Kitkatla Band v. Canada (Minister of Fisheries and Oceans), docket T-284-00

Date: 20000317

Docket: T-284-00

            

BETWEEN:

     MATTHEW HILL, on his own behalf and

     on behalf of the other members of the

     KITKATLA BAND,

     Applicants,

     - and -

     THE MINISTER OF FISHERIES AND

     OCEANS AND THE FISHERIES MANAGEMENT

     COORDINATOR - PRINCE RUPERT,

     Respondents,

     - and -

     B.C. FISHERIES SURVIVAL COALITION AND

     SEAFOOD PROCESSORS ASSOCIATION OF B.C.,

     Intervenors.

     REASONS FOR ORDER

MACKAY, J.

[1]      The applicants, by application dated and filed on March 5, 2000, seek an order for an interlocutory injunction restraining the respondents, the Minister of Fisheries and Oceans, and the Fisheries Management Coordinator - Prince Rupert, from authorizing an opening of a roe-herring test fishery and a roe-herring seine fishery in Kitkatla Inlet in the year 2000.

[2]      After hearing counsel for the parties and for the intervenors on March 15 and 16 in Vancouver, the application is dismissed for the reasons here set out.

[3]      The injunction sought is interlocutory in the sense that the relief sought is, presumably, an interim order pursuant to ss. 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, pending final disposition of the applicants" application for judicial review dated and filed on February 15, 2000 which seeks several orders. These include orders to set aside a decision of the Minister to approve the Integrated Fisheries Management Roe Herring 2000 Plan (the "IFMP") insofar as it authorizes a commercial harvest of roe herring in Kitkatla Inlet in 2000, to refer the matter back for reconsideration, to have the respondent Minister provide resources for the applicants to participate in meaningful consultation with the Minister, and orders for interlocutory and permanent injunctions to restrain the Fisheries Management Co-ordinator - Prince Rupert from authorizing an opening for a commercial roe-herring fishery in Kitkatla Inlet in 2000.

[4]      While this application comes as an interlocutory order, the parties and the intervenors do not disagree that in light of the timing, with the applicants" motion of March 5 heard on March 15 and 16 in Vancouver, and an anticipated test fishery to take place on March 17 or 18, and any decision to permit an opening for a roe-herring seine fishery in Kitkatla Inlet expected to be made March 20 or shortly thereafter, this Court"s decision to grant or to refuse the injunction now sought will determine the matter for the year 2000. The limited time available for a brief window of opportunity for a roe-herring seine fishery or other herring roe fishery will have passed, within a very few days, at least from areas in the Prince Rupert region, which includes Kitkatla Inlet.

[5]      The applicant is Mathew Hill, the Chief of the Kitkatla Band of Indians, a First Nation, acting on his own behalf and on behalf of all other members of the Band. The Band is centred at its Reserve at Kitkatla Inlet, located south-southwest of Prince Rupert.

[6]      The Band claims an aboriginal right to fish, including for food, social and ceremonial purposes, by traditional means for harvesting herring roe on kelp or boughs placed in the water at locations where herring are expected, or can be induced by net structures, to spawn in the herring spawning season, usually in a two-week period in March or early April in the Prince Rupert region. That traditional method allows for the harvesting of roe, deposited by spawning herring, which adheres to the kelp or boughs and permits the herring fish to survive and presumably to spawn again another year.

[7]      The evidence is uncontradicted that the Kitkatla people have not harvested sufficient herring roe for their needs for food and ceremonial purposes in recent years, including the years from 1996 to 1999 when there was no opening for a commercial roe herring fishery in Area 5, including Kitkatla Inlet.

