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Report: FLR Complied with Disclosure Rules in Salmon Die-off

in Analysis by

A mass die-off of salmon in fish pens on the south coast of Newfoundland made waves in news headlines last October. But yesterday, a report into public disclosure of information by the Department of Fisheries and Land Resources released by the province’s Office of the Information and Privacy Commissioner clearing the Department of any wrong-doing, scarcely created a ripple.

Gerry Byrne, the Minister of Fisheries and Land Resources summarized the report’s main finding yesterday in a series of tweets. “Appreciate having an Independent Officer of the Legislature confirm no basis for mandatory disclosure due to no evidence of health or environmental risk,” the Minister posted. He added: “In my own history as a parliamentarian, I have never experienced an oversight Office conclude an investigation by saying ‘no recommendations’ to offer or required as the situation was well handled.”

Commissioner Michael Harvey’s report concludes “I do not have any recommendations to make to the Department” (section 32, pg. 12). But Harvey also offers considerations for future public disclosure measures and the Department’s duty to document.

First, a recap of the events leading up to this investigation.

A Brief History

In fall 2019, images of vessels pumping pink slurry into Fortune Bay spurred questions about the potential gravity of the unfolding situation at some salmon farms on Newfoundland’s south coast. The massive die-off event occurred at Northern Harvest Sea Farms, a subsidiary of Norwegian-owned Mowi ASA, a global seafood company valued at
€4.1-billion (roughly CA $6.3-billion), employing nearly 15,000 workers across 25 countries—and the world’s largest producer of farm-raised Atlantic salmon. On October 11, 2019, the company announced 2.6-million salmon had died between late August and early September. Those numbers, how quickly the die-off happened, and the layers of pink sludge accumulating on the seafloor and coastline, contributed to concerns about the potential environmental, health and safety implications.

Since word of the die-off only reached the public a month after-the-fact, more questions arose over government regulation and oversight in the province’s growing aquaculture industry. When were public bodies aware the event had happened? Did they have information about any potential harms? And if so, why had they not disclosed the event to the public immediately?

Multiple provincial and federal public bodies became involved with actions taken against the ocean-based farming company—to halt its operations and more strictly monitor the situation. Meanwhile, NDP MHA Jim Dinn contacted the Office of the Information and Privacy Commissioner on October 24, 2019, questioning the Department of Fisheries and Land Resources’ obligation to publicly disclose the mass mortality event. By October 30, 2019, the Commissioner commenced his investigation as per section 9(3) of the Access to Information and Protection of Privacy Act, 2015. As the Commissioner indicates, the Act “requires public bodies to disclose information in their custody or control about a potential threat to the environment or human health or safety when it is in the public interest to do so” (section 3, pg. 2).

The original investigation included two other provincial Departments: Service NL, which deployed Occupational Health and Safety when a diver investigating the fish pens was injured in early October; and Municipal Affairs and Environment, which deployed its Pollution Prevention Division to ensure the dead salmon would be disposed in an acceptable manner.

But it was the Department of Fisheries and Land Resources that held responsibility for public disclosure related to ATIPPA, 2015 insofar as 1) whether there was any evidence of harm to the environment or to the health and safety of the public; and 2) whether there was clear public interest in disclosing information about such harm. This formed the basis of the two-part test the Department used to assess its public disclosure obligations (as per the report, “Minister Byrne indicated that he was considering public disclosure but he decided not to because of ATIPPA, 2015,” section 26, pg. 10) and the Commissioner’s investigation.

The Report

In his report (dated April 17, 2020 and released April 21), the Commissioner’s main finding was “the Department did not have information in its possession about a risk of significant harm to the environment or to the health or safety of the public which it would have been obliged to disclose” (Summary, pg. 1). While the report offers no formal recommendations, the Commissioner presents a number of considerations:

