In the landmark decision of Morton v. British Columbia (Agriculture and Lands) (9 February 2009) the British Columbia Supreme Court held that the Government of British Columbia had no jurisdiction to regulate fish farms throughout the province and declared that the authority to do so was vested solely in the federal government, under section 91(12) of the Constitution Act, 1867.

The constitutional challenge arose in response to the provincial government’s decision to renew a fish farm license of Marine Harvest Inc. Canada, which operates a twenty-hectare fish farm containing approximately 600,000 Atlantic salmon in the Broughton Archipelago, off the coast of British Columbia. The petitioners, environmental activists, alleged that the license should not have been renewed because of the environmental damage caused by fish farms, including the proliferation of sea lice, chemical waste, and diseases in surrounding waters, and the disruption of migratory routes of Pacific salmon.

Since 1988, fish farms in British Columbia had been regulated solely by provincial legislation, pursuant to the terms of an agreement between the Province and the federal government. The court held, however, that the agreement did not validly delegate the constitutional authority of Parliament to grant fish farm licences to the Province.

The court rejected the Province’s contention that fish farms (or “aquaculture”) did not constitute a fishery, but instead agriculture, a subject matter over which the Province had exclusive jurisdiction under section 95 of the Constitution Act, 1867. The court also rejected the Province’s argument that it had jurisdiction to issue fish farm licences pursuant to its constitutional powers over the management of lands, property and civil rights, or matters of a local and private nature.

The court suspended its ruling for twelve months to provide the federal and provincial governments adequate time to establish a constitutionally valid regulatory regime over fish farms throughout the province. Given this result, it also denied the petitioner’s application for a declaration that British Columbia did not have jurisdiction to renew the licences at issue in the proceeding.