Final appeal board arguments vented in Victoria hearing

Gulf Islands Driftwood, Wednesday, May 26, 2004

By Jennifer McFee

Closing arguments for the appeal of a waste management permit issued to Sablefin Hatcheries Ltd. took place before the Environmental Appeal Board last week in Victoria. Lawyers from three groups presented final reasons why they believe the board should reverse an 18-month approval granted by the Ministry of Water, Land and Air Protection (MWLAP) to the company to inject hatchery waste into an underground seawater layer at Walker Hook.

On Tuesday, May 18, the three-member panel heard arguments from lawyers for the Canadian Sablefish Association (CSA), Salt Spring Island Residents for Responsible Land Use (SSIRRLU) and Penelakut First Nation Elders (see separate story), as well as the response from MWLAP. Over 70 concerned community members ventured to Victoria to attend the first day of the hearing. The meeting carried over to Wednesday, when board chair Alan Andison and members Bob Gerath and Robert Cameron heard final words of third party Sablefin Hatcheries Ltd., followed by responses from the three appellants.

Arguments of the first two appellants dealt mainly with environmental issues. Lawyer Wally Braul presented the CSA’s concern that microbial waste might travel to the marine environment. He said enough research has not been done on the effects of microbes on fish and fish habitat, resulting in “a good deal of scientific uncertainty.” “Tackling the difficult issues is imperative. Consideration of the presence of potentially harmful substances should have been a priority.” According to Braul, limited studies on microbial effects were done by the hatchery’s own hydrogeologist Dennis Lowen instead of by professionals qualified to study the wastes. Braul said Lowen reported on areas outside his realm of expertise and Sablefin Hatcheries took a “less than rigourous approach” to the guidelines set out by the ministry.

According to the CSA, the ministry misconstrued agency approvals. Braul said the project received conditional approval based on the assumption that no waste water would enter the environment. Yet Lowen’s report stated most waste discharge would be eliminated, but said the project could produce some potential contaminants, like peroxide. This discharge could go through a number of routes to get to the marine environment.

Braul said there was insufficient analysis of this microbial waste, of rate and direction of water flow and of tidal effects. He said most evidence was anecdotal rather than based on facts. “We have at best very superficial information. Transparent analysis was not used in this case. Uncertainty of information makes it very difficult to develop a responsible approach to the risk. There is a significant possibility for damage,” said Braul.

Eamon Murphy spoke next on behalf of SSIRRLU. He said the decision maker for waste management approval failed to take into account recreational uses of Walker Hook, as well as the possibility that the area could be acquired for parkland.

He also expressed concerns about the effects of hatchery waste on three sensitive ecosystems at Walker Hook, which are home to fish and threatened bird species. Murphy told the board the decision was based on “inadequate, insufficient and incomplete information” that lacked baseline studies and environmental impact assessments. He said guidelines about water discharge were not followed. Murphy further questioned whether the hatchery’s sand filter would remove marine bacteria, viruses or microbes.

Murphy said that eelgrass, important for spawning and feeding, could be adversely affected. “Once eelgrass begins to die, it has a very slow recovery rate. Once eelgrass is affected, the food chain becomes affected. We just don’t know where the effluent is going to come out.”

According to the residents’ group, Lowen relied on “four years out-of-date water analysis guidelines that were not specific to eelgrass or fish species.” Murphy told the board the ministry’s decision maker “exceeded his jurisdiction” because he approved a project that puts effluent into fish habitat. “The decision maker should have involved the Department of Fisheries and Oceans (DFO) in waste management concerns. He effectively stepped into the shoes of the DFO.” He also said the decision was fettered, as correspondence with the ministry gave “the distinct impression” the project would be approved before the application was submitted.

On the other side of the case, Dennis Doyle presented arguments on behalf of MWLAP’s regional waste manager. He said the hatchery’s “low-risk” discharge meets all water-quality standards and its impact on the environment is negligible since it comes from an “all-natural process.” “It’s not a pesticide that comes out of a sealed container. It’s created right there in the hatcheries. There is no miscommunication and we don’t have to worry about the environmental impact to fish.”

Doyle said it would be impractical to try to monitor microbes. He said the manager looked at other fish farms with sablefish and found no problems with microbes being discharged. “This is not a case of failure to look at an issue, but a case of looking at an issue and deciding it doesn’t need any further consideration.” He said the hatchery is also not a problem for above-ground creatures. “We’re not talking about a very intrusive development here. On a whole, we would submit that, given the studies the manager did, all procedures and policies were followed and the decision should stand.”

On behalf of Sablefin Hatcheries, Rory Lambert addressed some of these issues. He said the CSA’s claim was made so that commercial fishermen could “protect their monopoly and stifle competition.” He also said residents “can’t see, hear, smell or taste the hatchery.”

“There is no harm that the hatchery site creates. There is no evidence that the discharge affects the receiving environment negatively at all.” After hearing the arguments from all sides, the board members said they could not promise a date or time for results, but would try to make their decision as “expeditiously as possible.”