Docket:
T-404-14
Citation: 2014 FC 197
Ottawa, Ontario, February
28, 2014
PRESENT: The
Honourable Mr. Justice Mandamin
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BETWEEN:
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THE AHOUSAHT, EHATTESAHT, HESQUIAHT, MOWACHAHTÉMUCHALAHT AND
TLA-O-QUI-AHT INDIAN BANDS AND NATIONS
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Applicants
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and
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MINISTER OF FISHERIES AND OCEANS
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Respondent
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REASONS FOR ORDER AND ORDER
Introduction
[1]
The Applicant First Nations bring a motion for
an interlocutory injunction prohibiting the opening of a commercial roe herring
fishery on the West Coast of Vancouver Island, until their application for
judicial review of the Minister of Fisheries and Oceans Canada’s decision to
approve the Integrated Fisheries Management Plan for Pacific Herring including
a commercial fishery on the WCVI can be heard.
[2]
For the reasons that follow, I granted the
request for an injunction on Friday, February 21, 2014. These are my oral
reasons more fully set out in words.
Background
[3]
The Applicants are five Nuu-chah-nulth First
Nations located on the West Coast of Vancouver Island: Ahousaht, Ehattesaht,
Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht.
[4]
The Applicants’ Aboriginal right to fish and
sell fish was recognized and affirmed by the decision of the British Columbia
Supreme Court, Ahousaht Indian Band v Canada (Attorney General), 2009
BCSC 1494 [Ahousaht], aff’d 2011 BCCA 237, 2011 CSCR 353, aff’d 2013
BCCA 300, leave to appeal to SCC refused, 34387 (January 30, 2014). While that
decision was the subject of appeals, the finding that the Applicants have an
Aboriginal right to fish and sell fish was undisturbed. Justice Garson specifically
ordered:
4. The parties now have the opportunity to consult and negotiate the
manner in which the plaintiffs' aboriginal rights to fish and to sell fish can be
accommodated and exercised without jeopardizing Canada's legislative objectives and societal interests in regulating the fishery.
(Ahousaht at
para 909, emphasis added).
[5]
Justice Garson also noted the parties have leave
to return to Court to address the issue of justification and infringement of
the Applicants’ Aboriginal rights to fish and sell fish if, after a two year
period, the parties remain unable to reconcile the various interests at stake (Ahousaht
at para 906). The parties are currently set to return to the British
Columbia Supreme Court on March 2, 2015.
[6]
The Respondent Minster is responsible for the
Department of Fisheries and Oceans Canada (DFO), which administers and manages
the commercial roe herring fishery. The herring are harvested for their roe,
which is a valuable commodity. The commercial herring fishery is divided into
five different stock areas: the West Coast of Vancouver Island (WCVI), the
Straight of Georgia, the Central Coast, Prince Rupert, and Haida Gwaii.
[7]
One of those stock areas, the WCVI, includes
portions of the traditional fishing territories of the Applicants. Roe herring
fisheries in the WCVI occur soon after the license conditions are issued, and
can commence within days of issuance.
[8]
The WCVI area has been closed to general
commercial herring fishery for nine years (since 2006) due to conservation
reasons.
[9]
Stock assessments on WCVI have shown that the
herring returns are forecast to exceed the cut-off point used by DFO to
consider if there should be a commercial roe herring harvest. In the past,
commercial roe herring harvest rates have been set at 20% of mature herring.
[10]
The commercial fishing industry has recommended
a commercial roe herring fishery this season, albeit at reduced harvesting
rates.
[11]
DFO management considered such an option, and
noted in a memorandum for the Minister dated December 9, 2013 discussed
allowing “some harvest but at a more conservative 10% harvest rate until the
harvest management strategy is evaluated.”
[12]
DFO management ultimately recommended to the
Minister that the WCVI remain closed to a commercial roe herring fishery for
the 2014 season in order to continue work on licence fee reform, renewing the
current management framework, and working with industry to maintain necessary
science activities. In the memorandum for the Minister the Department noted it
may need to negotiate an agreement with the First Nations Applicants and stated
“the Department would like to see more evidence of a durable and sustained
recovery before re-opening.”
