In previous litigation, the applicant First Nations successfully proved an Aboriginal right to harvest and sell almost all fish species within their traditional territory, including herring. During the course of that litigation the British Columbia Supreme Court (BCSC) directed Canada and the applicants to consult and negotiate the accommodation of this Aboriginal right. Up until the date of this application negotiations had failed and the parties have therefore returned to the BCSC to address the issue of justification of the infringement of the applicants’ Aboriginal fishing rights.
The WCVI commercial roe herring fishery has been closed since 2006 due to low abundance and related conservation concerns. In 2014, Fisheries and Oceans Canada (DFO) staff recommended to the Minister of Fisheries and Oceans that the closure be maintained as staff wished to see “more evidence of a durable and sustained recovery before re-opening”. When the Minister allowed for a commercial opening in 2014 in spite of this advice, the applicants went to the Federal Court to challenge this decision and successfully obtained an interlocutory injunction against the Minister for reasons that included the applicants’ conservation concerns and Canada’s unfulfilled obligations to negotiate accommodation of the applicants’ Aboriginal rights.
When the Minister directed a commercial roe herring opening again in 2015 the applicants returned to the Federal Court, challenging this decision based on the assertion that the WCVI herring stock should not be opened to a commercial roe herring fishery until their Aboriginal fishing rights have been accommodated and their conservation concerns have been addressed.
The Court noted that in contrast to 2014, this year DFO staff had recommended to the Minister that the herring fishery be opened in all five major areas of the Pacific Region, including the WCVI. 2015 stock assessments for WCVI herring returns predicted that the stock would amount to more than double the “cut off” level set by DFO for assessing whether a commercial roe herring fishery ought to be allowed. According to the Court, the applicants failed to refute this evidence.
The Court also noted that although the applicants and the Minister had not yet reached an agreement as to how the applicants’ Aboriginal fishing rights could be accommodated, there was “clear evidence of ongoing consultations and negotiation” between the parties to reach a settled accommodation.
In determining whether injunctive relief was warranted, the Court held that the intersection between the regulation of Canada’s fisheries and the Crown’s duty to consult and accommodate the applicants with respect to their fishing rights did amount to a serious issue to be tried. However, based on the evidence before it, the Court held that the irreparable harm that the applicants asserted was speculative “at best”. The Court found no reason to assume that the applicants’ rights could not be “reasonably and fairly accommodated simply because other commercial interests participate in a limited commercial fishery in the WCVI area”.
The Court went on to find that the balance of convenience tipped in favour of the Minister, and the applicants’ rights could continue to be defined and accommodated through ongoing negotiations and the BCSC litigation. The Court stated that the ultimate goal of accommodation is reconciliation of the applicants’ rights with those of “society at large” and found that allowing the application would adversely impact the 22 licence holders who selected the WCVI to fish roe herring this year. The Court further found that since there is a narrow window for the 2015 fishery there was a real risk that fishing opportunities could be lost altogether if DFO could not re-issue licence conditions in time. It weighed this potential loss against the fact that four of the five applicant First Nations held commercial roe herring licences that would not be affected by the closure they sought since they could fish these in the Strait of Georgia on the other side of Vancouver Island. The Court also held that Canada’s approach to fisheries management should be afforded “considerable deference” by the courts.
[*Note: The Federal Court’s decision in this matter may be worth contrasting against the subsequent decision issued by the same judge on Haida Nation’s injunction application the following week.]