This case involved a challenge to the constitutional authority of the Provincial Government of British Columbia to regulate the aquaculture industry. The challenge was brought by Alexandra Morton and a number of other interest groups including the Area E Gillnetters Association. Apparently the applicants believed that the existing Provincial legislation would "not protect the environment" and a successful challenge would cause the Federal Government "to fulfill its constitutional obligations" for the protection of the environment (para. 90).
After reviewing the current regulatory regime for aquaculture in British Columbia as well as the the Supreme Court of Canada case of Canadian Western Bank v. Alberta, 2007 SCC 22, the court started its analysis by applying the pith and substance test to the challenged legislation. In doing so, a central issue was whether or not the aquaculture industry was a "fishery" so a to fall under the federal jurisdiction over fisheries under s. 91(12) of the Constitution Act. After reviewing a number of dictionary definitions of the word "fishery", the court found two concise dictionaries that included "rearing" in the definition. The court also concluded that when fish farms harvest fish from their pens that the fish are "caught". Based upon the dictionary definitions and the court’s own view of what the "man on the McDonald bus" would think, the court concluded that the term "fishery" as it appears in the Constitution includes fish farming. Based upon its conclusion that aquaculture is a fishery, the court concluded that the management of aquaculture was with federal jurisdiction.
The court then went on to determine whether the provincial regulation could be upheld under the double aspect doctrine. In doing so it concluded that although the Province had jurisdiction to manage the land beneath the fish farms under s. 92(5) of the Constitution Act, this was not sufficient to give it jurisdiction to manage fish farms. With respect to property and civil rights under s. 92(13), although the Province has authority to regulate fish processing and labour relations applicable to the fishing industry, this did not extend to "regulation and protection of the fisheries" (para. 172). With respect to the Province’s jurisdiction over agriculture (s. 95), given the courts conclusion that fish farming is a fishery, the court would not allow provincial regulation of the aquaculture industry under this heading. It did suggest that the Federal Crown could delegate some of the management functions to the Province by Order in Council as it has done with oyster regulation. However, failing a proper delegation the provincial regulation could not be upheld under the agriculture heading.
The court also rejected attempts to uphold the provincial regulations under the necessarily incidental doctrine and paramountcy doctrine.
In a somewhat surprising move, despite the fact that the Federal Government is not currently regulating the aquaculture industry to any great degree and the fact that the Federal Government chose not to participate in the proceedings (see quote from Kitkatla para. 72-3 in Jim Pattison at para. 207), the court applied the now disfavoured interjurisdictional immunity doctrine to hold (as an alternative finding) that the provincial laws constituted an "interference with the core of a matter within the exclusive jurisdiction of Parliament . . " (para. 190).
The end result was that the court declared all of the challenged legislation either invalid, or inapplicable to the aquaculture industry except to the extent that it purported to regulate the cultivation of marine plants. The court also suspended the implementation of its judgement for 12 months in order to give the Federal Government time to enact legislation to fill the gap left by the provincial legislation declared invalid and inapplicable.
1) See 2009 BCCA 378 where the Canadian Aquaculture Industry Alliance was denied intervener status for an appeal of the trial level decision by Marine Havest Canada Inc.
2) See 2009 BCCA 481 where the BCCA ordered that the Hearings Court reconsider the argument that fish farms and the fish in them are private property in respect of ss. 1(h) and 2(1) of the Farm Practices (Right to Farm) Act.
3) See 2010 BCSC 100 where the Hearings Court reconsidered the matter referred to it by the Court of Appeal and decided it was not necessary to consider whether or not farmed salmon are private property because under a pith an substance test the sections at issue are "inextricably linked to the province’s purported regulatory regime for aquaculture", which had previously been held ultra virus.
Editor’s note: When applying the pith and substance test, the Court applied the old methodology used in the Kitkatla decision of subsuming the interjurisdictional immunity analysis into the pith and substance test, rather than the newer methodology set out in Canadian Western Bank v. Alberta of applying the interjurisdictional immunity test after the court has determined the pith and substance of the matter at issue and determined whether there are any incidental affects. This is curious as the Court cited Canadian Western Bank in its original decision.
In this decision the Court also granted intervener status to the Musgamagw-Tsawataineuk Tribal Council.