dates from 2004. The suggestion that the release of data could somehow be utilized by a competitor to time current harvests – with all due respect – is ridiculous.
o The suggestion that companies will change harvest plans during a 60 day window is inconsistent with the Ministry‟s submissions, at paragraph 4.53, that: “Harvest scheduling and commitments are based on growth projections and on buyer contracts development months in advance.”
o Even theoretically, any request under the Act for information in the nature of the information at issue in this Inquiry would almost certainly result in the targeting of information older than 60 days, meaning that no competitor could adjust harvest to take advantage of a company‟s inability to harvest. Specifically, public bodies are given 30 days to respond to a request under the Act (assuming no extensions or delays) and additionally there will be another 30 day delay to provide for consultations with third parties. Additionally, given the descriptions of the collection and recording of the data (e.g., interviewing fish farm veterinarians about past events) any information in the provincial database is likely already dated even on the day of entry. In short, even a request for the most contemporaneous data would almost assuredly fall outside the 60 [day] window of concern cited by the Ministry and Third Parties.
57 Affidavit of Mia Parker, para. 13.
58 Applicant‟s reply submission, para. 39.
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o Although it is the position of [the applicant] that this concern is not valid (and the other criteria of s. 21 have not been satisfied) if it is determined that there is a risk of a company gaining advantage during the 60 day window, there is always the option of applying section 21 only in relation to information that is newer than a certain date (e.g., 90 days). Again, this responds to a theoretical concern of the Ministry and Third Parties and not the facts at issue here.
o Finally, [the applicant] submits that the assertion that but for the release of this information, competitors would be unable to take advantage of an inability of the company to harvest is farfetched. It lacks credibility to assert that a buyer (such as supply to restaurants) would simply do without salmon during that period. In other words, the market would signal the inability of a supplier to meet existing buyers‟ demands and other companies would take advantage of that situation regardless of any release of this data.
[89] Establishing a reasonable expectation of harm requires more than speculation or generalization. Many previous orders state what is required is a clear and direct connection between disclosure of the specific information and the harm that is alleged.59 The evidence must be detailed and convincing enough to establish specific circumstances for the contemplated harm to be reasonably expected to result from disclosure of the information. The evidence here does not meet this test. I agree with the applicant that the disputed information (i.e., the information under headings 1 and 2 and the one category under heading 4) is beyond any time range asserted by the parties within which harm, let alone significant harm, might occur under the third part of the s. 21 test. For this reason alone, I find the arguments of the Ministry and third parties have no merit. I also find the other four points made by the applicant (as set out above) to be persuasive and supportive of my conclusion that the disclosure of the information cannot reasonably be expected to significantly harm the competitive position of the third parties.
[90] I also reject Marine Harvest‟s contention that release of “site specific therapeutic information” concerning sea lice would allow competitors to gain a competitive advantage. Marine Harvest offers no supporting evidence for this claim, by way of an in camera affidavit or otherwise. The “Fish Health Report,”60 cited by the Ministry, notes that there is “only one product available” for the therapeutic treatment of sea lice, suggesting that sea lice treatment regimes are limited and are likely already well known in the industry in any case.
59 See for example Order 04-06, [2004] B.C.I.P.C.D. No. 6, Order F05-29, [2005] B.C.I.P.C.D. No. 39 and Order F08-21 [2008] B.C.I.P.C.D. No. 39; see also Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773.
60 Exhibit F, p. 344, Ackerman affidavit,
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Information no longer supplied
[91] The Ministry and third parties maintain that disclosure of the requested information could reasonably be expected to result in similar information no longer being supplied to the Ministry when it is in the public interest that similar information should continue to be supplied. The essence of this argument is that the third parties voluntarily supply information on the basis that it would be treated confidentially. If it is disclosed, the third parties say they will refuse to provide the audit data in the future.61
[92] The Ministry argues the disputed information is not supplied to it under compulsion by way of an Act, regulation or express licence terms and conditions. Nor, it submits, is there is an existing licence condition requiring fish farm operators to permit the audits that resulted in the collection of the information. Rather, the Ministry contends, the collected information is governed by the LOU, which represents a voluntary arrangement between government and industry.62
[93] The Ministry submits that there is no statutory duty on the part of fish farms to provide mortality breakdowns or the information dealing with sea lice monitoring. It contends there is also no obligation on the fish farms to provide divers or boats to bring up fish samples for inspection and analysis.63 The Ministry does concede, however, that the cumulative effect of the Aquaculture Regulation is that Ministry inspectors, under those regulations, could potentially access certain aspects of the requested information. This information would include the “year and quarter” and site inventory information under heading 1 and the “Fish Health Events/Actions” under heading 2 in Appendix A. The Ministry adds that, although this information could be collected by inspectors under the Aquaculture Regulation, “the fact remains that none of the information at issue in this inquiry was collected by inspectors under such powers.”64
[94] Mark Sheppard, a Ministry veterinarian and manager responsible for animal aquatic health, summarized the Ministry‟s general position in the following manner:65
It is in the public interest for the government to understand the health status of fish on farms. The health status of animals must be assessed by specially trained Veterinary professionals licensed to do so. No other individual can make a diagnosis of disease. The Ministry desires access to the Information in order to track and make comparisons for
61 For example, the affidavit of Mia Parker, Grieg Seafood, para. 30.
62 Ministry‟s initial submission, para. 4.40.
63 Ministry‟s initial submission, para. 4.41.
64 Ministry‟s initial submission, para. 4.45.
65 Affidavit of Mark Sheppard, para. 34.
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epidemiological purposes to facilitate provincial fish transfers, international and federal animal health expectations as it relates to export and trade. If the Ministry could not agree to receive such information in confidence in the future, Farms would refuse to provide such information, which would harm the Ministry‟s ability to develop and improve farming strategies and plan and manage both farmed and wild stocks. If the information is not available to the Ministry in the future, in order to assess and audit the fish farming industry, the Ministry‟s and federal government‟s ability to meet its fish health objectives will be undermined. This has significant implications to access to export markets where >90% of the farmed salmon are currently sold. It is impossible to plan, adjust and improve its activities without remaining abreast of complete, historical and current fish health information. The goals of the Program are to monitor, report and improve the health management of farmed fish. In order for the public to have confidence that farmed fish are raised with wholesomeness, health, [sic] welfare in mind as a result of due care and attention by the farmer and with proper oversight by government.
[95] Mainstream flatly submits that it will not supply similar information when it is in the public interest that similar information continues to be supplied.66 Mainstream does not explicitly say there is no authority under which it may be compelled to provide data for the audit.
[96] Marine Harvest submits there are “no regulations or laws” which require it to release the information it gives to Ministry veterinarians or designates during on-site visits. It states that release of the requested information would result in Mainstream no longer supplying the requested information.67
[97] Creative Salmon argues that it provides audit information on a voluntary basis and if the applicant‟s access request is granted it will “immediately cease to volunteer further information to the Ministry.”68
[98] Grieg Seafoods contends there is no statutory requirement that allows the collection of audit data and that it only provides data on the understanding the data would be kept confidential. It states it will no longer submit the data if the applicant‟s access request is granted.69
[99] The applicant argues that a public body cannot refuse to release information on the basis of s. 21(1)(c)(ii) if the third party can be compelled by the public body to provide the information. It points to Fletcher Challenge Canada Ltd. v. British Columbia (Information and Privacy Commissioner),70 where the Court upheld an order of the former Commissioner on the basis that,
66 Mainstream‟s initial submission, para. 37.
67 Marine Harvest‟s initial submission, para. 16.
68 Creative Salmon‟s initial submission, para. 1.
69 Grieg Seafoods‟s initial submission, para. 43.
70 Fletcher Challenge Canada Ltd. v. British Columbia (Information and Privacy Commissioner), [1996] B.C.J. No. 505, BCSC.
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because the company could be compelled to supply the information, the refusal to release the information under s. 21(1) of FIPPA was not justified.
[100] In this case, the applicant submits:71
Under the BC Fisheries Act, section 12 of the Aquaculture Regulations gives inspectors various powers, including the power to enter a fish farm to investigate compliance with the Act and the terms and conditions of the aquaculture licence.
The Fisheries Act provides the authority for the Ministry of Agriculture and Lands (MAL) to licence fish farms (s. 13(5)), set the terms and conditions of those licences (s.16(d)), and to regulate on-site activities.
The Fisheries Act also provides for the power to make regulations for “safe and orderly aquaculture” (s. 26(2)(a)).
The BC Finfish Aquaculture Licensing Policy contains this provision:
13. Reporting and Monitoring
MAL Fisheries Inspectors will ensure compliance with the Fisheries Act, Aquaculture Regulation, and terms and conditions of the aquaculture licence through reporting and the conducting of regular inspections and other monitoring activities as appropriate, including spot audits.
The General Terms of an Aquaculture Licence72 include the requirements that the licencee:
2(9) keep records adequate to allow an Aquaculture Inspector, an Inspector of Fisheries or a Conservation Officer to determine if the holder is complying with the terms of this licence, the Aquaculture Regulation and Fisheries Act;
2(10) make available to an Aquaculture Inspector, an Inspector of Fisheries or a Conservation Officer, the records referred to in sub-paragraph 2(9);
…
2(12) deliver to the Branch, in the form and at the interval determined by the Minister, any information required to determine compliance by the holder with the terms of this licence, the Aquaculture Regulation and Fisheries Act;
…
71 Applicant‟s initial submission, para. 33.
72 The applicant noted the Licence is found online at the following government website: http://www.agf.gov.bc.ca/fisheries/Manu ... _terms.pdf.
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2(15) comply with all laws, bylaws and orders of any competent government authorities which affect the aquaculture facility described herein.
Section 4(2) of the BC Animal Disease Control Act, gives an inspector the power to enter water, onto any land, water structure or premises etc. in the performance of a duty under the act. Section 11 gives the inspector power at any time to inspect an animal for disease. The definition of animal includes aquatic animals that are grown and cultivated for commercial purposes.
