The Federal Court of Appeal dismissed an appeal by the Minister of Fisheries and Oceans, from a February 2014 decision granting an injunction restraining the Minister from opening a commercial herring roe fishery, on the ground of mootness.

On 28 February 2014, the Federal Court granted an interlocutory injunction prohibiting the Minister 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 had been affirmed by the Supreme Court of British Columbia in 2009 (2009 BCSC 1494) and upheld on appeal (2013 BCCA 300). The West Coast of Vancouver Island includes portions of the traditional fishing territories of the Nuu-chah-nulth Nations, and had been closed to general commercial herring fishing since 2006 due to conservation reasons.

The Minister made a decision to allow an opening for the commercial roe herring fishery at a 10% harvest rate. The Nuu-chah-nulth applicants sought injunctive relief, and alleged 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. Mandamin J. agreed that there would be irreparable harm, and questioned whether the Minister was “fudging the numbers” and departing from a science-based approach.  The Court also held that the balance of convenience favoured the granting of an injunction.

The earlier decision of Mandamin J. was reported at 2014 FC 197, and summarized in our e-Newsletter of 17 July 2014.

The open dates for the commercial herring roe fishery in 2014 extended from 10 February to 30 April 2014. The open season had already passed by the time the Minister sought an expedited hearing of this appeal in June 2014. There has not been a “live issue” since 30 April 2014.

The injunction under appeal only applied to the 2014 season. The parties are free to continue their litigation as to whether the Minister’s decision about the 2014 management plan should be set aside. If the Minister approves the opening of a fishery for 2015, there will be another opportunity to litigate the issues. Pelletier J.A. commented:

If the time frames in that case are no shorter than they were in this case, we are certain that any challenges to that decision could, with the assistance of the Federal Court and this Court, be heard and decided in sufficient time to permit a commercial fishery, if warranted.

This appeal did not satisfy the criteria in Borowski v. Canada and, in consequence, the Court held that this appeal should not be heard despite its mootness. The appeal was dismissed with costs.


Scott Kerwin


Aboriginal Law