Canadian Sablefish Association v. Canada (Minister of Fisheries and Oceans), 2004 FC 983

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2004 FC 983

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Text of decision

Date: 20040713

Docket: T-1228-04

Citation: 2004 FC 983

BETWEEN:

CANADIAN SABLEFISH ASSOCIATION

Applicant

and

THE MINISTER OF FISHERIES AND OCEANS AND THE

DIRECTOR GENERAL OF THE DEPARTMENT OF FISHERIES AND OCEANS,

PACIFIC REGION, SABLEFIN HATCHERIES LTD. and

TOTEM OYSTER LIMITED and OMEGA PACIFIC SEAFARM INC.

Respondents

and

THE MINISTER OF AGRICULTURE, FOOD AND FISHERIES

(BRITISH COLUMBIA)

Intervener

REASONS FOR ORDER

(Delivered orally and subsequently written for clarification and precision)

HARRINGTON J.

[1] Aquaculture is an important industry in British Columbia. It sometimes, as in this case, involves transferring fish from one body of water to another, from a hatchery to a fish farm, which raises environmental concerns in some quarters. This is an application for an order in the nature of an interlocutory injunction restraining the Minister of Fisheries and Oceans and the Director General of the Department of Fisheries and Oceans from authorizing or issuing a permit or license to transport hatchery sablefish from an inland hatchery operated by the respondent Sablefin Hatcheries Ltd. for release in the ocean at fish farms operated by the respondents Totem Oysters Limited and Omega Pacific Sea Farms Inc. on the grounds that neither have had an environmental assessment completed under the Canadian Environmental Assessment Act, R.S.C. 1992, c. 37. This application is pending the hearing of an application for judicial review. Alternatively, the applicant seeks an order that Sablefin Hatcheries Ltd., Totem and Omega be enjoined and restrained from transporting and/or releasing hatchery sablefish into the ocean until an environmental assessment is conducted under the said Act, or until further order of this Court.

[2] An application for an interlocutory injunction brings to force the well-known tripartite test set out in many decisions of the Supreme Court. I refer in particular to RJR- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. page 311. In order to succeed the applicant must establish all of three things: the applicant must establish that there is a serious underlying issue to be tried; secondly, if the injunction is not granted, irreparable harm will be suffered by it; and thirdly, that the balance of convenience rests in its favour. As to the serious issue, the Minister of Fisheries and Oceans and the Director General of the Department of Fisheries and Oceans note that the threshold is fairly low and were willing to concede that point for the sake of argument today. However, I need make no comment on whether there is a serious issue and as to whether an environmental test had to be carried out because I am satisfied that the applicant will suffer no irreparable harm.

[3] On the one hand, the evidence advanced on behalf of the applicant is speculative in nature. The executive summary of a report it commissioned entitled "A Preliminary Assessment of the Issues Associated with Sablefish Aquaculture" concludes that information currently available is not adequate to assess the potential impact of sablefish aquaculture on either the wild resource or the British Columbia aquaculture industry.

[4] On the other hand, we have evidence from C.K. Angus of Totem that his company has been involved in the commercial rearing and harvesting of sablefish since 1999. In excess of 20,000 sablefish have been introduced into its fin fish site. This cultivation has been pursuant to aquaculture licenses that have been issued to it since 1999. It seems to me that if this injunction were to be granted that irreparable harm could well be suffered by the commercial respondents to this application and indeed by other hatcheries and fish farms. Consequently, I am dismissing the application with costs.

[5] It is not necessary to consider the balance of convenience or the other points raised against the application.

"Sean Harrington"

Judge

Ottawa, Ontario

July 13, 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-1228-04

STYLE OF CAUSE: CANADIAN SABLEFISH ASSOCIATION

and

THE MINISTER OF FISHERIES AND OCEANS AND THE DIRECTOR GENERAL OF THE DEPARTMENT OF FISHERIES AND OCEANS, PACIFIC REGION, SABLEFIN HATCHERIES LTD. and TOTEM OYSTER LIMITED and OMEGA PACIFIC SEAFARM INC.

and

THE MINISTER OF AGRICULTURE, FOOD AND FISHERIES (BRITISH COLUMBIA)

HEARD VIA VIDEO CONFERENCE BETWEEN OTTAWA AND VANCOUVER

DATE OF HEARING: JULY 12, 2004

REASONS FOR ORDER : HARRINGTON J.

DATED: JULY 13, 2004

APPEARANCES:

Raymond Pollard FOR APPLICANT

Michael Segelken

Rob Whittaker FOR RESPONDENT

John Clark Minister of Fisheries and Oceans

Rory Lambert FOR RESPONDENT

Sablefin Hatcheries Ltd.

Marilyn Sandford FOR RESPONDENT

Peter Ritchie Totem Oysters Ltd.

Dennis Doyle FOR INTERVENER

SOLICITORS OF RECORD:

Richards, Buell, Sutton FOR APPLICANT

Vancouver, BC

Morris Rosenberg FOR RESPONDENTS

Deputy Attorney General of Canada Minister of Fisheries and Oceans

Dinning, Hunter, Lambert & Jackson FOR RESPONDENT

Victoria, BC Sablefin Hatcheries Ltd.

Ritchie, Sandford FOR RESPONDENT

Vancouver, BC Totem Oysters Ltd.

Office of the Attorney General of BC FOR INTERVENER

Victoria, BC