[101] The applicant argues the Ministry has already imposed a self-described “mandatory” requirement that all fish farms have an FHMP as a condition of their license. The applicant submits that the FHMP requires that, among other things, each farm site monitor and record mortalities, diseases, sea lice numbers and treatment.73 This information is conveyed to the Association, which then sends quarterly reports to the Ministry. The Ministry then activates its Sea Lice Monitoring and Audit program to carry out randomly selected spot audits of farms, to ensure compliance with the FHMP. The applicant submits that, while the FHMP is not specified in legislation, a license is a statutory creation and the Ministry has the statutory ability to set terms and conditions required under it. Clearly, the applicant submits, the Ministry has the ability to compel the mandatory production of this information under the FHMP, even if the information is currently filtered through the Association.
[102] The Ministry responds that s. 26(2)(a) of the Fisheries Act does not give the Ministry power to make such a regulation but rather, that power has been reserved for the Lieutenant Governor in Council. The Ministry submits that arguing that such a regulation could be made in the future is pure speculation and, in light of that, it submits that the existence of such a power cannot support a finding that information that is similar to the information at issue in this inquiry will be supplied to the Ministry in the future.
[103] The Ministry also argues that ss. 4(2) and 11 of the Animal Disease Control Act have no application in this case because fish diseases are not listed under that Act.
Analysis
[104] Previous orders have clearly established the principle that s. 21(1)(c)(ii) of FIPPA does not apply where there is a statutory compulsion to provide
73 The applicant cites the Ministry‟s “Required elements of a Fish Health Management Plan for Public and Commercial Fish Culture Facilities in British Columbia, June 2003”, p. 3, available online at: http://www.agf.gov.bc.ca/ahc/fish_healt ... une-03.pdf.
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information––or the prospect of compulsion exists––or where there is a financial incentive for doing so.74
[105] Insofar as the information under heading 2 is concerned, I have no difficulty finding that this information is subject to compulsory inspection pursuant to the Aquaculture Regulation and the Ministry concedes as much in its submission. I find no merit in the Ministry‟s submission that there is no compulsory inspection here because Ministry veterinarians were asking for these records rather than “inspectors”. At the very least, the Ministry has within its authority the “prospect” of employing compulsion to access these records through its inspectors. The same can be said of the information the Ministry concedes has the potential to be inspected under heading 1, i.e., “Year and quarter” and the site inventory. I find that the balance of the information under heading 1, related to fish mortalities and their breakdown, is similarly subject to regulatory authority. The Aquaculture Regulation states:
Inventory records
5(1) For each finfish aquaculture facility of a holder, the holder must maintain accurate written records of the following for each containment structure in the aquaculture facility:
…
(b) the weekly finfish mortalities, including the causes of the mortalities and the numbers attributable to each cause of mortality;
[106] Section 12 of the Aquaculture Regulation, in turn, provides that an inspector may attend on the fish farm and require the production of these records. In summary, I find that the information under heading 1 and 2 is clearly the subject of regulatory authority and therefore I reject arguments these records are produced on a purely voluntary basis.
[107] What remains for consideration is the assertion that disclosure of the sea lice data, counted and categorized by the fish farms, would result in similar information no longer being supplied when it is in the public interest that similar information continues to be supplied.
[108] In my view, the position taken by the Ministry and third parties that such information is, in essence, voluntarily provided and would not be provided in future if the applicant‟s access request is granted, does not accord with the evidence before me.
74 See Order 03-05, [2003] B.C.I.P.C.D. No. 5, for example. Also see Order No. 56-1995, [1995] B.C.I.P.C.D. No. 29, upheld on judicial review: Fletcher Challenge Canada Ltd. v. British Columbia (Information and Privacy Commissioner), [1996] B.C.J. No. 505 (S.C.).
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[109] As noted above, the Ministry provided me with a document entitled “Fish Health Program – 2006” (“Report”),75 a Ministry publication providing a comprehensive overview of the fish farm industry, including a discussion of FHMPs and the Fish Health and Auditing and Surveillance Program, as well as a synopsis of industry sea lice results for the year.76
[110] The Report states:
Since 2003, all private companies and public fish culture facilities are required to develop and maintain a current FHMP specific to their rearing unit. For private companies and the provincially licensed public facilities, the FHMP is enforceable as a Term & Condition of an aquaculture license.77 (emphasis added)
[111] This is consistent with the “General Terms of an Aquaculture Licence” cited by the applicant. The license states in part:
2. The holder of an Aquaculture Licence shall:
2(1) comply with each Management or Development Plan;
[112] The License defines these plans as “a plan filed with and approved by the Branch for the species and location specified on the face of the licence.”
[113] The Report goes on to explain what an FHMP comprises:
Three documents comprise a FHMP: The Required Elements78 document provides the guiding principles for the FHMP process; the Template for Writing a Facility Specific Health Management Plan, details what is required of operators and lists required Standard Operating Procedures (SOPs) for management of farm activities affecting fish health; and the Manual of Fish Health Practices is used by government regulators as a standards document against which the industry SOPs are assessed.
[114] The Ministry referred me to its website in reference to the above FHMP elements, including the Template.79 The Template begins with the following statement:
75 Exhibit F, p. 344, Ackerman affidavit.
76 Ackerman affidavit, Exhibit F.
77 Ackerman affidavit, Exhibit F, p. 297.
78 The italicized phrases are reflected in the original document as hyperlinks to take the reader to the applicable Ministry webpage.
79 Ministry‟s reply submission, para. 18. The Ministry stated that what it described as “…non-prescriptive requirements and guidelines” of FHMPs “are posted on the Ministry‟s website.” The Ministry states further that, “[t]he following documents can be found on the Ministry‟s Fish Health website; a template, describing what information needs to be in a Fish Health Management Plan (FHMP); the need for a FHMP; and how to design a FHMP.” The Ministry did not cite a precise website address but I was able to locate the Template at http://www.agf.gov.bc.ca/ahc/fish_healt ... ay2006.pdf .
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The objective of this Fish Health Management Plan is to provide good health conditions for cultured fish owned by operators in British Columbia. All private operators and public fish culture facilities must develop and maintain an up-to-date Fish Health Management Plan (FHMP) specific to their facility(ies). The FHMP is enforced as a condition of an aquaculture license.
This document does not replace the regulatory requirements for a Fish Health Management Plan but is intended to help operators write their own Fish Health Management Plans. Operators licensed to produce salmon in British Columbia are expected to follow the principles described in the template. Applicable legislation and regulations are included in Appendix 3. (emphasis added)80
[115] The Template provides the following:
Audit of Farm Sites by BC Agriculture and Lands
Agriculture and Lands staff will continue to monitor 25% of active Atlantic salmon sites per quarter for Quarters 1, 3, and 4 of each year. During monitoring and surveillance activities at the selected sites, 10 fish will be selected from the 20-fish sample from each of the three sample pens for evaluation by BCMAFF staff. The fish will be systematically examined by the [Ministry] Fish Health Technician and lice numbers enumerated and classified as outlined above.
[Ministry] staff may also collect lice samples from anaesthetized or euthanized fish for periodic evaluation and confirmation of lice species and life-stage. Environmental data (water temperature, salinity at 0 1, 5 and 10m) for the day of the audit will be recorded. During Quarter 2 (April to June inclusive) Ag and Lands audit and surveillance activities will increase to 50% of all Atlantic salmon sites for farms with fish that have been in saltwater for greater than 120 days (based on the date of first pen entered on a site). For sites that are selected for audit during this quarter, the audit sample will be conducted as a second monthly sample and not as the industry required monthly sample. Sampling will be conducted as described above. (Bold original)81
[116] The only reasoned inference one can draw from these Ministry records is that fish farms must follow the principles in the Template that encompass the Ministry Fish Health Auditing and Surveillance Program. None of the third parties provided me a copy of their FHMP stating otherwise or argued that their FHMPs were in any way inconsistent with the above.
80 Template, p. 4.
81 Template, p. 19.
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[117] As noted above, the Ministry‟s Mark Sheppard states in his affidavit that if fish farms do not meet the requirements of their FHMP and “corrective measures are not taken”:
…, those [Ministry] inspectors will be asked to facilitate compliance. Ultimately, fines and/or non-renewal of an aquaculture license may arise yet this degree of enforcement is rarely, if ever, required.
[118] Whether such enforcement is rare or not, the Ministry‟s evidence is clear that ultimately, non-renewal of a license is possible. At the very least, this reality provides a financial incentive for the fish farm to ensure its operations are audited in accordance with the FHMP so that it retains its license.
[119] In light of all of the above, it can hardly be asserted that the Ministry‟s audit concerning sea lice numbers is a truly voluntary act which fish farms have the option of taking or leaving. In reality, these sea lice audits comprise part of a larger scheme to oversee the operations of the fish farm industry. The genesis of the entire scheme, including the FHMP, was the result of the recommendations of the 1997 Environmental Assessment Review of Agriculture as was noted by the Ministry in its submission.82 The Report states:
In 1999, [the Ministry] accepted the recommendations, developed a new Salmon Aquaculture Policy and committed to addressing concerns through the staged implementation of a new regulatory and management framework with the major objective to improve fish health. Implementation of the program began in 2001 and for the last six years it has served to better regulate the finfish aquaculture sector.
[120] The Report continues:
The [FHMP] dictates that all salmon farming companies in British Columbia must monitor their fish and report to the industry database monthly the status of fish health at their farms…To enhance public confidence and to validate industry information, [the Ministry] audits the farm sites sampling specifically for endemic diseases.
[121] I also note the Ministry‟s argument that a failure by the third parties to continue supplying this information will have “significant implications to access to export markets” where over 90% of the companies‟ production is sold. I agree with the applicant‟s observation that, contrary to the Ministry‟s assertion, this would in fact be a financial incentive for fish farms to continue to supply the information in order to continue to access those export markets.
[122] In light of all of the foregoing I reject the argument of the Ministry and third parties that the test under s. 21(1)(c)(ii) is met in this case.
82 Ministry‟s initial submission, para. 4.08.
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Section 21(1)(c)(iii) – disclosure would result in undue financial loss to third parties
[123] The third argument advanced by the Ministry and some, but not all, of the third parties is that disclosure of the requested records will result in the third parties suffering undue financial losses. The following submission by Marine Harvest is reflective of the third party submissions in this case:83

