Wild for Salmon: Homalco and Tla’amin Nations appeal decision that would sideline them from fish farms challenge
When four salmon farm companies filed a legal challenge to Canada’s decision to phase out open-net salmon farms in the Discovery Islands, Homalco and Tla’amin Nations stepped up. The Nations, known together as Sister Nations, applied to join the proceedings: with all five species of Pacific salmon in serious decline in their territories, Homalco and Tla’amin took action to ensure the Court would consider the serious impacts of fish farms on their Aboriginal rights to fish, and on their culture.
Unfortunately, Federal Court Justice Mandy Aylen denied Homalco and Tla’amin Nations’ application to join the case either as a party (their preferred outcome) or even as an intervenor. If Justice Aylen’s decision stands, Homalco and Tla’amin will be barred from participating in a judicial process that directly affects their territory, resources, and culture.
Homalco and Tla’amin are appealing this decision.
If the situation had been reversed — i.e., if a First Nation had filed a judicial review against Canada over a resource project — that project’s proponent would almost certainly have been allowed to join the lawsuit. In our 13-year history, RAVEN has supported five judicial reviews brought against Canada and/or B.C. by First Nations. In each and every one of them, the companies affected — Enbridge, BC Hydro, Petronas, Kinder Morgan, and Coastal GasLink — were allowed to join as parties. More broadly, representatives of industry associations, such as the Canadian Association of Petroleum Producers, are routinely granted intervenor status in environmental or First Nations litigation dealing with resource extraction.
Time’s up for frankenfish
Motivated by a growing chorus of Indigenous-led and other voices raised on behalf of wild salmon, the Canadian government has taken action to shut down open-net fish farms in an area that is critical to the survival of wild salmon. Now, the Sister Nations want to lend their expertise, Indigenous knowledge and clout as salmon stewards to the judicial review of the phase-out decision, a last-ditch attempt by the salmon farming industry to try and overturn the ban.
While it is making a principled decision in the Discovery Islands, Canada continues to allow fish farms in other areas of B.C. Thus compromised, the government is unlikely to bring forward comprehensive evidence about the harms of industrial salmon farming for fear of setting a precedent that would facilitate the removal of ALL open net farms from B.C. waters. Instead, it is the Homalco and Tla’amin who can produce research and reference their own lived experience to support the eradication of fish farms from their waters, forever.
Judge admits mistake
The decision excluding Homalco and Tla’amin is a textbook example of institutional or systemic racism: discrimination caused not by personal bias but by “the way things work” in our legal system and government. A number of interlocking systems and practices led to Homalco and Tla’amin being sidelined from a process whose outcome will affect them more than any non-Indigenous person or group: the fate of wild salmon in their traditional territories.
In an unusual twist, Justice Aylen admitted, in a different decision issued in August, that she got it wrong on Homalco and Tla’amin. The August decision granted intervenor status to several Indigenous umbrella organizations, including the Union of B.C. Indian Chiefs and the B.C. Assembly of First Nations. Despite this admission, a judge is unable to reverse her own previous decision. Because of this, Homalco and Tla’amin will still be out of pocket, paying to appeal a decision that should never have been made.
A lack of expertise in Aboriginal law
Part of the issue is what the judge knew or did not know about the context when she made the decision. Many judges come to the bench from areas of the law (such as, for example, commercial or family law) where they have not been exposed to the growing body of jurisprudence that in recent years has further defined and strengthened Aboriginal and treaty rights.
Another issue here is Canada’s, shall we say, split-personality attitude to salmon farms.
On the one hand, Fisheries and Oceans Minister Bernadette Jordan did make the wise decision to phase out salmon farms in the Discovery Channel. The decision flowed from Minister Jordan’s consultation with Indigenous rights-holders, including Homalco and Tla’amin Nations, and was intended as “accommodation” of these Nations’ constitutionally-protected Aboriginal rights. But this decision only applies to the Discovery Channel; meanwhile, Canada continues to support salmon farming in other parts of the province, notably on the west coast of Vancouver Island.
DFO: A fish with two heads
The Department of Fisheries and Oceans (DFO) has a long history of serving two masters – promoting the salmon farming industry while paying lip service to salmon conservation. Federal judges struck the DFO’s licensing policies in 2015, and then again in 2019, for failing to adhere to the precautionary principle and to consider the health of wild Pacific salmon. Yet, by refusing to extend the ban to the entire B.C. coast, the DFO defiantly continues to deny or underplay the risks salmon farms pose to wild salmon.
Now that the salmon farming industry is taking the government to court, will the DFO pull out all the stops to strongly defend Minister Jordan’s decision? We won’t hold our breath to see much scientific evidence being led by Crown counsel to show that the decision to phase out salmon farms makes good sense as a conservation measure. It is much more likely that the feds will hang their hat on consultation, relying on Homalco and Tla’amin Nations’ constitutional rights to carry the day.
Which brings us back to where we started: in the fight between well-heeled corporations and the equally well-resourced federal government, the burden of protecting wild salmon and all that depend on them falls once again on First Nations.