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Aquabounty survives Halifax-based legal challenge on GM fish

But production limited to one PEI facility

by Miles Howe

The AquaBounty team recently fought off a court challenge to produce its genetically modified AquAdvantage Salmon (AAS) eggs in its Prince Edward Island-based facility. [Photo: AquaBounty.com]
The AquaBounty team recently fought off a court challenge to produce its genetically modified AquAdvantage Salmon (AAS) eggs in its Prince Edward Island-based facility. [Photo: AquaBounty.com]

KJIPUKTUK (Halifax) – Ah, AquaBounty. That blue golf-shirt wearing, biochemist-run, outfit at the cusp of Atlantic Salmon genetic modification, has staved off yet another legal hurdle on the troubled steeple chase of bringing the world's first genomic-spliced fish to market.

The latest legal shot against the company was volleyed by Halifax, Nova Scotia-based environmental advocacy group, the Ecology Action Centre (EAC), and was an attempt to draw into doubt the governmental decision of three separate Canadian federal departments to issue AquaBounty the appropriate permits to grow infertile eggs at its facility in rural Prince Edward Island. Fighting the case on their behalf was Toronto-based firm Ecojustice.

AquaBounty uses a non-GMO 'triploid treatment' to produce these 'three-fish-in-one' eggs, thus theoretically eliminating the potential of its patented fish ever reproducing, in the laboratory or otherwise.

The case, on paper, focused on questions of procedural process. In particular, these related to the federal government's own lack of timeliness in issuing a 'Significant New Activity' (SNA) notice on Aquabounty's patented fish (which goes by the appetizing name of AquAdvantage Salmon, or AAS for short), as well as a failure to obtain and assess legally required information under section 108 of the Canadian Environmental Protection Act.

Basically, on the one hand, the case argued that the federal government only issued the SNA notice in the Canada Gazette once the court procedures had started against AquaBounty, not within the 120-days-after-issuance time frame that is its mandate. Theoretically – and legally - the notice should have been publicly issued by the end of August, 2013, not in late November, 2013, when in fact it was.

On the other hand, the case charged that the federal Environment Minister had not properly interpreted information provided to it by the Department of Fisheries and Oceans (DFO), related to the potential toxicity of the AAS fish. The DFO, in its report to Environment, recommended that AquaBounty only allowed to produce AAS eggs in the designated Prince Edward Island facility, which had been evaluated by the DFO as being on-land, and secure against escapes. The department's recommendation related to the potential negligible environmental toxicity of the AAS fish was solely related to its being produced in that one facility.

Environment Canada, however, suggested more broadly that the AAS fish eggs might be produced in any secure, land-based, facility.

This, understandably, was a bone of contention, and, for the Ecology Action Centre, functioned as something of a door prize. If it couldn't reverse the federal decision to allow Aquabounty to produce AAS eggs entirely, then it might at least stem the genetically modified-tide for the time being by limiting the company's operations to its PEI-based facility.

On this argument, presiding judge Zinn did arguably side with the EAC.

“We were looking to have the approval overturned,” explains Mark Butler of the Ecology Action Centre. “While that didn't happen, the judge did agree that production should be limited only to the PEI facility. The judge noted that he wasn't there to judge the technology, but only to determine whether the application was right or wrong. It wasn't within the judge's role to second guess a ministerial decision, and it is fairly common for judge's to defer to ministerial knowledge in cases such as this.

“But it is interesting that in this case, the judge came up with an interpretation of the act which was both different from ours and that of the government.”

AquaBounty's permit to produce AAS eggs stands, but only at its PEI facility.

What's the Big Deal?

The arguments against producing AAS fish – aside from eating genetically modified flesh without proper labelling in place - rests upon the risk of escapes of genetically modified – and potentially fertile - fish into the wild. The argument goes that this situation might have irreversible impacts upon already stressed wild Atlantic salmon populations.

The AAS fish is marketed as being able to grow at least twice as fast as – and to a greater size than - a wild salmon. Escapes of AAS fish would potentially compete with wild populations for scant resources. And if those fish proved to be fertile, the potential of an AAS fish (already mixed with the genomic material of a wild Atlantic salmon, a wild Pacific salmon and an ocean pout) mating with a wild Atlantic salmon would potentially produce yet another 'franken-species'.

