Haida Nation v Canada

Background

Haida Nation occupies an archipelago off the northwest coast of British Columbia called Haida Gwaii. Haida Nation claims Aboriginal rights and title to Haida Gwaii and has entered into agreements with the provincial and federal governments on the basis of their historic and contemporary occupation of the archipelago. In 2004, the Supreme Court of Canada found that Haida Nation has a strong prima facie case for holding Aboriginal title to all of Haida Gwaii. In pursuing injunctive relief in this matter, Haida Nation argued that if the Minister were to open Haida Gwaii herring to a commercial fishery in 2015 it would put both the herring stocks and Haida Nation’s Aboriginal rights in jeopardy.

Haida Gwaii’s herring stocks have been closed to commercial fishing for roe herring since 2003, and closed to commercial harvesting of spawn-on-kelp since 2005. In 2014, staff from Fisheries and Oceans Canada (DFO) recommended against re-opening a commercial herring harvest in that region because of insufficient evidence for recovery of the Haida Gwaii herring stocks. The Minister chose to ignore this recommendation and instead re-opened the area for commercial herring fishing in 2014; however, commercial fishermen reached an agreement with Haida not to fish this area last year. In December 2014, the Minister again authorized a commercial herring fishery in Haida Gwaii for 2015 in spite of evidence that the herring stocks in this area were weaker than the previous year.

DFO’s 2014 stock assessment surveys found that the Haida Gwaii herring stock had declined between 2013 and 2014 and predicted a further decline between 2014 and 2015. One of the forecasting models used by DFO also provided the basis for the Minister to consider a “no-catch” option for Haida Gwaii for 2015. However, DFO recommended to the Minister that the herring fishery be opened in all five major areas of the Pacific Region, including Haida Gwaii. DFO presented two alternative harvest options for the Minister’s consideration, both involving commercial harvest of the Haida Gwaii herring stock, and the Minister selected the more conservative of these two options.

When the Council of the Haida Nation learned that DFO would be proceeding with planning for a commercial opening for the Haida Gwaii herring stock in 2015, the Council wrote an open letter to all commercial fishermen requesting that they not select Haida Gwaii as their fishing area. The United Fishermen and Allied Workers Union also sent letters to all commercial herring fishermen asking them not to select either Haida Gwaii or the Central Coast for fishing, and only two licence holders selected Haida Gwaii for fishing.

Court’s decision

The Court noted that there was “no question” that the Haida Gwaii roe herring stock declined between 2013 and 2014 despite the lack of any fishing that season, and that the stock was predicted to further decline in 2015. It also noted that there was “a significantly uncertain forecast on the estimated roe herring stock in the Haida Gwaii area for 2015”. In this context, the irreparable harm that Haida Nation alleged would result from a 2015 opening moved beyond mere speculation to become “more of a certainty”. The Court stated that “[t]he room for error in highly suspect forecasts, in an admittedly small fishery, must be considered a significant risk of harm not compensable in damages.”

The Court also found that because Haida Nation’s ability to fish roe herring was “central to their culture, traditions and way of life,” their arguments that an opening would cause irreparable harm had even more force. The Court held that there was also a “heightened duty” for the Minister and DFO to accommodate Haida Nation with respect to the herring fishery as a result of co-management agreements entered into between the Crown and Haida Nation, the region's ecological concerns, and the Crown’s “duty to foster reconciliation with and protection of the constitutional rights of the Haida Nation”. The Court found that the Crown had failed to consult meaningfully with the Haida Nation and instead unilaterally imposed a “highly questionable opening” for 2015—actions that compromise rather than encourage the mandated reconciliation process.

In terms of the balance of convenience, the Court noted that the two roe herring licences selected for a roe herring fishery in Haida Gwaii could be relocated to the Prince Rupert region which tends to have its openings later than those for Haida Gwaii. The Court also held that the honour of the Crown in consultation and reconciliation with the Haida Nation was “very much in the public interest, given the special conservation and ecological agreements governing the Haida Gwaii area.” The Court held that although the Minister was owed deference in governing the herring roe fishery, that deference would not trump the real and serious concerns raised by the Haida Nation.