Federal Court

Aboriginal Peoples

Interlocutory injunction to prohibit reopening of fishery granted

In 2003, respondent Minister closed commercial herring fishery in Haida Gwaii, archipelago off west coast of British Columbia, due to concern about weak stocks. Fishery remained closed while annual stock assessments conducted by federal Department of Fisheries and Oceans (DFO) failed to demonstrate adequate level of abundance. However, in 2011, DFO introduced new method of calculating abundance that lowered level at which fishery could be authorized. For 2014 season, Department of Fisheries and Oceans recommended against reopening on basis there was insufficient evidence of durable and sustained recovery. Minister did not accept recommendation and authorized reopening. Applicants, representatives of indigenous people of Haida Gwaii, whom Supreme Court of Canada had acknowledged had strong prima facie case of Aboriginal title to all of Haida Gwaii, and who had entered various interim agreements with federal and provincial governments regarding management of lands, waters and resources of area, asked commercial fishermen not to fish that year. Fishermen agreed. In 2014, on strength of one forecast that indicated stocks would be above level at which fishery could be authorized, and notwithstanding evidence of decline in stocks between 2013 and 2014, and predicted decline between 2014 and 2015, DFO recommended limited fishery (harvest rate of 10 per cent) in 2015. Applicants commenced action and applied for interlocutory injunction to prohibit reopening of fishery on basis herring stocks, and their Aboriginal rights, would be endangered if commercial fishery allowed. Application allowed. Respondent acknowledged that regulation of fishery and duty to consult and accommodate Aboriginal groups constituted serious issues. High degree of uncertainty in forecasts, combined with fact stocks had declined, and were expected to decline further despite there having been no fishing, made it more likely irreparable harm would occur if commercial fishery opened in 2015. Potential for real and serious risk of harm even greater when one considered that ability to fish roe herring central to applicants’ culture, traditions and way of life, and that applicants had strong prima facie case of aboriginal title. Given that context, failure to consult meaningfully with applicants also constituted irreparable harm. Given agreements in place, as well as special conservation and ecological concerns, no question balance of convenience favoured applicants. Applicants should not be required to provide undertaking as to damages in circumstances. Minister (or DFO) prohibited from opening commercial herring fishery for 2015 season.

Haida Nation v. Canada (Minister of Fisheries and Oceans) (Mar. 6, 2015, F.C., Michael D. Manson J., File No. T-73-15) 250 A.C.W.S. (3d) 361.

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