“Think of a scenario where you have a fish escape and they enter into salmon rivers,” says Butler. “If it turns out one of those fish is not infertile, that the triploid treatment didn't work, and this fish meets a wild Atlantic salmon and they successfully reproduce, suddenly you have genes of other species introduced into wild salmon.”

If the scenario seems implausible, it may remain so, at least in Canada, provided that AquaBounty remains restricted to the one, secure, Prince Edward Island facility.

On the other hand, for reasons that are not entirely clear, AquaBounty's 'grow-out' facility is located in the highlands of Panama, where the Guardian has reported several regulatory infractions have already occurred. In 2013, the Guardian also reported that Aquabounty was sharing the slightly sketchy, Panamanian mountain-based facility with a farmed Rainbow trout producer. Escapes, cross-breeding and worst-case scenarios suddenly become slightly more plausible than 'sky is falling' warnings.

There are many reasons to base one's main operational facility down a dirt road in Panama, while maintaining an office in Canada; unfortunately governmental corruption and lack of oversight is one of them. In 2014, Transparency International ranked Panama as being tied as the 94th most corrupt country, globally, tied with Liberia and Algeria.

Panama is also a great place to launder your money - for Canadian companies even more so thanks to the signing of a 2013 Free Trade Agreement between our two countries.

It's a long flight with delicate fish GMO eggs as luggage between Charlottetown, PEI and Panama City, and the entire venture suddenly begins to smack of a flag of convenience, tax evasion-esque styled operation.

“If this fish goes to commercial production, you then have numerous facilities raising millions and then hundreds of millions of fish over a number of years,” says Butler. “It then becomes a question of probability that something goes wrong. A tree will fall, a truck will turn over, someone will be smoking pot...

“What we're getting here in the United States and Canada is that AquaBounty is saying 'This is just one facility, then we export to Panama. So don't worry.' So, if the purpose of this trip to Panama is to take this fish to commercial production, then the likelihood of human error or mechanical error just increases.”

The Tip of the Iceberg?

Of course, the larger question is where we, as a society, are headed in terms of food production and consumption. Already, we have lost the capacity to feed ourselves en masse (and by en masse I mean from the local grocery store) with wild Atlantic salmon. And yet our taste for the salmon's pink flesh does not appear to be abating, despite the dire warnings of the environmental impacts of farmed salmon (and sea lice, and the medication, and escapes...).

We just want salmon, or something that looks like salmon, and AquaBounty is betting that we'll want something called AquAdvantage Salmon – and that the North American market will not require labelling of the product as such.

In its defence, if the entire scheme is on the 'up and up', the AAS fish promises to be grown to market size in on-land fish pens. If we are to take the company at its word, this will be a fast-growing fish, removed from wild populations, located in on-land pens that will not unduly stress the local environment. If this is the case – and if labelling regulations were indeed in place – why not let those who would eat AAS just eat AAS?

On the other hand, there is the argument that the AAS fish is simply the first genetically modified flesh-beast out of the proverbial gate, and that other, would-be, producers are waiting patiently in the wings to see how AquaBounty's case plays out. Gene editing techniques have advanced rapidly over the past few years, meaning that a scenario where mass-produced flesh from a patented cow-ish beast, or a pork-like chop, will all be for sale at your local grocery store within the near future.

Perhaps, in Canada, this wouldn't be such a 'spooky' issue if we, as consumers, simply had a right to know and choose whether to purchase beef, or 'beef-ish'. As it is, in the case of the Aquabounty application to do business within Canada, there was simply no public consultation.

“There was no opportunity for public input, comment, or consultation,” says Butler. In the United States, the Federal Department of Agriculture received over 2 million comments on this issue. In Canada, there's been nothing about for this, nothing against this. There have been no hearings. If my neighbours wanted to build an addition on their house, there might be more public engagement.

“There's been no consultation with broader scientific industry aside from one meeting in Montreal. There's been no consultation with First Nations, with sport fishers, even with the open-pen, farmed, industry. And it comes down to: Who has right to alter a fish?”

Apparently, AquaBounty.

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