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Fish Farm Drops Trespass Lawsuit Against ‘John and Jane Doe,’ but Not Morton

Marine Harvest not suing First Nation members who boarded farm and issued eviction notice.

By Andrew Nikiforuk 13 Jun 2017 | TheTyee.ca

Andrew Nikiforuk is an award-winning journalist who has been writing about the energy industry for two decades and is a contributing editor to The Tyee. Find his previous stories here.

Marine Harvest has narrowed its lawsuit claiming protestors trespassed on a fish farm, abandoning a claim that could involve members of the Dzawada’enuxw First Nation while pressing its lawsuit against biologist and activist Alexandra Morton.

The giant Norwegian corporation had sued Morton and “John and Jane Doe,” the legal term for unidentified individuals, for boarding a fish farm in August, serving an eviction notice and holding a cleansing ceremony.

But Dzawada’enuxw members stepped forward to say they had boarded the fish farm with Morton. And they said they had the legal right to be on the fish farm, established in their traditional territory without their consent.

Marine Harvest’s decision to drop the suit against John and Jane Doe is a “victory” for the First Nation, said well-known Vancouver lawyer Gregory McDade, who is representing the Dzawada’enuxw and Morton.

“The company abandoned their case against the First Nation and conceded their right to be there,” said Gregory McDade.

But Marine Harvest says members of the Dzawada’enuwx were not the target of its lawsuit.

It’s the latest skirmish in a battle over the impact of corporate fish farms on wild salmon populations and other marine life in B.C.’s coastal waters.

For years, Morton has tried to get the federal government to address the impact of viral diseases and sea lice on wild Pacific salmon, impacts amplified by crowding of Atlantic salmon in fish farms along the coast.  

Norwegian scientists, for example, have long established that “salmon aquaculture in open sea cages transfers parasites and diseases from farmed salmon to wild salmonids and vice versa, but little is known about the transfer of pathogens to other fish species.” 

And new research from Ireland has again underscored the impact of sea lice at fish farms on the migration of young wild salmon. The study found that wild salmon returns were cut by more than 50 per cent in years following high lice levels on nearby salmon farms during the smolt out-migration.

Last summer Morton, a long-time critic of Norwegian-based Marine Harvest’s operations, accompanied almost 60 members of Dzawada’enuxw First Nation and neighbouring First Nations as they boarded a Marine Harvest fish farm in the Broughton Archipelago and issued an eviction notice while conducting a “cleansing ceremony.”

The nation issued eviction notices to all fish farms in its territories, saying their people have a sacred duty to protect wild salmon and herring stocks for future generations. 

“Marine Harvest has no authority on our lands,” said Chief Willie Moon in a press release. “You, Marine Harvest, are trespassing... you have never been given the right to be in our territory.”

Shortly afterwards, Marine Harvest sued Morton and “John and Jane Doe” for “occupying, blocking or physically impeding the plaintiffs aquaculture sites” in the Broughton Archipelago and Okisollo Channel.

Vincent Erenst, managing director of Marine Harvest Canada, said at the time that “we cannot stand by and allow individuals to ignore the law and trespass on our facilities.”

The lawsuit alleges that Morton and others ignored demands to leave, “tampered with equipment” and inserted a camera into an open net pen.

A video from the fish farm visit released by Morton shows dense schools of Atlantic salmon apparently suffering from tumours and emaciation. It has been viewed more than 1 million times. 

The Marine Harvest lawsuit did not identify Dzawada’enuxw leaders by name. Instead it referred to “John and Jane Doe and all other persons unknown to the Plaintiff.”

“Clearly the subjects were First Nations but the company didn’t have the courage to sue them directly,” said McDade.

Ian Roberts, public affairs director for Marine Harvest, wouldn’t talk about the decision to abandon the lawsuit against John and Jane Doe and other participants and focus on Morton.

“The Dzawada’enuwx Nation were never named in our trespass and nuisance claim filed against Alexandra Morton. As the case is currently before the courts, we reserve further comment for that venue.”

Last fall three Dzawada’enuxw hereditary leaders from Kingcome Village, Willie Moon, Joe Willie and Farron Soukochoff, identified themselves as the “others” and filed a joint response to the lawsuit with Morton. 

The hereditary leaders argued that Marine Harvest’s fish farms at Glacier Falls and Midsummer Island were within Dzawada’enuxw First Nation territory and that Morton was their guest, “accompanying a Dzawada’enuxw representative who was delivering” an eviction notice to the company’s Glacier Falls operation. 

Marine Harvest filed a motion earlier this month arguing that issues of aboriginal title were not relevant to its trespassing lawsuit and should not be considered by the court.

Morton, Marine Harvest argued, isn’t Indigenous and couldn’t raise issues of aboriginal title in her defence. Jane and John Doe had not been identified as Dzawada’enuxw.

However, the Dzawada’enuxw First Nation argued that they had boarded the fish farm and it was a lawful exercise and use of their own lands. The issue of aboriginal title had to be considered, they said.

Marine Harvest has never entered into a formal fish farm agreement with the Dzawada’enuxw but has done so on other First Nations territory along the coast.

Two days before the scheduled hearing, counsel for Marine Harvest dropped “John and Jane Doe” from the lawsuit.

McDade believes the company dropped Jane and John Doe from the lawsuit because it didn’t want to see the issue of aboriginal title raised in court.

“They cut and ran... The point of the lawsuit has now been lost. The only reason was to prevent further incidents of this type,” he said.

“Having started an injunction against the First Nation and then dropped it, Marine Harvest would be in a tight spot to get another injunction,” McDade said.

The lawsuit against Morton, who describes herself as Marine Harvest’s “most longstanding irritant on the coast,” still stands.

“Between viruses and sea lice, this industry has had a tremendous impact on this coast,” Morton said.

Contrary to industry and government past denials, a new study has found a deadly and durable virus has been causing disease in B.C. salmon farms.

Earlier this year the study, supported by the Department of Fisheries and Ocean’s Strategic Salmon Health Initiative, confirmed that heart and skeletal muscle inflammation (HSMI), the third largest killer of farmed fish in Norway, occurs in B.C. and has caused disease at a fish farm in the Discovery Islands between 2011 and 2013, and possibly at three other farms between 2013 and 2014.  [Tyee]

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