Site specific fish health and sea lice information used out of context and misinterpreted could, and has been used in the past to bring pressure to bear on regulating authorities. This pressure resulted in Marine Harvest Canada having to move one site, twice. The cost to Marine Harvest Canada of this move was $1.0 million. Release of the site specific fish health and sea lice information would only escalate this type of pressure and subsequent cost to Marine Harvest Canada…Marine Harvest is a publicly traded company on the Oslo Stock Exchange and as such, corporate reputation is very important in maintaining share price and shareholder loyalty. Buyers of Marine Harvest Canada salmon have been the targets of campaigns which attempt to taint the corporate reputation of Marine Harvest Canada and convince buyers and consumers to stop purchasing Marine Harvest Canada salmon. Release of the site specific fish health and sea lice information would result in more of these types of attacks. Information would be used out of context and misinterpreted, with the end result that Marine Harvest Canada's reputation could be tarnished and sale volumes reduced.

[124] Marine Harvest also argues that the requested data is only a snapshot and therefore can be easily taken out of context.
[125] Mainstream argues that organizations like the applicant seek to undermine the viability of the salmon farming industry and will use the information to that end if it is disclosed to them. Mainstream submits further that:84
… if the Applicant and groups like it are in possession of information that would suggest or confirm the presence of pathogens and/or sea lice in any quantity, and particularly in significant quantities, it is clear that they would use this information to damage Mainstream‟s business. The public would not be interested in buying fish that they are told are infected with pathogens or were raised in an environment conducive to the presence of pathogens and/or sea lice or contain carcinogenic material. It is axiomatic that Mainstream‟s business would suffer as a result.
[126] Creative Salmon argues that information previously released under FIPPA to an anti-salmon farming group led that group to issue a press release.
83 Marine Harvest‟s submission, para. 17.
84 Mainstream‟s initial submission, para. 40.
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Creative Salmon states that it successfully sued for defamation over the matter.85

[127] The applicant argues that the Ministry and third parties have failed to cite any authority for their position that the potential to use disclosed data out of context, or misusing it, is a basis for satisfying the test under s. 21(1)(c)(iii). The applicant says that audits are by their nature “snapshots” and that FIPPA contemplates that this kind of information is disclosable.86 As for the argument that disclosed information may be used as a weapon by opponents of fish farms, the applicant submits that one of the very purposes of FIPPA is to provide citizens with access to information precisely for the purpose of giving them the ability to oppose government policies and programs on an informed basis.

