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Fish-farm hearing tied in constitutional knots Add to ...

It was standing room only when the Supreme Court of British Columbia convened yesterday to hear a petition challenging the legal authority of the provincial government to regulate fish farms on the West Coast.

In his opening remarks, lawyer Gregory McDade said the issue of aquaculture and fish farms and their impact on wild Pacific salmon was one of the most contentious in the province. However, he insisted, this case would not be a referendum on how sea lice affect wild fish stocks, but a constitutional question on whether the federal or provincial governments have the final authority over tidal waters. If it is found that the authority resides with the federal government, Mr. McDade said, this case could have ramifications reaching far beyond B.C. and its waters, particularly in New Brunswick, which faces similar issues.

At issue is whether the federal government acted outside its authority when issuing a 1988 memorandum of understanding, effectively ceding control over fish farms to the province. The province does have legal authority over the seabed within its boundaries, but the memorandum of understanding also handed over control of the waters (and the fish within them) above the bed - including those of fish farms. Mr. McDade argued that this removes constitutional protections that declare tidal waters belong to the country as a whole and are not available to be privatized.

Rod Marining, vice-chairman of the British Columbia Environmental Network and co-founder of Greenpeace, said that declining wild salmon stocks were having a devastating effect on other wildlife, with reports of starving grizzly bears and orcas.

"This will have a dramatic effect of forcing responsibility," he said of the petition. "Right now, if you try to go after a minister, they pass the buck from federal to provincial and back again. The buck has got to stop somewhere."

The petition was filed by a coalition of scientists, commercial fishermen and environmental groups who are concerned that their scientific data are being ignored.

They hope that by forcing control of fish farms back under one regulatory authority, it will be easier to campaign for the protection of wild salmon.

This year, wild salmon numbers in the Fraser have plummeted. Earlier this month, it was announced that the pink salmon stocks in B.C.'s Broughton Archipelago had collapsed. In one key indicator stream, only 19,000 spawners have been counted this year, compared with 264,000 in 2007.

Several hundred dollars to finance the petition was raised by a public appeal to sponsor a fish fry at $20 a person.

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