[13]
The Minister did not concur with the
Department’s recommendation, and the following notation was made: “The
Minister agrees to an opening at a conservative 10% harvest rate for the 2014
Fishing season in the three fishing areas.”
Summary of
Submissions
[14]
The Applicant First Nations place great
significance and rely upon the duty owed by Canada to the Applicants arising
out of the BC Supreme Court decision in Ahousaht. The Applicants submit
there is a serious issue to be tried as to whether the opening of the WCVI to
commercial herring fishing is a breach of Canada’s duties to negotiate with the
First Nations as well as because of the conservation concerns of
the Applicant First Nations.
[15]
The Applicants submit that re-opening the
commercial roe herring fishery in 2014 will cause irreparable harm because the
unique opportunity to accommodate their constitutionally protected rights will
be lost, and also because of any adverse impact on the rebuilding of the WCVI
herring stocks that may result from this opening will harm and further
delay the implementation of their recognized Aboriginal rights for a
community-based roe herring fishery and right to sell fish.
[16]
The Applicants submit that the balance of
convenience favours them because the status quo would be to maintain the
closure of the WCVI herring fishery for conservation purposes, and because the
opening is unnecessary as openings in the other management areas are able to
provide sufficient herring stock in excesses of the total allowable catch
currently planned for WCVI.
[17]
I note the Applicants, in keeping with their
conservation concerns, did not apply to fish in the proposed WCVI commercial
roe herring fishery.
[18]
The Respondent submits that the Applicants were
adequately consulted on the decision to re-open the WCVI fishery, while
stressing that the application currently before the Court is not about whether
the Minister breached its duty to consult the Applicants. The Respondent
concedes that this is a serious issue to be tried in the judicial review.
[19]
The Respondent maintains the Applicants cannot
establish irreparable harm because the issue of justification in Ahousaht
is still before the Courts, and because, in addition to conservation and
protection, the Minister’s responsibilities embrace commercial and economic
interests as well as Aboriginal rights.
[20]
With respect to the harm that may be caused to
herring stocks by opening the WCVI, the Respondent states DFO applies a
“precautionary approach” with the goal of protecting vulnerable stocks. With
respect to the balance of convenience, the Respondent highlights the negative
financial and logistical impacts of an injunction on the WCVI herring licence
holders, who have by now made business decisions and plans based on the
assumption of an open fishery in that area.
[21]
The intervener, the BC Seafood Alliance,
provided information about the herring fishery and its financial impact, but
refrained from making legal submissions. The Court thanks counsel for the
Intervener for the information provided.
Analysis
[22]
The test for an interlocutory injunction is a
three part conjunctive test as set out in RJR-MacDonald
Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311 [RJR-MacDonald].
It requires that the Applicants demonstrate:
1.
a serious issue arises;
2.
irreparable harm will occur if the injunction is
not granted; and
3.
the balance of convenience favours the
injunction
[23]
Whether the test for an interlocutory injunction
has been satisfied should normally be determined with a limited review of the
case on its merits (RJR-MacDonald at para 78). When, however, the
requested relief is similar to the relief sought on the disposition of the
underlying judicial review application, a more extensive review of the merits
should be conducted.
[24]
In this case, while I have not engaged in a complete
review of the case on its merits, I have been mindful that the requested
injunction is similar to the relief requested on judicial review and have
considered the merits more extensively. However, I do not consider that
granting of an interlocutory injunction would necessarily render the underlying
judicial review moot.
Serious Issue
[25]
The Applicant submits and the Respondent
concedes a serious issue arises. I do find on review of the evidence in the
parties’ materials that a serious issue arises with respect to:
a)
conservation issues concerning the WCVI herring
fishery; and
b)
the acknowledged Aboriginal rights of the
Applicants to fish and sell fish in relation to the WCVI fish stock area.
