Sablefin waste appeal denied by provincial board

By Gail Sjuberg

A ruling against the appeal of a temporary waste management approval for a Walker Hook sablefish hatchery has given the proponent cause to cheer while opponents return to the drawing board. The Environmental Appeal Board (EAB) dismissed all grounds for appeal made by three different groups opposed to the 15-month approval issued by the Ministry of Water, Land and Air Protection regional manager in September of 2003. The board's 50-page summary of submissions and decisions was released Thursday.

"This decision completely exonerates Sablefin Hatcheries of malicious charges of pollution and desecration of a First Nations burial site," said Sablefin Hatcheries Ltd. president Gidon Minkoff in a statement issued Friday.

Donna Martin, speaking on behalf of Salt Spring Island Residents for Responsible Land Use, one of the three appellants, described the EAB decision as "extremely sad." "The Penelakut First Nation were asking for respect for the graveyard of their ancestors. The residents were asking for respect of a ecologically sensitive site and to have it treated with integrity and as a burial site."

The appeal board, chaired by Alan Andison, heard evidence and arguments from the appellants, proponents, government agencies and expert witnesses at Victoria hearings in March and May of this year. It was charged with determining if:

• the approval issuance went beyond the province's constitutional jurisdiction;

• the decision was made using inadequate or deficient information or with fettered discretion;

• the effluent was harmful to the environment or human health;

• Penelakut Elders were adequately consulted;

• the hatchery effluent unjustifiably infringes the aboriginal rights asserted by the Elders.

Sablefin Hatcheries Ltd. had also asked for its legal costs associated with the appeal proceedings, which the EAB denied.

In short, the EAB disagreed with all claims for appeal made by SSIRRLU, Myrus James on behalf of the Penelakut First Nation Elders, and the Canadian Sablefish Association. While appeal group members were disappointed, Martin said their work is not complete. "We are disappointed in the EAB ruling but the facts remain we still have a site and buried people to protect and the battle is not over." Martin added, "It is seriously concerned because now Sablefin is applying for a permanent permit to infuse a much larger amount of effluent through the tombolo into the ocean at a volume of almost five times the temporary permit.”

But the appeal panel found the environmental effect on the Walker Hook land or marine area would be “neglible” due to the effectiveness of the 37-micron drum filter used in the hatchery, and the sand aquifer the discharge passes through. “There is very little chance that the microbe concentration in the discharge at the point where the discharge emerges from the aquifer will pose any threat to humans, fish or fish habitat,” states the report.

But Martin said many unanswered questions about the effluent’s long-term and cumulative impacts remain. She also said the SSIRRLU is still unhappy because the responsibility for assessments, testing and ongoing monitoring belong to the proponent. “It is concerned because MWLAP appears to be delegating environmental protection to the developers.” SSIRRLU also disagrees with the EAB finding that the Penelakut First Nation was adequately consulted.

The EAB accepted that the Penelakut people have an aboriginal right to gather food in the subject area and “aboriginal rights in relation to Syuhe’mun (Walker Hook) as a sacred burial ground.” However, it notes that matters connected to the disturbance of burial sites fall under Heritage Conservation Act jurisdiction, administered by the Minister of Sustainable Resource Management, not MWLAP.

Minkoff maintains the EAB appeal and an attempted federal court injunction request by the CSA are part of a "much broader two-year campaign to stop sablefish farming in B.C. Behind this campaign are a handful of powerful businessmen who own the exclusive right to harvest $30-million worth of wild sablefish in B.C. This group, under the auspices of the Canadian Sablefish Association, has recently enlisted the support of the American Sablefish fishermen to help stop this small B.C.-owned enterprise in order to maintain their lucrative monopoly."

Minkoff said the hatchery has completed its first year of black cod juvenile production and has sold 24,000 fish to fish farms. "The hatchery operates under very high environmental standards, which ensures that all water leaving the hatchery, by the time it mixes with the ocean, is devoid of all fish waste products and excess nutrients. The hatchery will also maintain its commitment to preserve known First Nations heritage sites in its vicinity."