[8]      On January 20, 2000 the respondent Minister approved the IFMP which for this year, licences for harvesting 600 tons of herring on kelp or boughs by First Nations, including the Kitkatla, represented in the Tsimshian Tribal Council, a regional organization of Bands in areas, including Kitkatla Inlet, along the north coast in the region of Prince Rupert. That 600 ton allocation was established by the Fisheries Department in 1994 after discussions between fisheries officers and representatives of the Tsimshian Tribal Council, though that figure was not one agreed to or accepted by the latter group, and they have declined to specify what in their view is an adequate allocation for the aboriginal rights claimed by First Nations of the region, including the Kitkatla, for their needs for food and ceremonial purposes. DFO officials appear to think the allocation is generous. At least it is higher than the Bands represented in the Council have harvested in recent years, though that recent experience may reflect a reduced stock of herring in the spawning season.

[9]      In addition to that allocation, the IFMP for 2000 provides an allocation of 1300 tons of herring roe for commercial fishery by seiners. In that fishery, herring are caught by seines and nets before the females spawn, they are hauled on board the seiners, and there are stripped of roe. The fish are killed in the process; they do not survive to spawn again. The commercial roe herring fishery, with its major market in Japan, has become a very valuable component in British Columbia"s fishing industry, particularly as the salmon fishery has declined in recent years with declining stocks.

[10]      The commercial roe herring fishery, as it operates, occurs before the fish spawn. The traditional fishery of the applicants by contrast, relies upon harvesting roe deposited on kelp or boughs after the fish spawn. Thus the sequence of the two fisheries is for the commercial fishery to precede the traditional native fishery at least in terms of access of the fish to spawning grounds.

[11]      That sequence, the recent experience of the Kitkatla people in not harvesting sufficient herring roe to meet their needs for food, social and ceremonial purposes, and their concern that the herring stock in 2000 at Kitkatla Inlet will not support the commercial fishery anticipated if an opening is authorized, give rise to the application for judicial review and to the application for an interlocutory injunction. The food, social and ceremonial use of the herring roe fishery, traditional uses of the Kitkatla people, they claim are served by their aboriginal right to fish, a right guaranteed by ss. 35(1) of the Constitution Act, 1982.

[12]      A few other aspects of the background are worth noting. As the evidence of the intervenors indicates, the commercial roe herring fishery on the north coast in the Prince Rupert region includes many aboriginal people engaged in the harvesting of roe herring and the processing of roe. As the applicant points out, the concern of the Kitkatla people is only to avoid an opening for a commercial fishery at Kitkatla Inlet, not in other locations in the Prince Rupert region or any of the other four regions where roe herring may be harvested. Even if that were done and no roe herring were harvested in the entire Prince Rupert area, that would result in only a modest reduction in the total allowable commercial roe herring catch provided for in the IFMP for 2000. The concern of the Kitkatla people is highlighted by the expectations of the parties and the intervenors that if there is a commercial opening in the Prince Rupert region, much of that fishery will be undertaken in Kitkatla Inlet, for most of the other areas where herring are known to spawn in the Prince Rupert region are said not to be physically or economically suitable for commercial seine fishing.

[13]      Finally, it is useful to sketch the process by which a commercial fishery may be authorized. Each year fisheries officers monitor the stock of herring, and the harvesting of fish and roe. At the end of the roe-herring and the herring roe fishing season each spring they assess their information, and the trends apparent over the years, to develop a harvesting plan for the following year. The process involves much consultation with, and participation of, industry representatives and also with representatives of aboriginal peoples. In the Prince Rupert region representatives of the Tsimshian Tribal Council, and of individual Bands, are involved in the consultative process. In preparing the plan for 2000, the Department ("DFO") provided a number of opportunities for Kitkatla representatives to participate in the planning process. Not all of those opportunities were taken by the Kitkatla. For the applicant, it is said there was a lack of meaningful consultation; for DFO it is urged that their efforts to consult were not utilized by the applicant and his people. Two things are clear. DFO has known for some months that the Kitkatla people were opposed to any commercial opening for roe herring at Kitkatla Inlet in 2000, and the process of consultation in preparation of this year"s fishery management plan did not resolve the differences between the DFO view of the likely abundance of roe herring stock in the Prince Rupert region and the concern of the Kitkatla that any commercial fishery at Kitkatla Inlet will adversly effect their traditional, aboriginal right to fish for food and ceremonial purposes.