  • Public disclosure measures ought to be proactive, based on public interest versus legislative requirements. (pg. 11) The Commissioner reported the Department’s new policy requiring companies to notify the Department and public when similar die-off events occur was a “welcome step…to introduce greater transparency in a major industry” (section 28, pg. 11). Previously, companies were required to report only when penned fish escaped. However, the Commissioner also noted: “A public body should not, and cannot, rely on disclosure by a private party in place of its own mandated disclosure if it has relevant information in its own control or custody. Furthermore, as a matter of general policy and good governance, public bodies are always encouraged to proactively disclose information when it is in the public interest to do so, regardless of whether it is required to disclose that information” (section 29, pg. 11).
  • The Department has a duty to document. (pg. 11-12) The Commissioner noted the Department did not have written documentation of its briefings (e.g., Ministerial briefings), instead relying on verbal updates. In this section, called “Duty to Document,” the Commissioner specifies: “had the Department better documented its response to the mortality and indeed its decision that public notice… was not required, it would have been much easier to reach our conclusion that the Department had acted properly” (section 31, pg.12). Meanwhile, the report presents the facts and related timeline as to when information about the salmon die-off event was known to the Department (see section 14, pg. 6). In summary, the Department was informed by Mowi to a mass salmon mortality event at one of its sites on or about August 28, 2019; by September 3, Mowi reported die-off at six sites. The scale of the die-off event—2.6 million dead salmon—only surfaced on October 11. Throughout the ordeal, the Minister was verbally briefed by departmental staff, who raised no concerns about environmental or human health risks. The primary cause of the die-off was cited as warm water temperatures, forcing fish deeper in the pens, creating overcrowding and an oxygen shortage (in short, the fish suffocated). When it came to clean-up, the Department heard the “pink slurry being pumped from vessels merely represented excess water (which contacted some organic material…)” (section 14, pg. 6), but most of the remains were disposed appropriately (most went to a fishmeal company in Burgeo). Finally, the Department was in contact with federal counterparts. Specifically, the Canadian Food Inspection Agency, which didn’t require the company to report the die-off since it was not infectious disease related; and Fisheries and Oceans Canada, which voiced no concerns regarding potential environmental or health risks.
  • The Department was under no obligation to seek-out further risk-related information. (pg. 7-8) The Commissioner questioned “whether the Department was obligated to seek-out further information that would confirm an absence of any risk” (section 18, pg. 8). However, the Commissioner found: “an obligation to rule-out a risk of harm – while attractive – would be an extremely broad and potentially unending task for a public body,” also noting this investigation was not calling into question “whether the Ministry should have had information about such a risk, but whether it actually had such information” (section 18, pg. 8). The Commissioner found the Department did not have such information.
  • Causes and impacts delivered after-the-fact, ought not dictate Departmental decision-making regarding disclosure. (pg. 8-9) The Commissioner cautions that “To rely solely on later evidence, and exonerate a public body based on the actual occurrence (or non-occurrence) of harm potentially risks creating an incentive for a public body to take a wait-and-see approach and avoid disclosure until harm has actually occurred. However, this does not appear applicable to the present matter or representative of the actions of the Department(section 23, pg. 9)The report cites a brief summary of cause and impacts reviews by Mi’kmaq Alsumk Mowimsikik Koqoey Association (an organization established by the Mi’kmaq First Nation Band (Qalipu) and the Miawpukek First Nation) (“MAMKA”) and Memorial University of Newfoundland’s Marine Institute. “A key conclusion,” writes the Commissioner, “is that there was no evidence that infectious disease was a contributor to the mortality event, except for one site where infectious salmon anemia had caused an increase in mortality earlier, in July and August, 2019.” While the Marine Institute report concluded “an unusual set of natural environmental conditions triggered a series of events that lead [sic] to mass asphyxiation of salmon” (section 21, pg. 9), earlier in the Commissioner’s report, he notes: “The event was not an unusual event, as similar mass mortality events—though perhaps not of the same scale—have occurred in the Newfoundland and Labrador aquaculture industry in the past” (section 17, pg. 7).

Given the public investment in aquaculture, and known public concerns about this industry (which Fisheries and Oceans Canada cites as “escapes of farmed salmon, food safety, habitat interactions, water quality, navigational safety and aquatic animal health”), it is arguably in the public interest to know this information more readily. A deeper dive into the cause and impact reports (by MAMKA and Marine Institute) also offers considerable ways to improve regulation and oversight of aquaculture in the province. But as per existing public disclosure regulations, everything was above board.

All told, the Department of Fisheries and Land Resources complied with its obligations.

Jenn Thornhill Verma is a freelance journalist and author of Cod Collapse: The Rise and Fall of Newfoundland’s Saltwater Cowboys.

Photo via the Atlantic Salmon Federation.

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