[128] The applicant rejects the defamation lawsuit argument advanced by the Ministry and third parties. The applicant states neither it nor the information at issue has any connection to that case. Moreover, the applicant argues it is always theoretically possible that someone could engage in defamatory conduct and in spite of this, the legislature chose to create public access rights and did not create a specific exemption for withholding information on the basis that it might be misused. Most importantly, the applicant submits that the defamation case illustrates that the third parties have avenues of legal redress should information obtained under FIPPA be misused.87 As for Mainstream‟s claim that it was required to move facilities at a substantial cost, the applicant submits that if there was no sound scientific basis for this relocation, Mainstream had the option of pursuing appropriate legal remedies.88

[129] I have carefully considered all of the submissions the parties advanced in relation to this third argument. I conclude that the Ministry and third party submissions are speculative and cannot be sustained under s. 21(1)(c)(iii). In my view it is possible that any information disclosed under FIPPA could, at least in theory, be taken “out of context” by any member of the public. Were this a basis for withholding records, one could easily envision very little information being disclosed by public bodies which are, in many cases, concerned how information might be used and viewed by members of the public. Possible misuse or distortion of material released under FIPPA is not a basis for claiming an exception under s. 21 or any other provision of the legislation for that matter. Commissioner Flaherty addressed a similar argument in Order No. 22-1994:89

With respect, I find this argument especially unpersuasive, not least because it can be used to seek to suppress any kind of data, information, or

85 Creative Salmon‟s initial submission, pp. 1 and 2.
86 The applicant cites s. 13(2)(g) of FIPPA.
87 Applicant‟s reply submission, para. 50.
88 Applicant‟s reply submission, para. 51.
89 [1994] B.C.I.P.C.D. No. 29.
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records. I am supported on this point by Ontario Order P-373, at page 9. Companies try to shape their public image by controlling the flow of information they release to the media and the public. Public bodies, like the WCB, have a responsibility to provide the public with the best information available to serve the public interest.

This clearly includes information about corporate health and safety records. If a company is concerned about adverse publicity arising from the disclosure of unfavourable information, this is a public relations problem and not an information and privacy problem.

The primary purpose of the Freedom of Information and Protection of Privacy Act is to create a more open and accountable society by disclosing records to the public. It will always be a matter of debate how much the public needs to know. But the legislature of this province has clearly set the balance in favour of greater disclosure of non-personal information.

[130] If the Ministry and third parties are of the view that the disclosed information requires further elaboration and “context” then each is capable of expressing those elaborations publicly. If the applicant, or anyone else for that matter, wishes to use accessed information to praise or criticize industry regulation for example that is their prerogative in a democratic society. I note the words of Commissioner Loukidelis in Order 01-52:90

In my view, it does not sit well for the Ministry to object, as its submissions implicitly do, to disclosure under the Act on the basis that the disputed information will be used to publicly criticize the work of the Ministry. It is entirely appropriate for an applicant – and especially public interest groups – to exercise the right of access under the Act in order to obtain information for the purpose of assessing and criticizing the performance of government. An express purpose of the Act, articulated in s. 2(1), is to “make public bodies more accountable to the public … by giving the public a right of access to records”.

[131] For all of these reasons I find that the Ministry and third parties have failed to prove that they meet the test set out in s. 21(1)(c)(iii).
4.0 CONCLUSION
[132] For the reasons set out above, I require the Ministry of Lands and Agriculture to give the applicant access to the information requested within 30 days of the date of this order, as FIPPA defines “day”, that is, on or before April 12, 2010 and, concurrently, to copy me on its cover letter to the applicant, together with a copy of the records.
90 Para. 85.
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[133] Given the above order, it is not necessary for me to consider those matters referred to at paragraph 3 above.
March 1, 2010
ORIGINAL SIGNED BY
Michael McEvoy
Adjudicator
OIPC File No. F07-33524
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APPENDIX A
Information collected on site (by checklist and interview)
1. Fish Mortality Information Year and quarter; Farm Code = coded case number (i.e. A.2.3-34 = Atlantic salmon, sub-zone 2.3, submission group #34) Date of sampling; Site inventory (i.e. number of fish); Total mortalities for dive; Mortality Breakdown:
o Predators;
o Environment;
o Non Performers;
o Old/rotten (i.e. too old to be of diagnostic quality);
o Silver (i.e. suspected disease/parasite);
o Other;
2. Fish Health Events/Actions Last treatment;
o Prescription/non-prescription product(s);
o Start/end date;
o Husbandry change to manage potential infectious disease;
o Reason for treatment/husbandry change.
Health Events Diagnosis type; Diagnosis (e.g. sea lice sampling); Action taken (if any); Treatment type (e.g. anesthetic); Drug product (e.g. TMS anesthetic); Start date/end date; Or specific prescription information.
Information derived from fish and carcasses supplied by the fish farm:
3. Miscellaneous data Number of fish sampled for testing; Tissue samples collected;
o Gill;
o Heart;
o Caecae;
o Kidney;
o Peritoneal;
o Liver;
o Spleen;
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o Other; Tests conducted;
o Bacteriology;
o Histology;
o Virology;
o Other; Open „dialogue‟ box to type comments, clarifications, observations, (i.e. most carcasses had white spots in the gills, last dive was 7 days ago, predation is a problem here…);
Veterinary information concerning diagnostic test results in relation to fish samples provided by fish farms (from the Ministry’s AHC Lab in Abbotsford):
Tentative diagnosis.
Farm diagnosis.
Virology Year/quarter; Case ID number; The BC Farm number (based on the company‟s license) is registered within the fish health database; Date Submitted; Way Bill; Lab number; Date received; Virus results - all negative OR positive/negative/not tested for:
o IHNV;
o IPNV;
o ISA;
o VHS;
o Piscirickettsia.
Fish ID (i.e. 4th silver carcass collected); Pool ID;
o Pool PCR;
o Pool cell culture;
o Individual sample cell culture;
Bacteriology Year/quarter; Case ID; The BC Farm number (based on the company‟s license) is registered within the fish health database; Date Submitted; Way bill; Lab Number; Date Received;
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Number of fish; Fish ID; Bacterial identification from isolate & drug sensitivities (e.g. Yersinia ruckeri);
o ERM:R (resistance);
o FFC:S (sensitivity);
o SSS:R;
o SXT:S;
o TET:S.
Histology Year/quarter; Case ID; The BC Farm number (based on the company‟s license) is registered within the fish health database; Date Submitted; Way Bill; Lab Number; Date Received; Histology summaries made by vet histopathlogist (eg. Diffuse peritoneal fibrinour peritonitis, …PVP); Comments (e.g. “post vaccination peritonitis”) Number of fish; Morphology (e.g.)
o Liver/spleen/heart
o Basophillic cytoplasm/hepatitis/endocarditis
4. Sea Lice Monitoring and Auditing Data Farm Code; Sampled by; Date sampled; Pen ID;
Fish number Number of gravid female; Adult female; Adult males; Pre-adult males and females; Chalimus; Caligus spp; Comments; General comments.

