Salmon farmer seeks punitive damages from ex-fisheries minister Joyce Murray
Cermaq Canada sues over 'predetermined' decision to keep BC sites closed
Salmon farmer Cermaq Canada is suing former federal fisheries minister Joyce Murray over what it alleges was her predetermined decision not to allow it to re-open sites in the Discovery Islands in British Columbia.
Canada’s current fisheries minister and the country’s Attorney General are also listed as defendants in the action by Cermaq, which claims it has been deprived of millions of dollars in profit, incurred costs, and had the value of its assets undermined as a result of unfair and unreasonable decisions of the minister.
It is seeking general damages; special damages; aggravated and punitive damages; compensation for constructive expropriation; and costs.
Three Cermaq farms were among 19 Discovery Islands sites that were ordered to be closed by June 2022 by Bernadette Jordan - Murray’s predecessor as fisheries minister - in December 2020. That decision was later set aside by a judge, the Honourable Madam Justice Heneghan, who ruled it was procedurally unfair and unreasonable.
Flawed consultation
In the civil claim filed with the Supreme Court of British Columbia earlier this month, Cermaq says that after the Heneghan ruling in April 2022, it reasonably expected that it was entitled to apply for renewals of its aquaculture licences for the Discovery Islands and for transfer licences into those farms.
Instead of immediately reinstating the licences, Murray put off the decision until January 2023, so she could be informed by a wider consultation process about BC salmon farming taking place between July and December 2022. Among other things, Cermaq argues that contrary to Murray’s promise, the consultation was not fair or comprehensive and did not offer Cermaq and First Nations the opportunity to be heard.
In January 2023, Murray delayed her decision about the Discovery Islands farms again until February 17. Cermaq says the second delay was made by Murray “in order to seek to justify her predetermined outcome to close aquaculture in the Discovery Islands”.
Didn't engage
Cermaq says it provided a proposal for its three Discovery Islands sites: Brent Island, Venture Point and Raza Island. The proposal included, among other things, its agreements with, oversight by, and support and consent from Wei Wai Kum and Klahoose First Nations, in whose traditional territories the sites are located. It alleges that Murray “did not grapple with or engage with Cermaq about it”.
Cermaq adds that the Wei Wai Kum and We Wai Kai First Nation submitted a related proposal to Murray setting out their vision of the future for aquaculture in the Discovery Islands, including Wei Wai Kum and We Wai Kai First Nation’s support for Cermaq’s Brent Island and Venture Point facilities. Murray “did not acknowledge, grapple with, or engage with Wei Wai Kum and We Wai Kai about the proposal”.
The fish farmer claims that Murray had decided to not issue aquaculture licences regardless of anything she heard or any submissions she received during the 2022 consultation.
Email from aunt
According to Cermaq’s claim, during the consultation period, on December 8, 2022, Murray received an email from her aunt, which was sent at the request of her aunt’s friend to “put a word in [Murray’s] ear” in support of a decision to remove fish farms from coastal British Columbia.
On December 9, 2022, Murray responded to her aunt, stating that she was “not waffling” and noting that “the courts struck down the previous minister’s move to close farms in the Discovery Islands, a big step backwards, creating further complexity for me”.
She further stated that her “difficult assignment… regarding both Discovery Islands and the broader transition… is not helped by the fact that DFO’s (Department of Fisheries and Oceans) science division has done a formal and comprehensive peer-review process to assess the research and came to the conclusion that aquaculture operations pose minimal risk to wild salmon”.
Murray also noted she was aware of some scientists and anti-aquaculture activists that did not agree with DFO’s conclusion regarding risk.
Memos from deputy
Cermaq’s claim points out that on January 16, 2023, a deputy minister sent a memo to Murray which concluded that the DFO does not have a basis to treat the aquaculture licences in the Discovery Islands differently than in the rest of British Columbia.
Eight days later, the deputy minister finalised another memo recommending that Murray should approve all aquaculture licences in the Discovery Islands until June 2024 to allow for future alignment of subsequent licences with the direction that would be provided in the federal government’s plan to transition BC farms to closed containment.
Cermaq alleges that after receiving the memos, it became clear to Murray that the results of 2022 consultation did not support her predetermined outcome, so she sought and received submissions from external scientists, activists and environmental non-governmental organisations known to be opposed to aquaculture for the specific purpose of receiving submissions to justify her predetermined decision to not re-issue the Discovery Islands licences.
'Unlawful' basis for decision
“DFO did not participate in the meetings held with those known to be opposed to aquaculture and Minister Murray did not engage the DFO or CSAS (the government’s science advisory service) regarding the submissions she received during this period as she knew that DFO and CSAS would contradict or correct such submissions,” alleges Cermaq.
“Despite knowing that it was unlawful and contrary to her obligations as Fisheries Minister, Minister Murray based her decision on the submissions she sought from the external scientists, activists and environmental non-governmental organisations opposed to aquaculture.
“Neither Minister Murray nor DFO notified Cermaq of these additional meetings or submissions or gave Cermaq an opportunity to respond to them.”
Read Cermaq's full claim here.
