The Federal Court granted an interlocutory injunction prohibiting the Minister of Fisheries and Oceans from opening the commercial roe herring fishery on the West Coast of Vancouver Island pending the hearing of a judicial review application brought by five Nuu-chah-nulth First Nations.

The right of the applicant First Nations to fish and sell fish was affirmed by the Supreme Court of British Columbia in 2009 (2009 BCSC 1494) and ultimately affirmed on appeal (2013 BCCA 300). The trial judge in that proceeding held that the parties “now have the opportunity to consult and negotiate the manner in which the plaintiffs’ aboriginal rights to fish and to sell fish can be accommodated and exercised”. The parties were granted leave to address issues of infringement and justification. Further proceedings in the B.C. Supreme Court will begin in March 2015.

The West Coast of Vancouver Island (WCVI) is one of five stock areas for the commercial herring fishery in British Columbia. It also includes portions of the traditional fishing territories of the Nuu-chah-nulth Nations. This area has been closed to general commercial herring fishing since 2006 due to conservation reasons. DFO management discussed the possibility of allowing a 10% harvest rate – lower than the usual “cut-off point” of 20% used by DFO – but ultimately recommended to the Minister that the WCVI fishery remain closed. DFO cited the need to negotiate an agreement with the Nuu-chah-nulth First Nations, as well as wanting to see more evidence of a durable and sustained recovery of the stock.

The Minister did not agree with the DFO recommendations, and made a decision to allow an opening for the WCVI commercial roe herring at the 10% harvest rate. The applicants filed for an interlocutory injunction. The court allowed their application in oral reasons pronounced on February 28, and written reasons were posted on the Court’s website on July 14.

The Nuu-chah-nulth applicants relied upon the BC Supreme Court decision recognizing their section 35 rights to fish and sell fish. They alleged that the “serious issue” to be tried is Canada’s breach of its duties to negotiate with them, as well as conservation issues. They alleged that irreparable harm would occur due to the loss of a unique opportunity to implement their Aboriginal rights for a community-based fishery, and accommodate their section 35 rights.

The Court applied the RJR MacDonald test for interlocutory injunctions. Canada conceded that there was a “serious issue” to be tried. Mandamin J. agreed that there were serious issues relating to conservation and the Aboriginal rights of the applicants. Canada argued that the applicants had not satisfied the test for “irreparable harm”, since the issue of justification was still before the B.C. Supreme Court and because DFO applies a precautionary approach. Mandamin J. disagreed. He noted that DFO management had recommended that the fishery not be opened in 2014 for conservation reasons. Conservation, and consultation about conservation, is an important part of the Sparrow justification test. Mandamin J. also held that the 10% harvest rate amounted to the Minister “fudging the numbers” and departing from a science-based approach. The Minister’s approach was tantamount to sidestepping the conservation assessment, at the risk of harming the integrity of the fisheries management system.

Mandamin J. also agreed that irreparable harm would arise due to the loss of the applicants’ opportunity to reasonably participate in negotiations, based on their established section 35 rights, for a community-based fishery. Once commercial fishing is allowed, and the commercial fishing industry has expectations for the future, the opportunity for a “complete examination” of how the applicants’ section 35 rights can be exercised “will have passed”.

The Court distinguished the Federal Court of Appeal decision in Musqueam (2008) which held that inadequate consultation does not always constitute irreparable harm for the purposes of the RJR MacDonald test. Mandamin J. held that the situation of the applicants in this proceeding is different due to the declaration of their section 35 rights in the earlier litigation.

The Court also held that the balance of convenience favoured the granting of an injunction. Mandamin J. stressed the importance of the “public interest” when considering this factor. He concluded that the public interest lies with both fostering reconciliation between Aboriginal peoples and the Crown, and giving recognition to earlier Court orders. The impact on the commercial fishing industry can be mitigated by reallocation or moving licensed holders to different locations. The interests of the commercial fishers is outweighed by the opportunity of First Nations people “to practice their recognized Aboriginal right to fish and sell fish and reclaim their heritage”. Mandamin J. also referred to the recommendation of DFO management to keep the fishery closed in 2014 as another factor in the interest of the public.

The applicants requested that they not be required to provide an undertaking as to damages. The Court concluded that it was appropriate in this case to relieve the applicants of this obligation. In contrast with the Musqueam case, it could not be said that the Crown would suffer a substantial loss if the injunction was granted. Other factors include the balance of convenience, and the fact that the applicants had given notice of their intentions to make this application.

The Court therefore granted the application for an interlocutory injunction, with costs payable by the Minister. There was no order of costs against the intervenor BC Seafood Alliance.


Scott Kerwin


Aboriginal Law