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Rejection of Federal B.C. Aquaculture Regulation and Strategic Action Plan

Open Letter to Department of Fisheries and Oceans Minister Gail Shea

March 30, 2010

OPEN LETTER

Honourable Gail Shea
Department of Fisheries and Oceans Canada

Dear Minister Shea,

We are writing with respect to Union of BC Indian Chiefs (UBCIC) Resolution no.2010-14, Aquaculture – Rejection of Federal BC Aquaculture Regulation and Strategic Action Plan which was carried at the Union of BC Indian Chiefs Council on March 18, 2010 (enclosed).

The UBCIC Chiefs Council has affirmed its rejection of the Federal Initiative because it does not meet Canada’s legal and constitutional obligations to First Nations. The UBCIC insists that the Federal government abandon this Initiative. Although, this is a fundamentally flawed process, there is some useful information coming from the process which could be used to inform a more meaningful consultation process that fully embraces the Crown’s obligations. It is with this expectation, the UBCIC urges Canada to meaningful engage with all affected First Nations about the appropriate process to develop Regulations and Strategic Action Plan for aquaculture. The Federal government must recognize First Nations land use and marine use plans in the criteria in the determination of sites.

The UBCIC Chiefs Council strongly feels that Canada’s Regulations and Strategic Action Plan must give expression to First Nations laws, authority, and traditional knowledge and must incorporate the economic component of Aboriginal Title and Rights and Treaty Rights in order to adequately address and develop a regulatory framework and policies around aquaculture.

If there are any questions or comments please contact Chief Bob Chamberlin, Secretary-Treasurer at 604-684-0231 or 778-988-9282.

On behalf of the UNION OF BC INDIAN CHIEFS

Grand Chief Stewart Phillip
President

Chief William Charlie
Vice-President

Chief Bob Chamberlin
Secretary-Treasurer


UNION OF B.C. INDIAN CHIEFS
CHIEFS COUNCIL
MARCH 17TH - 18TH, 2010
VANCOUVER, B.C.

Resolution no. 2010-14

RE: Aquaculture – Rejection of Federal B.C. Aquaculture Regulation and Strategic Action Plan

WHEREAS First Nations practiced uncontested, supreme and absolute jurisdiction over our territories, our resources and our lives with the right to manage our lands, resources and institutions;

WHEREAS First Nations have been negatively impacted by aquaculture in their territories, due to the harm the industry has caused to wild fish stock; Crown decisions have been made in disregard of our laws; and the Crown has granted tenures for aquaculture, which take what is ours and give it to benefit others, without our consent, appropriate consultation or accommodation, and to our economic and cultural detriment;

WHEREAS we respect as First Nations people that we have the right to determine our level of involvement and perspectives on the aquaculture industry based on each of our community’s needs, aspirations and priorities;

WHEREAS in February 2009, the B.C. Supreme Court issued a decision in the case of Morton v. British Columbia (Minister of Agriculture and Lands) [2009] B.C.J. No. 193, striking down Provincial Legislation and regulations pertaining to aquaculture, finding that it is the Federal Government and not the Province that has jurisdiction to regulate aquaculture on behalf of the Crown;

WHEREAS Canada has launched the Federal B.C. Aquaculture Regulation and Strategic Action Plan Initiative (the “Federal Initiative”) which involves the development of a regulatory framework and policies for aquaculture;

WHEREAS the Federal Initiative impacts the majority of First Nations in B.C. since aquaculture operates and affects fish and waters where Aboriginal Title, Rights and Treaty Rights are exercised, and encompasses land where Aboriginal title has not been extinguished;

WHEREAS First Nations expect that aquaculture will continue to cause increased harm and interference in the future, since the Federal Initiative contemplates expansion of shellfish aquaculture;

WHEREAS because the impact of aquaculture affects established Aboriginal Rights and Treaty Rights and unextinguished Aboriginal Title, Canada has a duty of meaningful consultation, which should entail obtaining the consent of affected First Nations, in respect of the development of regulatory framework, policies and strategic plans, which integrate solutions to concerns raised by First Nations;

WHEREAS the Federal Initiative does not meet the legal obligations of Canada regarding the engagement with First Nations, the timeframe for engagement is inadequate. Canada targets a “significant number of First Nations” who may be impacted by the Federal Initiative, rather than providing all affected First Nations the opportunity of constructive engagement. The Federal Initiative avoids recognition of Aboriginal Title and Rights and Treaty Rights, and provides inadequate capacity for engagement.

THEREFORE BE IT RESOLVED that the UBCIC Chiefs Council reject the Federal Initiative as it stands and will communicate this to the government of Canada;

THEREFORE BE IT FURTHER RESOLVED that the UBCIC Chiefs Council urge the Federal Government to recognize First Nations land use and marine use plans and that the criteria in the determination of sites incorporate and provide space for information from First Nations planning efforts;

THEREFORE BE IT FINALLY RESOLVED that the UBCIC Chiefs Council direct UBCIC staff to draft an open letter communicating that:
(a) The Federal Initiative in its present form does not meet Canada’s constitutional obligations to First Nations, and should be abandoned;
(b) Some outputs of this current effort can be used to inform meaningful consultation;
(c) Canada must engage with all affected First Nations about the appropriate process to develop Regulations and a Strategic Action Plan for aquaculture;
(d) Canada’s Regulations and Strategic Action Plan must give expression to First Nations’ laws, authority, traditional knowledge and the economic component of Aboriginal Title and Rights and Treaty Rights.

Moved: Chief Mike LeBourdais, Whispering Pines Indian Band
Seconded: Chief Dalton Silver, Sumas First Nation
Disposition: Carried
Date: March 18th, 2010


PDF COPY:
http://www.ubcic.bc.ca/files/PDF/UBCICL ... 201014.pdf

[admin]

Hello,

The conflict between BC communities and salmon farms has been ongoing for 15 years. So we are going on a 500km migration to try and bring reason to this situation (salmonaresacred.org):

The salmon farming industry is 92% Norwegian-run, but in 1993 government excused them from all Canadian fishing regulations (Pacific Fishery Regulations). This is how they have unregulated wild salmon, herring, black cod and other species attracted to their nets by their bright lights.



Holding salmon in farms causes disease and lice to intensify. The fish farmers say it would be bad for business if they had to report their disease outbreaks. The Fraser sockeye that vanished passed 60 salmon farm sites, while the Fraser sockeye observed migrating to the south, past no fish farms, returned higher than forecast.

Alexandra Morton is a biologist who has been documenting and communicating the impacts of salmon farming on wild salmon for the last 20 years (http://alexandramorton.typepad.com/). After all those years of scientific work, and recently rigorous legal action, she has decided it is time for action. Nothing else is working.

Many First Nations, scientists, tourism businesses, communities and environmentalists are calling for removal of salmon farms from the Fraser sockeye migration route, but the farms are just trying to get bigger and more numerous. The salmon farmers are lobbying government right now to keep their regulations weak.

So, Alexandra and a group of us have decided to do a large Migration. It's called the Get Out Migration. We are walking from our homes on Malcom Island to Victoria (~500kms) to raise awareness to our government about the importance of wild salmon and to demand that salmon farms get off the migration routes of wild salmon, because they cause disease epidemics and pollute the nearshore habitat.

We are walking from April 22 to May 9. On May 8 we'll arrive in Victoria and will walk to the Parliament building where we will be received by MP Finn Donnelly. He'll receive our petitions and celebrate wild salmon with us. It is important he sees the efforts of the walk, but also on the internet and around the world.