[14]      The preparation of the fishery management plan by DFO leads to a recommendation to the Minister, a recommendation he accepted by approving the plan in January 2000. In so doing, he acted pursuant to s-s. 7(1) of the Fisheries Act, R.S.C. 1985 c. F-14 as amended, which provides:

7.(1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.

[15]      The Minister"s approval of the plan authorizes arrangements for the fishery in various areas, as set out by the plan. Within the plan"s framework licences are allotted, both for the aboriginal fishery and for the commercial fishery, but under regulations the fishery remains closed from January 1 to December 31 in each year, unless a regional fisheries officer, acting within authority on behalf of the Minister, declares, in light of his observations and experience in the region that the stock of fish will sustain harvesting, as authorized by the plan, in a given year. If he concludes it will, he declares an opening, a brief window for the fishery, and he may impose limitations on the locations of fishing activity within an area. If her concludes that the stock will not sustain the planned fishery he does not authorize an opening.

[16]      Thus the commercial or other fishery for roe-herring or for herring roe, requires two decisions, the Minister"s decision to authorize a fishery within the annual plan, and the decision, made on the water within each area that a fishery may be authorized, that an opening of the season for a commercial fishery or for aboriginal fishery of roe on kelp or boughs, is warranted in light of the apparent abundance of the stock. When this application was heard, the first decision by the Minister was made in January 2000, and the injunction sought, if granted, would restrain the Fisheries Management Coordinator - Prince Rupert from authorizing an opening at Kitkatla Inlet, but only at that location, in the year 2000.

[17]      A number of issues, some preliminary, some evidentiary were raised at the hearing of this matter by the parties and by the intervenors. Without seeking to resolve those issues, I turn to the merits of the application in light of the accepted test to be met by an applciation for an interlocutory injunction, the test established by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores Ltd. [1987] 1 S.C.R. 110 and RJR MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311.

[18]      The respondents and the intervenors urge that the first of the requirements, that there be a serious issue raised before the Court by the action or proceeding initiated by the applicant, is not here met. I conclude otherwise. I am satisfied that the issues raised by the application for judicial review are serious, that is, it is claimed that the Minister"s decision, implicit in the IFMP for 2000, was made without jurisdiction because of his failure to consider the existence , nature and scope of the aboriginal right of the applicant to harvest in Kitkatla Inlet, and that by exercise of unfettered discretion under s-s. 7(1) of the Fisheries Act , the Minister has infringed or threatens to infringe the aboriginal right of the applicants to fish for food and ceremonial purposes.

[19]      It is urged that proceedings by way of judicial review are inappropriate for judicial determination of the existence or scope of an aboriginal right claimed under ss. 35(1) of the Constitution Act, 1982. That is not an issue to be resolved by me at this stage. In my opinion a claim that an aboriginal right, already recognized in a generic sense by decisions of the Supreme Court of Canada and as a right that is to be given priority, which is claimed to exist and to be infringed or threatened to be infringed, as the application for judicial review here does set out, raises a very serious issue before the Court.

