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Salmon farming decision to face judicial review

Aquaculture company, Unity Marine Limited, applied for judicial review proceedings over Executive Council’s decision not to allow salmon farming in the Falkland Islands.

The aquaculture company was exploring the feasibility of salmon farming in the Falklands and was under the impression FIG would follow recommendations made in an independent report on aquaculture including island-wide consultation on the topic, and developing legislative framework on fish-farming.

In March 2022, the Executive Council (ExCo) declared it was “not minded to agree any large-scale fish-faming” or “the introduction of new species.”

Unity Marine applied for judicial review proceedings, regarding the decision, this year and was granted leave on 20 April.

The Falkland Islands Government (FIG) applied for the review to be set aside, arguing Unity Marine waited too long before starting proceedings.

The Chief Justice of the Falkland Islands, James Lewis KC, heard FIG’s argument on 28 July, as well as a response from Unity Marine.

Acting for his client, David Pievsky KC, said the aquaculture company had not received proper notification of the Executive Council decision.

Mr Pievsky said they asked several times for an explanatory letter detailing the reasons why ExCo made the decision not to allow salmon farming in the islands.

He detailed a phone call from the Director of Natural Resources made to Unity Marine not long after the decision, as well as meetings between the company, the Attorney General and the Governor. But, no letter was sent to the company until January of this year.

Jonathan Auburn KC, representing FIG, argued the publication of ExCo’s decision, the phone call from the Director of Natural Resources, and the fact Unity Marine released a press statement about the decision, showed the company was aware it was final.

Mr Auburn also said the decision on whether to allow salmon farming in the islands would not change regardless of the outcome of a judicial review, as the discussion formed a large part of the election process two years ago.

Mr Lewis, in his written judgement released on Thursday, said it was “sensible and reasonable” for Unity Marine to wait for the promised letter before starting a judicial review challenge and he “was not persuaded” Unity Marine was out of time to bring judicial review proceedings.

On the matter that a Judicial Review would not change the outcome of the policy decision, Mr Lewis said:

“For a court to be satisfied that it is highly likely the outcome would not have been substantially different in this case is very difficult. If there had been a proper decision following a proper consultation it is nothing other than a form of speculation to now determine the result.

There was no clear mandate as some candidates put forward positions that included seeking a decision only after further consultation. Even if there was a clear mandate it is only a relevant consideration not a dispositive consideration. To say otherwise is an unlawful fetter on the decision-making process.”

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