The whole point of this is to stand up and be counted - whether that is electronically, in written form or in person. People across Vancouver Island (and the world) are being amazing - inviting us into their homes, planning their own Migrations to join up with us, booking community halls for Salmon Celebrations...it's going to be two intense but beautiful weeks on the road and on-line. For example, many people from the Fraser watershed are migrating to the Tsawwassen ferry terminal, taking the ferry and joining us on our final march to Victoria.

If you want to let the federal government know that wild salmon are more important to you than farmed salmon, I encourage you too to stand up and be counted. Here are some ways to take action:

- You can sign the petition at http://salmonaresacred.org/petition-protect-wild-salmon
- You can print out a card to mail to MP Finn Donnelly on the Fisheries Standing Committee at http://salmonaresacred.org/downloads (mailing the Feds is free!)
- You can sign a letter to the Fisheries Minister to hold salmon farms to Canadian fisheries laws - http://www.adopt-a-fry.org/
- You can check the Migration's website and go to an event in your community, participate in Forum discussions and watch our Migration's progress
- You can organize a Migration event in your community
- OR you can join us on any part of the walk! We'd love anyone and everyone in any shape or form.

To see our itinerary, visit: http://salmonaresacred.org/itinerary

It would be wonderful to have people from communities and watersheds on the Island and throughout the mainland of BC to join us in any way possible. Salmon truly are sacred. Please consider joining us in this effort to fight for wild salmon. We would be honoured to have your participation.

Please visit the website: salmonaresacred.org

[admin]

Certification Hearing begins for First Nation Class-Action law suit against British Columbia Government to address negative impacts of salmon farming

Farmed fish protest goes to BC Supreme Court
UPDATED: April 13th 2010
http://www.turtleisland.org/discussion/viewtopic.php?p=11302#p11302


- - -
Apr 12th, 2010

Certification Hearing begins for First Nation Class-Action law suit against British Columbia Government with the aim of addressing negative impacts of salmon farming

WHO:

Chief Bob Chamberlin, Kwicksutaineuk/Ah-Kwa-Mish First Nation (KAFN) & Chairman of the Musgamagw-Tsawataineuk Tribal Council (MTTC) accompanied by Hereditary Chiefs and Regional First Nation Leaders will attend the first day of Certification Hearings in the Supreme Court of British Columbia.
PHOTO: http://twitpic.com/1fbwcp

WHAT:

Chief Chamberlin will explain the importance of the legal action and address the ongoing decline in wild salmon issue as it pertains to the KAFN. Chief Chamberlin will be accompanied by Hereditary Chiefs from the following First Nations:

Kwicksutaineuk
Ha-xwa-mish
Tsawataineuk
Gwawaenuk
Namgis
Mamtagila
Mamalilikulla

WHERE:

Nelson Street entrance to the BC Supreme Court Building at 800 Smithe St. Vancouver

WHEN:

Tuesday April 13, 2010 at 8:15 am

BACKGROUND:

In February 2009, representatives of the Kwicksutaineuk/Ah-Kwa-Mish (kwik wasoo tea noox & ha kwa meesh) First Nation (KAFN) launched a Class Action law suit involving the B.C. Government's regulation of open net-cage salmon farms, and the very survival of B.C.'s wild salmon. This case is also notable for being the first time a Canadian First Nation has used the Class Proceeding Act to advance an Aboriginal rights claim.

It was filed to address the negative impacts of open net-cage salmon farming and the decline in the wild salmon population in their traditional territory. The suit was brought against the B.C. Government by a First Nation whose territory is within the area known as the Broughton Archipelago. This is the formerly salmon rich area of mainland coast, islands and bays east of the northern tip of Vancouver Island. Currently, 29 fish farms are authorized by the B.C. Government to operate in the area. The KAFN contends that these fish farms are licensed and regulated in a manner that has significant negative impacts on wild salmon stocks.

The certification hearing will determine whether or not the action can go forward as a class action. If the Court approves this procedure, all First Nations who utilize the wild fishery in the area will be notified, and will then have the opportunity to make a claim under the class action, or to opt out.


07038-001\0052
No.
Vancouver Registry
In the Supreme Court of British Columbia
BETWEEN:
CHIEF ROBERT CHAMBERLIN,
Chief of the Kwicksutaineuk/Ah-Kwa-Mish First Nation,
on his own behalf and on behalf of all members of the
KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION
PLAINTIFF
AND
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE
OF BRITISH COLUMBIA as represented by the MINISTER
OF AGRICULTURE AND LANDS
DEFENDANTS
BROUGHT UNDER THE CLASS PROCEEDINGS ACT, R.S.B.C. 1996, c. 50