[20]      I am not, however, persuaded that the second requirement for an interlocutory injunction or restraining order is here met, that is, that if no injunction is issued the applicant will suffer irreparable harm between now and the final resolution of the serious issue, that is, by resolution of the application for judicial review, in favour of the applicant. It is urged that the exercise by the Minister of discretion, unfettered by Parliament in enacting the Fisheries Act in itself constitutes irreparable harm. I am not persuaded this is so, where the limitation on that discretion of concern to the applicants is in relation to recognition of an aboriginal right the existence of which is not yet established but is not denied by the respondent Minster whose decision here in issue in fact takes account of and seeks to provide an allocation for the aboriginal right to be met. Here there is no evidence that this allocation is unreasonable for the Bands in the Prince Rupert region. It is urged that the threat to the aboriginal right of the applicants specifically at Kitkatla Inlet gives rise to irreparable harm. Without, in any way, undermining the significance of the aboriginal right claimed, I note that if the needs to be served by exercise of that right are not met in 2000, it will be another year when that has been the case. While this emphasizes the necessity for long term accommodation of established aboriginal rights, with appropriate priority, within the regulation of the general public right to fish, failure to meet the needs of the Kitkatla people one more time, should that unfortunately occur, does not in and of itself constitute irreparable harm, in my opinion.

[21]      Moreover, at this stage there is no opening authorized for a commercial fishery. One may be authorized if the respondent Coordinator does so in light of his judgment as to the abundance of fish within a few days. He may decide there should be an opening, he may limit the location of any opening he authorizes, he may limit the period of the opening. The size of the catch is limited by licences and is monitored if an opening is announced. In short, there are many uncertainties at this stage. The harm the applicants fear, in my opinion, is speculative, at this stage. Even if there is an abundance of roe-herring perceived by the Coordinator as sufficient to warrant an opening of the commercial fishery, and if the opening includes fishing at Kitkatla Inlet, the harm the applicants fear will only arise if the abundance of the stock is over-estimated and a successful commercial fishery at the Inlet then impacts adversely upon the catch of roe on kelp that the applicants reasonably require to meet their needs for food and ceremonial purposes.

[22]      In sum, I am not persuaded that the harm feared by the applicants is established as likely to occur. Moreover, should it occur I am not persuaded that it would be irreparable in the circumstances of this case.

[23]      The tests for an interlocutory injunction are cumulative and the applicant must meet them all. The third test, that the balance of convenience favours the applicant, is particularly difficult to meet in a case where the party sought to be restrained, as here, is a Minister or public servant acting on the Minister"s behalf, within authority granted by Parliament and by regulations under an Act. It is not possible to meet this requirement where the applicant does not establish irreparable harm will occur to his interests, for it is presumed that the public interest in fulfilling responsibilities assigned by Parliament will be harmed if it is ordered that the exercise of those responsibilities be restrained.

CONCLUSION

[24]      On the merits of the applicant"s motion for an interlocutory injunction, while I agree that the application for judicial review has raised serious issues before the Court, I am not persuaded that failure to grant an interlocutory injunction as sought will cause irreparable harm to the applicants" interests in exercising their claimed aboriginal right to fish herring roe for food and ceremonial purposes, if that right should be established. In these circumstances the balance of convenience favours the respondent Minister, and those acting on his behalf, and the Court has no basis to interfere with his and their exercise of public statutory responsibilities.

[25]      For these reasons the application for an interlocutory injunction is dismissed.

                             (Sgd.) "W. Andrew MacKay"

                                 Judge

March 17, 2000

Vancouver, British Columbia

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS ON THE RECORD

COURT FILE NO.:      T-284-00

STYLE OF CAUSE:      Matthew Hill and Kitkatla Band

     v.

     The Minster of Fisheries and Oceans et al

PLACE OF HEARING:      Vancouver, British Columbia

DATE OF HEARING:      March 15, 2000

REASONS FOR ORDER OF      MacKay, J.

DATED:      March 17, 2000

APPEARANCES:

Mr. Robert Janes and

Ms. Pat Hutchings      For the Applicants

Mr. Harry J. Wruck      For the Respondents

Mr. J. Keith Lowes      For the Intervenors

SOLICITORS OF RECORD:

Woodward & Company

Barristers and Solicitors

Victoria, BC      For the Applicants

Morris Rosenberg

Deputy Attorney

General of Canada      For the Respondents

J. Keith Lowes

Barrister & Solicitor

Vancouver, BC      For the Intervenors