Precaution, Sub-Delegation and Aquaculture Regulation: Morton v Canada (Fisheries and Oceans)

Abstract

The regulation of aquaculture is a contentious issue. This is partly because aquaculture poses a health risk for wild fish by bringing diseases in their ecosystems when farm fish are transferred from their hatchery to a fish farm. Such transfers are regulated by Part VIII of the Fishery (General) Regulations. Morton v Canada (Fisheries and Oceans) is the first decision interpreting and applying s 56 of the Regulations, which establishes conservation and protection norms for the issuance of transfer licences. The decision is also a step forward in the integration of the precautionary principle in Canadian law. This case comment looks at the level of deference accorded to the Minister in interpreting and applying s 56. It examines the place of the precautionary principle in a situation with gaps in the evidence, scientific uncertainty, and a regulatory regime aimed at avoiding risks. It also analyses the judge’s reasonableness analysis of the impugned licence. Finally, it considers if private parties, specifically the industry, have a place in determining if fish transfers should happen, through the issue of improper sub-delegation of discretionary power.

Keywords: environmental law, administrative law, fisheries, aquaculture, precautionary principle, sub-delegation

JEL Classification: K32, K23