STATEMENT OF CLAIM
Introduction
1. This is a proposed class action on behalf of all members of the First Nations who
have or assert constitutionally protected aboriginal and/or treaty rights to fish wild salmon for
sustenance, food, social, and ceremonial purposes (“Fishing Rights”) within the Broughton
Archipelago (“Class”). The boundaries of the Broughton Archipelago are set out on the map
attached as Schedule “A” to this Statement of Claim.
2. The Broughton Archipelago is a network of fjords and islands located along the
mainland coast and adjacent to the North Eastern side of Vancouver Island. The Broughton
Archipelago is a unique ecosystem that supports significant stocks of wild salmon that migrate in
cycles from their spawning grounds in the Broughton Archipelago to the Pacific Ocean and then
return to spawn their original spawning grounds (“Wild Salmon”).
3. The Plaintiff says that the manner in which Her Majesty the Queen in Right of the
Province of British Columbia (“Province”), primarily through the Minister of Agriculture and
07038-001\0052 – 2 –
Lands (“Minister”), has authorized and regulated salmon aquaculture has caused a serious and
material decline in the Wild Salmon stocks within the Broughton Archipelago, which may result
in the extinction of some salmon runs. The conduct of the Minister and Province has infringed
and continues to infringe the Fishing Rights in violation of s.35 of the Constitution Act, 1982.
The Representative Plaintiff
4. The Plaintiff, Chief Robert Chamberlin is Chief of the Kwicksutaineuk/Ah-Kwa-
Mish First Nation (“KAFN”) and brings this claim on his own behalf and on behalf of all
members of the KAFN. The KAFN is an Aboriginal group within the meaning of s.35 of the
Constitution Act, 1982 and a band within the meaning of the Indian Act, 1985, c. I-5.
5. The members of the KAFN are descendants of the Kwakwala speaking people
who, at the time of European contact, were organized as two tribes known as the Kwicksutaineuk
and the Ah-Kwa-Mish. These tribes were amalgamated on or about 1940 and are now
collectively referred to as the KAFN.
6. Before and at the time of European contact, the Kwicksutaineuk and the Ah-Kwa-
Mish tribes used fishing sites in the Broughton Archipelago, including offshore, inshore and
foreshore sites, rivers and streams, including land, land covered by water, and the water itself.
From these sites, members of the tribes harvested the Wild Salmon for sustenance food, social
and ceremonial purposes in the Broughton Archipelago. In order to support and continue these
uses, the tribes successfully sustained and managed their fishing sites and the Wild Salmon
stocks that they harvested from them in accordance with their laws and customs. The fishing and
management of the Wild Salmon were, and continue to be, integral to the KAFN’s distinctive
culture as a First Nation. The KAFN have Fishing Rights in the Broughton Archipelago.
7. The KAFN’s preferred means of exercising their Fishing Rights are:
(a) to fish Wild Salmon during the period of March to November each year;
(b) to fish Wild Salmon from the rivers within the Broughton Archipelago by means
of traps, dip net, spear and gaff hooks; and
(c) to fish Wild Salmon from tidal and salt waters within the Broughton Archipelago
by means of trolling with a line and lure, gill net, seine net, dip net and gaff hook.
07038-001\0052 – 3 –
8. The primary residential village of the KAFN, which has been set aside for the
KAFN’s exclusive use as a reserve within the meaning of the Indian Act, is on Gilford Island in
the Broughton Archipelago. In addition, nine reserves within the meaning of the Indian Act have
been set-aside in the Broughton Archipelago for the exclusive use of the KAFN, six of which
were expressly reserved for fishing purposes of the KAFN. Those features are set out on the
map attached as Schedule “A”.
9. By its words and conduct, the Province has admitted that the Class, including the
KAFN, has Fishing Rights in the Broughton Archipelago.
The Impact of Salmon Aquaculture in the Broughton Archipelago
10. The Province authorizes and regulates salmon aquaculture in the Broughton
Archipelago under the Land Act, R.S.B.C. 1996, c. 245 (“Land Act”) and the Fisheries Act,
R.S.B.C. 1996, c. 149 (“Fisheries Act”). Pursuant to the Fisheries Act, the Province has enacted
the Aquaculture Regulation, B.C. Reg. 78/2002. Pursuant to the Environmental Management
Act, S.B.C. 2003 the Province has enacted the Finfish Aquaculture Waste Control Regulation,
B.C Reg. 256/2002. In its entirety, the provincial legislative scheme permits, sets the terms for,
monitors and otherwise regulates almost every aspect of salmon aquaculture. The Minister is the
statutory decision maker with respect to the issuance of aquaculture licences of occupation under
section 11(2) the Land Act and aquaculture licences under sections 13(5) and 14(2) of the
Fisheries Act.
11. As at the date of the filing of this Statement of Claim, the Minister has authorized
29 salmon aquaculture sites to operate in the Broughton Archipelago (“Salmon Farms”) as set
out on the map attached as Schedule “A”.
12. The manner in which the Province has authorized and regulated the Salmon
Farms and the farming of non-indigenous salmon species has had and continues to have
significant, cumulative, and deleterious impacts on the Wild Salmon stocks in the Broughton
Archipelago, in particular, by:
(a) failing to prevent or adequately manage the concentration of parasites, including
sea lice, at the Salmon Farms and the transmission of these parasites from the
Salmon Farms to the Wild Salmon;
07038-001\0052 – 4 –
(b) failing to prevent or adequately manage the concentration of infectious diseases at
the Salmon Farms and the transmission of these infectious diseases from the
Salmon Farms to the Wild Salmon;
(c) allowing the farming of non-indigenous Atlantic salmon species at the Salmon
Farms and failing to prevent or adequately manage escapes of Atlantic salmon
from the Salmon Farms that compete with the Wild Salmon for habitat and food;
(d) permitting the Salmon Farms to be located in areas that encounter significant runs
of Wild Salmon, particularly as vulnerable juvenile Wild Salmon;
(e) permitting Salmon Farms to operate without requiring fallowing in a manner that
effectively protects juvenile Wild Salmon during critical periods when juvenile
Wild Salmon stocks are known to be passing in close proximity to Salmon Farms;
(f) permitting Salmon Farms that allow the transmission of parasites and disease to
Wild Salmon by the use of permeable cages causing free flow of contaminated
water and waste between the Salmon Farms and the marine environment;
(g) allowing the number of farm sites and density and total biomass of the farmed fish
to increase dramatically;
(h) allowing the pollution of Wild Salmon habitat; and
(i) making other decisions about, among other things, the location of the farms, size
of the farms, concentration of the fish permitted in the farms, the application of
pest and disease treatments and the timing of fish harvesting operations, which
have significant negative impacts on the Wild Salmon.
13. The Province is, or ought to have been, aware that the manner in which it has
authorized and regulated the Salmon Farms in the Broughton Archipelago has had and continues
to have significant, cumulative, and deleterious impacts on the Wild Salmon and consequent
harm to plaintiff and the Class.
The Province has Infringed and Interfered with the Fishing Rights
14. The operation of the Land Act and the Fisheries Act and the Minister’s
authorization and regulation of the Salmon Farms has infringed and interfered with the Class’
Fishing Rights by limiting, reducing, or destroying:
(a) their ability to harvest sufficient quantities of the Wild Salmon to satisfy their
sustenance, food, social, and ceremonial needs;
(b) their ability to harvest their preferred stocks or runs of the Wild Salmon;
(c) their ability to harvest the Wild Salmon at their preferred times;
(d) their ability to harvest the Wild Salmon using their preferred means;
07038-001\0052 – 5 –
(e) their ability to harvest the Wild Salmon in their preferred places;
(f) their ability to manage and preserve the habitat required by Wild Salmon; and
(g) their ability to manage, preserve, and control the Wild Salmon stocks in
accordance with customary law.
15. In addition, with respect to those members of the Class who have Fishing Rights
pursuant to the Douglas Treaty, the Province’s authorization and regulation of the Salmon Farms
interferes with their treaty rights “to carry on [their] fisheries as formerly”.
16. The Province’s infringement of the Fishing Rights of the Class is a violation of
s.35 of the Constitution Act and, with respect to the members of the Class with Treaty Rights, is
beyond its legislative jurisdiction.
17. Further, sections 11(2) of the Land Act and sections 13(5) and 14(2) of the
Fisheries Act are of no force and effect because these provisions confer on the Minister the
discretion to authorize salmon aquaculture and this discretion is not structured to accommodate
the Fishing Rights of the Class
Remedies
18. As a direct result of the unconstitutional infringement of the Fishing Rights, the
Class has suffered loss and damages including, but not limited to:
(a) general damages for the loss of their ability to exercise a constitutionally
protected right which provides for a source of food, sustenance and livelihood,
and is of cultural, social and economic significance;
(b) the costs of purchasing or otherwise procuring, and transporting food to replace
the Wild Salmon that are not available;
(c) costs arising out of the lost ability to exercise the Fishing Rights at their preferred
times, using their preferred means, in their preferred places; and
(d) the loss of the cultural, ecological, and spiritual integrity of the Wild Salmon
habitat and fishing sites, including their ability to maintain cultural practices
related to the Wild Salmon harvesting, including traditional management of the
Wild Salmon.
19. The Province and the Minister continue to authorize and regulate the Fish Farms
in the manner set forth above and this continuing authorization and regulation causes
unconstitutional, ongoing and irreparable harm to the Fishing Rights and gives rise to injunctive
relief.
Wherefore the plaintiff claims:
07038-001\0052 – 6 –
(a) an order certifying this case as a class proceeding and appointing the Plaintiff as
the representative plaintiff under the Class Proceedings Act, R.S.B.C. 1996, c. 50;
(b) a declaration that the KAFN and the other Members of the Class have Fishing
Rights within the Broughton Archipelago;
(c) a declaration that the manner in which the Province has authorized and regulated
the Salmon Farms has contributed to a significant decline in the Wild Salmon
stocks;
(d) a declaration that sections 11(2) of the Land Act and sections 13(5) and 14(2) of
the Fisheries Act are of no force and effect because these provisions confer on the
Minister the discretion to authorize salmon aquaculture and this discretion is not
structured to accommodate the Fishing Rights of the Class;
(e) a declaration that the manner in which the Province has authorized and regulated
the Salmon Farms has infringed the KAFN and other Class Members’ Fishing
Rights in violation of s.35 of the Constitution Act, 1982, and that the permits
authorizing and regulating the Salmon Farms are void and of no force and effect
and/or are constitutionally inapplicable;
(f) an injunction prohibiting the Minister from issuing, renewing, or replacing any
salmon aquaculture permits in the Broughton Archipelago;
(g) a mandatory injunction requiring the Province to remediate the impact of Salmon
Farms on Wild Salmon by restoring Wild Salmon stocks and habitat to the
position that they would have been in but for the Province’s infringement of the
Fishing Rights;
(h) damages and/or compensation;
(i) an order that the relief granted be implemented under the continuing supervision
and jurisdiction of the Court; and
(j) such further other equitable and related relief as to this Court may seem meet and
just.

