Fish Farm Class Action Derailed by Court of Appeal

The British Columbia Court of Appeal, in a decision released last week, overturned an earlier decision by the British Columbia Supreme Court to certify a class action testing the effects of open pen in water fish farms on wild salmon stocks.  The claim sought to certify a class of all "aboriginal groups" who held or asserted aboriginal fishing rights in the Broughton Archipelago in a claim alleging that the operation and authorization of open pen fish farms infringed those rights.  In a bold move about a year ago Justice Slade certified this class in the face of strenuous opposition by the two governments and (at the appeal) the industry.

The Court of Appeal, in a complex ruling, dismissed this action for reasons that require an intertwined analysis of aboriginal law and class action principles.  In essence though the Court held that the issues created by answering the question of "who are the aboriginal groups who hold fishing rights" involve such complex problems that the proposed class is not capable of being certified.  In essence the Court relied upon the mess that has been created by the failure of the courts and the governments to devise a mechanism to recognize First Nations to say that these First Nations could not be brought together to challenge the development of a controversial industry in one small area of British Columbia.  This will ultimately be a productive force for challenging government decisions but there are years of litigation ahead to really develop the jurisprudence in this area properly.

This case highlights the challenges that will face people seeking to use the court system to protect the environment face.  For the most part ordinary citizens do not have substantive rights to a healthy or clean environment.  Indeed, when ordinary citizens in the early part of the twentieth century began to use property rights to ward of polluting industries (using the tort of nuisance) the legislatures and Parliament largely overran these rights by legislating away the rights of property owners (this is essentially why a group challenge to noise pollution at YVR failed a few years ago, despite the trial court's finding that there was a nuisance -- Sutherland v. Vancouver Airport Authority 2002 BCCA 416).  Even aside from these legislative issues, the recent decision of the Ontario Court of Appeal in Smith v. Inco 2011 ONCA 628 illustrates the formidable hurdles that ordinary property owners face in trying to advance environmental claims rooted in tort law.  Ordinary citizens largely did not have a chance as public nuisances can only be advanced by the Attorney General.

Aboriginal people do have special rights to harvest resources which are protected by the Constitution.  These rights cannot be legislated away at the whim of the government but as this case illustrates they create their own challenges.  Aboriginal litigation has been expensive to press ahead and often takes years.  As a result there is often nothing left to fight over by the time the courts render a decision.  Courts have pushed back against governments being overly aggressive in taking advantage of this (by issuing injunctions, requiring consultation and making advance costs orders) but despite this at times aboriginal rights and title litigation seems to be modeled on a Bleak House approach to justice.  This case demonstrates how we have gotten ourselves in a position where we (the non-aboriginal people) cannot even figure out how to see aboriginal people, much less do justice by them.

The best and most sensible place for many of these issues to be dealt with is in a sensible environmental assessment process.  Many of the controversies surrounding fish farms flow from the reality that there has never been a real public transparent environmental assessment of the operations of open net fish farms situated in sensitive salmon bearing regions.  Instead the industry has largely been able to grow in a piecemeal basis to a point where now there are very large vested interests opposed to really taking a hard look at what is going on.  With the Federal government's move to further limit the application of the Federal environmental process and the Province's commitment to rarely engaging in formal environmental assessment, it is unlikely this will change any time soon.  Fundamentally this illustrates how in the end the courts and bureaucratic processes are not a substitute for public engagement in political processes.  All of these issues will only be addressed by the governments once there is a perception that there is a public expectation that they will be addressed.  The courts have a role in creating momentum around this but the hard work of political engagement has to be done in the public through the press, parties and polls.