Monday, 15 October 2018

Precautionary Principle has a Defined Approach

Here is a thorough look at the precautionary principle, as applied to getting fish farms out of the water on the grounds they are detrimental to wild salmon. The reason for using the principle is that it doesn't matter how much science is done, fish farms will always say that the science done doesn't prove anything and that more science is required.

Doing science is thus a trap, because a decade will go by and still fish farms, and DFO, will say there is not enough science. Hence the reason for using the precautionary principle to save wild salmon. one example is that fish farms don't agree that lice cause problems even though there have been 30 such studies in BC, and 800 world wide, and that lice cause the greatest loss of farmed fish around the world. And Helge Aarskog, CEO of Marine Harvest says lice are their biggest problem, even though Marine Harvest in BC doesn't agree.

For links to the lice studies, see this post of mine:

There is a good coverage of the issue of precautionary principle in the Agriculture Minister's Advisory Council's Appendix 2 in the report:

Written by Tony Allard - who is a lawyer

He says: "There are constitutional, legislative, policy and international obligations that require the Minister to apply the precautionary principle.The precautionary principle does more than forbid decision makers from using scientific uncertainty as an excuse for regulatory inaction. It requires decision makers to err on the side of caution by anticipating harm and taking protective measures when there is environmental risk, even if there is scientific uncertainty."
The federal government has a constitutional obligation to protect fisheries and oceans. Section 91(12) of the Constitution Act, 1867 gives the federal government jurisdiction over the “Sea Coast and Inland Fisheries”.


"The history of the Oceans Act is important to understanding its legislative intent. By the early 1990s, the cod fishery on Canada’s Atlantic coast had collapsed. The Oceans Act was passed in 1996 to ensure that such a catastrophe never occurred again in Canada. The Oceans Act ext ended Canada’s jurisdiction over marine waters and required an ecosystem approach to the management of the marine environment based on the precautionary principle.

"Sections 29 and 30 of the Oceans Act expressly require the Minister to apply the precautionary principle.

"Moreover, in the Prime Minister’s Mandate Letter to the Minister, the Prime Minister expressly requires the Minister to “[u]se scientific evidence and the precautionary principle, and take into account climate change, when making decisions affecting fish stocks and ecosystem management”.

"In The Uncertain Future of the Fraser River Sockeye(the “Cohen Commission”), Mr. Justice Cohen came to similar conclusion. Mr. Justice Cohen observed that the Federal Court in Environmental Defence Canada v . Canada (Fisheries and Oceans), 2009 FC 878 said that Canada had ratified the United Nations Convention on the Conservation of Biological Diversity (the Convention) and, since the precautionary principle was a main component of that convention, Canada had committed to apply the precautionary principle.

"Canada has also committed to the precautionary principle in several pieces of federal legislation,including the Oceans Act, the Canadian Environmental Protection Act, 1999, SC 1999, c 33, and the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52."

Allard goes on to cite several cases and policy documents that show DFO is to use the precautionary principle.  For example Justice Rennie in Morton, 2016 spells out what is required:

"...although there is a healthy debate between respected scientists on the issue, the evidence, suggests that the disease agent (PRV) may be harmful to the protection and conservation of fish, and therefore a “lack of full scientific certainty should not be used a reason for postponing measures to prevent environmental degradation”: Spraytechat para 31"


"Mr. Justice Rennie’s interpretation al so sits squarely with the classic statement of the precautionary principle by the Supreme Court of Canada in the Spray Tech decision, but it shifts the emphasis away from scientific uncertainty, where the discussion is often focused, and places it back on anticipation and prevention of environmental harm:

In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation."

Allard points out that: "Canada’s Policy for the Conservation of Wild Salmon expressly requires the precautionary principle to be applied with respect to the conservation of wild salmon"

This means it applies to the Wild Salmon Policy.


"The precautionary approach, defined in the Oceans Act as “erring on the side of caution,is a key principle to be applied in the management of ocean activities. Under the Strategy, the Government of Canada is reaffirming its commitment to promoting the wide application of the precautionary  approach to the conservation, management and exploitation of marine resources in order to protect these resources and preserve the marine environment. 142

And, science is needed as a place to start, but not a place to say no: "Before the precautionary approach can be applied, scientific data relevant to the risk must be evaluated through a sound, credible, transparent and inclusive mechanism leading to a conclusion that expresses the possibility of occurrence of harm and the magnitude of that harm (including the extent of possible damage, persistency, reversibility and delayed effect).143"

 And the framework that government must use includes the following: "The application of precaution is distinctive within science-based risk management and is characterized by three basic tenets: the need for a decision, a risk of serious or irreversible harm and a lack of full scientific certainty.145"

Now, fish farms will always say that they have millions invested and the government can't just dump them on land, where is the science? I have pointed out several times that the sewage cost to BC is at minimum, $10.4B and this is vastly higher than the revenue, as measured by BC Stats of $469M. It would pay us well to give them $1m each to set up on land, as that total would be $85 million, given that roughly 85 farms are operating at any time.

"Since the Framework provides a series principles a decision-maker must follow to protect the environment, it is not surprising that the Framework makes it expressly clear that any impact on the assessment of trade occurs only after the decision- maker has determined the level of protection is consistent with society’s values. Accordingly, the Framework’s last principle makes it clear that the impact on trade is to be considered only after the decision to apply precautionary measures has been made"

 The precautionary approach, is summarized this way, rather than the oppposite of fish farms saying the country will never attract investment, that you have to show us 100% proof that w e cause damage, and jobs will be lost, etc.:

"First, a level of protection is chosen so that it is aligned with society’s values. Second, optionsfor protective measures that meet that level of protection are identified. Third, and only after the first two steps, the impacts on trade are assessed and protective measures that may have a lesser effect on trade may only be chosen if they maintain an equal level of protection.151 The decision-maker cannot decrease the level of protection to increase trade. Rather, once society’s chosen level of protection has been determined, the decision-maker can only choose between protective measures that maintain that level of protection. If multiple options for precautionary measures are available that provide the same level of protection, only then can the decision- maker choose the least trade-restrictive option."

 For example, DFO should refuse to let PRV infected smolts be put in the ocean, acting on the precautionary principle, not ironclad science, because fish farms say there is no ironclad science.

In closing, Allard puts it this way: "The precautionary principle does more than forbid decision makers from using scientific uncertainty as an excuse for regulatory inaction. It requires decision makers to err on the side of caution by anticipating harm and taking protective measures when there is environmental risk even if there is scientific uncertainty."

And that the minister must do what is reasonable, not what he thinks is reasonable, but what the situation requires as the most reasonable outcome, such as putting fish farms on land. You may know that my list of on-land fish farm systems now sits at 251 such RAS systems:

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