Irreparable
Harm
[26]
Irreparable harm refers to the nature of the harm
rather than its magnitude (RJR-MacDonald at para 79). On the matter of
irreparable harm, I find the prospect of irreparable harm arises if the
Minister is not enjoined from opening the WCVI fishery given:
a)
the Respondent Fisheries and Oceans Canada recommended
the WCVI fishery not be opened for 2014 for reasons of conservation. This
recommendation was not accepted by the Minister.
b)
the Applicants’ repeated concern that the WCVI
fishery has not sufficiently recovered, and the need to consider their views on
conservation. The Supreme Court has repeatedly noted the importance of
conservation within the Sparrow justification framework and questions of
“whether the Aboriginal group in question has been consulted with respect to
the conservation measures being implemented” are an issue to be addressed (R
v Sparrow, [1990] 1 S.C.R. 1075 at 1119).
c)
The setting of the total allowable catch at 10%
instead of 20% as a precautionary measure is, in my view, “fudging the
numbers.” It is not science-based, but in effect a statement “there is a
conservation concern here, but if the fishery is to be opened, take less.”
Adoption of this approach is being used to sidestep the conservation
assessment. It seems to me once the Minister and the DFO depart from
science-based assessments the integrity of fisheries management system is
harmed.
[27]
Furthermore, irreparable harm arises in that the
Applicants lose their position and opportunity to reasonably participate in
negotiations for establishment of their constitutionally protected Aboriginal
rights to a community-based commercial herring fishery. Once commercial
fishing is allowed, the expectation of continued interests by the commercial
fishery will mean the opportunity for a complete examination of “the manner in
which the plaintiffs' aboriginal rights to fish and to sell fish can be
accommodated and exercised” (Ahousaht at para 909) will have
passed.
[28]
The Federal Court of Appeal stated in Musqueam
Indian Band v Canada, 2008 FCA 214 [Musqueam] that inadequate
consultation does not always constitute irreparable harm (at para 52). It seems
to me this case can be distinguished from Musqueam and other cases where
the failure to consult was deemed insufficient to constitute irreparable harm.
This is because the Applicants have established an Aboriginal right to fish and
sell fish and are therefore operating within an established rights legal
framework and because they are in the process of negotiating the manner in
which the Applicants' Aboriginal rights can be accommodated and exercised.
Balance of
Convenience
[29]
In addition to the damage each party alleges it
will suffer, public interest must also be taken into account when considering
the balance of convenience (RJR-MacDonald at para 80). The public
interest is more than the public interests as between the Applicants and the
Minister, or the Applicants and the commercial fishing sector. Rather, it is
the public interests as a whole which flow from whether relief sought is
granted or not.
[30]
Public interest in the reconciliation of s. 35
Aboriginal rights with the assertion of Crown sovereignty clearly favours the
Applicants. Section 35 is a constitutional declaration that Canada is a country where existing Aboriginal rights and titles are recognized and affirmed:
Section
35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal
claims. In all its dealings with Aboriginal peoples, the Crown must act
honourably, in accordance with its historical and future relationship with the
Aboriginal peoples in question
(Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 at para 24).
[31]
The public interest also lies with giving
recognition to Court declarations and directions, especially when the Supreme
Court of Canada has repeatedly emphasized negotiation and accommodation
agreements as the better way to address the exercise of Aboriginal rights. In Haida
Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 25,
the Supreme Court stated:
Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many
bands reconciled their claims with the sovereignty of the Crown through
negotiated treaties. Others, notably in British Columbia, have yet to do so.
The potential rights embedded in these claims are protected by s. 35 of the Constitution
Act, 1982. The honour of the Crown requires that these rights be
determined, recognized and respected. This, in turn, requires the Crown, acting
honourably, to participate in processes of negotiation. While this process
continues, the honour of the Crown may require it to consult and, where
indicated, accommodate Aboriginal interests.
(See also Delgamuukw
v British Columbia, [1997] 3 S.C.R. 1010 at 1123)
In short,
reconciliation benefits the public interest.
[32]
To ignore or disregard such Court declarations
and directions is not only to ignore the obligation to follow Courts’ direction
with respect to addressing Aboriginal rights, but also to lower the standing of
the Courts in public regard by the disregard for such declarations and
directions.
