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Supreme Court dismisses Aquaculture Minister Belliveau and Kelly Cove Salmon (Cooke Aquaculture) motions to end law suit.

In June of 2011, Shelburne, Nova Scotia  residents Herschel and Marian Specter filed an appeal of a decision by Nova Scotia Fisheries and Aquaculture Minister Sterling Belliveau to grant three licenses to Kelly Cove Salmon Ltd (Cooke Aquaculture) for industrial-sized open net salmon farms in Shelburne’s inner harbour. The licenses were characterized as “amendments” to previous salmon cage sites and one of the new farm sites was less than 250 meters from the Specter’s home.

Almost immediately, Belliveau and Kelly Cove filed motions to dismiss the case, pleading that the Specters were not “aggrieved persons” and that they had also filed their lawsuit later than allowed. The claims were consolidated by Justice Arthur J. LeBlanc and heard in Nova Scotia Supreme Court in Halifax on August 16. On September 1, in a 29-page decision, Justice LeBlanc ruled that both motions should be dismissed. This allows the original appeal by the Specters to proceed in the courts.

Issue of late filing:

Of note in Justice LeBlanc’s decision are his comments about the background and substance of both of the motions. Regarding the claim that the Specters had filed later than allowed, Justice LeBlanc cited several previous cases and noted that Minister Belliveau’s office did not provide the Specters with a copy of the decision or copies of the leases and licenses granted until well after the decision was made, and only when requested to do so by the Specter’s attorney.

Justice LeBlanc ruled that in order to make a ‘reasoned decision" on whether to appeal, the Specters must be able to review the decision by the Minister to allow the farms to be installed in the harbour. In his decision on this matter Justice LeBlanc opined that  “The rule of law requires fidelity to both the spirit and substance of the law.” Kelly Cove and Minister Belliveau also argued that the Justice did not have the jurisdiction to extend the time for appeal and the Justice disagreed.

Issue of standing:

As for the issue of “standing”, Justice LeBlanc again dismissed the claims of Kelly Cove that the Specters should not be allowed to bring the appeal. Justice LeBlanc disagreed with Kelly Cove, citing issues of the relationship between the appellants and the challenged decision, the statutory scheme surrounding the decision, the merits of the complaint and whether the Specters might have an economic, commercial, legal, or personal interest in a decision.

Kelly Cove also argued that, because it was closest to their home, the Specters should be allowed to appeal the decision on only one of the three sites. Justice LeBlanc rejected that claim, noting that all three sites were grouped one application by Kelly Cove and cited in one decision by Minister Belliveau.

Justice LeBlanc also took into account Kelly Cove,s admissions in their pleadings that the salmon farms in Shelburne harbour have resulted in cloudy water, algae and slime in certain areas.

Arguable case that the amendment procedure followed by Minister Belliveau was not appropriate:

The Specters had argued in their original appeal that Minister Belliveau had erroneously treated the sites as amended sites rather than as new sites. Justice LeBlanc noted that, because the “amended” sites share no boundaries with the original three sites and because there is evidence that the new sites may have a detrimental effect on the intertidal zone, there is an “…arguable case that the amendment procedure was not appropriate, and that the Minister should have followed procedure for granting new licenses.”

The issues of damage to the marine ecosystem from previous Kelly Cove cages sites in Shelburne Harbour were extensively detailed in multiple submissions to Transport Canada and the Department of Fisheries and Oceans during the public input portion of the licensing process. Minister Belliveau has repeatedly stated that he and his staff consider all the available scientific evidence in his decisions about granting fish farm licenses.

The Specters were unavailable for comments on the Justice’s decision.