PLACE OF TRIAL: Vancouver, British Columbia
DATED at Vancouver, British Columbia this 4th day of February, 2009.
J.J. Camp, Q.C.
Camp Fiorante Matthews
Solicitors for the Plaintiff
07038-001\0052 – 7 –
This Statement of Claim is filed by J.J. Camp, Q.C., Camp Fiorante Matthews, 400 – 555 West
Georgia Street, Vancouver, British Columbia, V6B 1Z6. Tel: 604-689-7555.

[admin]

Turtle Island Native Network notes the start of the Get Out Migration -
a protest walk that targets fish farms in British Columbia.


(The Get Out Migration goes from Sayward to Quadra island - Molina Dawson)


'Namgis First Nation ceremony at the Nimpkish River Friday morning
for the group walking into the mountains.
VIDEO: http://www.youtube.com/v/0shrQrlOZV4

MORE . . . 'Namgis send off for walkers . . .
http://www.salmonaresacred.org/blog/island-highway-shut-down-migrators-%E2%80%93-namgis-send

PHOTOS: http://www.salmonaresacred.org/gallery/day-1-namgis-send-blessing-sointula-nimpkish-lake


14 year old Ogwila'ogwa (Molina Dawson from Kingcome Inlet) is part of the walk from Port McNeill to Victoria "in support of eliminating fish farms from our BC waters". (Photo credit: Fred Speck)

"I, for one, am not going to just sit around and watch while our Indigenous wildlife slowly gets picked off, only to be replaced by a bunch of freaky farm fish!"

(Thanks to mom Carla Voyageur for the photo of Molina: It was taken the day she made a presentation to the local Ban operated school in Kingcome Inlet. With the students, she made a school of salmon to travel with her. In the picture, she is holding hers.)


"Fish farms cause a series of harmful problems in our home & territory, such as the continuing decrease in our salmon population, on account of the sea lice! At the rate we are losing our Coho, Chinook & Pink Salmon, we could end up losing them for good! With them, the rest of our wildlife as well, because everything relies on our salmon. Bears, eagles, whales & seals all rely on them as a food source. There are other problems caused by fish farming...All in all, fish farms are just not worth it!" (Molina Dawson)

- - -
After 20 years of expressing concern to governments that won't listen and have shielded Norwegian salmon farms from the laws of Canada, the public of British Columbia is taking to the streets to get industrial salmon farming out of the ocean and away from their wild salmon.

The Get Out Migration is underway following an evening send-off from the fishing village of Sointula.





http://salmonaresacred.org/petition-protect-wild-salmon


"Get Out for Wild Salmon" released on http://www.salmonaresacred.org shows Biologist Alexandra Morton leaving the Meetup River with the young wild salmon and the send off by the Broughton First Nation village Gwa'yasdams Village. "When International companies come in here and lay waste to our territory we have a problem with that," said elected Chief Bob Chamberlin.

VIDEO: http://www.facebook.com/video/video.php?v=422491380258&oid=111365508874859

Anissa Reed of Ocean Aura and one of the planners says, "people absolutely hold salmon sacred. The outpouring to the Get Out Migration of artwork, volunteers organizing awesome events in every town, offering us shelter in their homes is a demonstration of the attachment British Columbians have to wild salmon. We expect thousands to participate."

"Government has ignored its own studies on salmon farming since 1989. This is exactly how we lost the food security, thousands of jobs and hundreds of millions of dollars that the North Atlantic cod brought to Canada. "We in BC do not intend to play out this tragedy again," says Alexandra Morton, "government must support the families dependant on this industry as it is removed from the ocean onto land."

On April 16, 2010, the Department of Justice (DOJ) had to instruct DFO to lay charges against Norwegian fish farm company Marine Harvest, for unlawful possession of wild salmon and herring. "This offence was reported to DFO last year, why did it require the DOJ to lay a straightforward charge?" asks Morton. "If we want wild salmon, British Columbians need to send government a very clear message this nonsense is over, get salmon farms out of the ocean and let Canadians reinvent this industry on land."

The Get Out Migration has spread to other towns. For details http://www.salmonaresacred.org/itinerary

There will be public events scheduled in:
- Quadra Island (27th April)
- Campbell River (28th April)
- Courtenay (29th April)
- Fanny Bay (30th April)
- Big Qualicum River (1st May)
- Qualicum Beach (2nd May)
- Lantzville (3rd May)
- Nanaimo and Gabriola Island (4th May)
- Ladysmith (5th May)
- Duncan (6th May)
- Sidney (7th May)
- Victoria (8th and 9th).

Other Migrations around BC are taking place in:
- Lillooet (22nd April)
- Adams River (24th April)
- Tofino (25th April)
- Prince George (3rd May)
- Lumby (8th May)
- Paddle for Wild Salmon down the Fraser River leaving Hope on 28th April and arriving in Sidney on 7th May.

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Contact: Alexandra Morton 250-974-7086
- - -

Walk For Wild Salmon!

WALK FOR WILD SALMON FROM CLAYOQUOT SOUND

Hundreds of people from all over British Columbia are preparing to participate in the "Get Out Migration", a walk from their home ports to Victoria in support of our wild Pacific salmon, arriving in Victoria on May 8th, Mother's Day, for a rally at the Parliament Buildings.

In a massive walk relating to the migration of the new wild salmon smolts moving out of their home rivers into the marine waters en route to the open ocean this spring, people are demanding the protection and enhancement of the remaining wild salmon of B.C.'s coastal waters.

A walk from Tofino to Victoria is being undertaken by Cosy Lawson, along with her 11 year old daughter, Laterra and others from this area, leaving from Tofino's Village Green at noon on April 25th, after the annual Earth Day pancake breakfast.

Our wild salmon are an indicator of the health and well being of our coast and wild salmon are in trouble in Clayoquot Sound. In 1982, Sockeye salmon in Clayoquot Arm numbered 80,000. This past year, only 16 Sockeye were counted spawning on those shores.

Much of Tofino’s tourism is based on our wild salmon. Whale watching, bear watching and other wildlife viewing, sports fishing, adventure tourism, river expeditions, etc. are connected to and based on this species. Whales, bears and eagles are showing signs of starvation.

Scientific investigations into the loss of numbers of wild salmon points to fish farm pollution, disease, sea lice and other predation due to locations of farms on the migratory route to the open ocean from the rivers where wild salmon are hatched. Sea lice and disease from fish farms have decimated wild fish populations and left communities destitute wherever the farms have been introduced in other parts of the world.

"As a community based a great deal on tourism, we cannot trade our wild salmon for farmed ones so a company in Norway can make a fortune, leaving our waters polluted , families without a major food source and our livelihoods gone." ...C. Lawson

The wild salmon counts in Clayoquot Sound are declining in such a drastic way that we cannot wait any longer to protect our wild salmon and our coast. Any factor detrimental to our wild salmon must be curtailed to protect and ensure that present and future generations are healthy and survive.

For more information, contact:

Cosy Lawson at 250 726-8777 Email: quoashinis@hotmail.com