[33]
There is an impact on the commercial fishing
sector, but that arises from the Minister’s decision to open the WCVI roe
herring fishery. This impact can be mitigated to a degree by reallocation, as
the DFO may reissue licences and move any displaced licence holders to
different fishery locations where there is a satisfactory abundance of herring
stock.
[34]
In any event, the commercial fishing sector’s
preference for a WCVI roe herring fishery is the possible securing of a higher quality
catch, which would be more valuable in terms of strategic marketing. This
weighs much less in the balance of convenience as against the acknowledgement
of the opportunity for a First Nations people to practice their recognized
Aboriginal right to fish and sell fish and reclaim their heritage.
[35]
Public interest also favours the upholding of
the DFO conservation approach to the WCVI herring fishery lest the fishery be
harmed. By observing conservation needs, the public will benefit from
commercial roe herring fishery opportunities in the WCVI area in the future and
the Applicants will have a future opportunity to be able to exercise their
rights.
[36]
Finally, an interlocutory injunction enjoining
the Minister from opening the WCVI herring fishery in the circumstances of this
proceeding does not seriously constrain the Minister from exercising the
responsibilities and discretion for fisheries management. This is not an
instance where the Minister has chosen, with the support and advice of DFO and
the assessment of scientific evidence, to make a discretionary decision
concerning the fishery.
[37]
I have considered the impact of the lack of an
undertaking as to damages. The Applicants request they not be required to
provide an undertaking but say they will if it is considered necessary.
[38]
Federal Court Rule 373(2) states that:
(2) Unless a
judge orders otherwise, a party bringing a motion for an interlocutory
injunction shall undertake to abide by any order concerning damages caused by
the granting or extension of the injunction.
(Emphasis added)
The lack of an
undertaking is not always fatal to an applicant (RJR-MacDonald at para
50; Soowahlie Indian Band v Canada (Attorney General), 2001 FCA 387 at
para 13), but it is a relevant consideration.
[39]
In Musqueam, the Federal Court of Appeal noted that:
the
default position under this provision [Rule 373(2)] is that a limited
undertaking should not be accepted unless a the Court is presented with some
evidence with respect to compelling circumstances that warrant a limited
undertaking or no undertaking (at para 62, emphasis in original).
[40]
In Musqueam, for example, the Court indicated
that Public Works and Government Services might possibly lose $33 million
dollars as a result of any injunction (at para 66). This is not the case at
hand, where the Minister cannot be said to face the possibility of such a
substantial loss.
[41]
In Taseko Mines Ltd. v Phillips, 2011 BCSC 1675,
Justice Grauer illustrates at para 70 the types of considerations
warranting such discretion:
I conclude that the circumstances of this
case justify an order relieving the petitioners of the obligation to give an
undertaking as to damages. Those circumstances are: my assessment of the
balance of convenience as outlined above; the importance of ensuring that
matters proceed on an appropriate basis between these parties for the
foreseeable future; and the relative economic strength of the parties and the
relative harm each is likely to suffer. I also take into account the petitioners'
letter to Taseko of October 13, 2011, in which they notified Taseko of their
position, and advised Taseko not commence any activities under the permits
while the Tsilhqot'in National Government considered its options for response.
[42]
The Applicants gave notice of their intentions to
the Minister and to the commercial fishery to make this application. They
refrained from participating in the WCVI commercial roe herring fishery. The
Applicants do not obtain any financial gain by the continuation of the
conservation closure of the 2014 WCVI roe herring fishery. All benefit by
maintaining the closure for conservation purposes in order to allow the WCVI herring
fishery to recover.
[43]
Additional considerations are that the closure
is in accord with the DFO assessment and recommendation and reallocation of
licences to other herring fish stock areas is possible.
[44]
I am satisfied the circumstances of this case
support an order relieving the Applicants of the obligation to give an
undertaking with respect to damages.
Costs
[45]
Finally, on the matter of costs, the
Applicants have been successful on their motion and would be entitled to
costs. There costs as against the Intervener, who was an intervener for the
interlocutory application only, and who presented the Court with information in
its brief presentation.
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