Docket: T-70-15
Citation:
2015 FC 253
Vancouver, British Columbia, February 27, 2015
PRESENT: The Honourable Mr. Justice Manson
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BETWEEN:
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THE AHOUSAHT, EHATTESAHT, HESQUIAHT, MOWACHAHT/MUCHALAHT, 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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ORDER AND REASONS
[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 [WCVI], until their
application for judicial review of the Minister of Fisheries and Oceans
Canada’s [the Minister] decision to approve the Integrated Fisheries
Management Plan for Pacific Herring [IFMP].
[2]
For the reasons that follow, the application for
an injunction is dismissed.
I. 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 [BCSC] in Ahousaht Indian Band v Canada (Attorney General),
2009 BCSC 1494 [Ahousaht], aff’d 2011 BCCA 237, aff’d 2013 BCCA 300,
leave to appeal to SCC refused, 34387 (January 30, 2014).
[5]
The BCSC directed that Canada and the Applicants consult and negotiate how the Aboriginal Rights can be
accommodated, and gave either party liberty to return to court to have the
matter of justification tried, if negotiations are not successful. The
negotiations have, to date, failed and the Applicants’ Aboriginal Rights,
including with respect to herring, are being contested. The parties are set to
return to the BCSC next month.
[6]
The WCVI commercial roe herring fishery has been
closed to commercial harvest since 2006, due to low abundance and related
conservation concerns about the WCVI herring stocks. In 2014, Department of
Fisheries and Oceans [DFO] staff recommended to the Respondent Minister that
she maintain the closure for 2014, noting that the Department would like to see
“more evidence of a durable and sustained recovery before
re-opening”.
[7]
Notwithstanding DFO’s advice, the Minister
directed that the commercial fishery be opened. However, Justice Mandamin of
this Court granted the Applicants an interlocutory injunction, to prevent the
opening of the WCVI fishery in 2014, for reasons that included the Applicants’
conservation concerns with regard to herring stocks and Canada’s alleged unfulfilled obligations to negotiate accommodation of the Applicants’
Aboriginal Rights.
[8]
Once again, the Applicants oppose opening the
WCVI to commercial roe harvesting for 2015. They assert that the WCVI stock
should not be opened to a commercial roe herring fishery until their Aboriginal
Rights are accommodated and conservation concerns are addressed.
[9]
Stock assessments on the 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 WCVI area.
The affidavit of Nathan Taylor sets out the science relied upon by DFO. In
summary, there is approximately a 1% probability that the stock will be below
the “cut-off” level of 14,436 tonnes in 2015.
Projections are that the stock will be 31,505 tonnes, which is 17,079 tonnes
above the cut-off; expressed as a ratio, the stock will be 2.18 times the
cut-off amount. That evidence was not refuted by the Applicants’ evidence or by
Dr. Hall in his reply evidence.
[10]
On November 24, 2014, DFO sought a decision from
the Minister of the herring harvest level for the 2015 fishing season. Based
upon the latest scientific information, consultation and its management
objectives, DFO recommended to the Minister that the herring fishery be opened
in all five major areas of the Pacific Region. This included three areas that
have recently been closed, one of which is the WCVI.
[11]
In contrast to the situation one year ago, when
Justice Mandamin issued an injunction with respect to the roe herring fishery
in the WCVI area:
a) both of the options offered to the Minister by DFO this year involve
opening of the fishery:
i. option 1, which in the three previously closed areas, including the
WCVI area, would be at a 15% harvest rate for a total harvest quantity of
13,393 short tons; or
ii.
option 2, a more conservative option, in which
the three-previously-closed areas would be at a 10% harvest rate for a total
harvest quantity of 8,729 short tons.
[12]
The Minister chose the recommended second, more
cautious level of harvest, provided in option 2 by DFO.
[13]
While the Applicants and the Respondent have not
reached an agreement on the form of accommodation of the Applicants’ Aboriginal
fishing rights, there is clear evidence of ongoing consultations and
negotiation between the Respondent’s representatives and the Applicants’ to
reach a settled accommodation.
[14]
The Applicants argue that the decision to reopen
the roe herring fishery in the WCVI area raises conservation concerns for the
First Nations Applicants, that it is too early to re-open the WCVI roe herring
stock, and that given the roe herring openings in the Strait of Georgia and
Prince Rupert District, there is no need to re-open the WCVI area.
[15]
As argued before Justice Mandamin a year ago,
the First Nations Applicants rely upon the duty owed by Canada to the Applicants arising out of the BCSC and BCCA decisions, 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, and raises serious conservation
concerns of the First Nations Applicants.
[16]
The Applicants also submit that re-opening the
commercial roe herring fishery in 2015 will cause irreparable harm, because the
unique opportunity to accommodate their constitutionally protected rights will
be lost, and because of the 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.
[17]
However, as pointed out by the Respondent, it is
also important to the public interest of Canadians that Canada’s fisheries, as
a significant and important resource belonging to all the people of Canada, are
properly managed, conserved and developed for the benefit of all Canadians. The
Minister’s fisheries power includes not only conservation and protection, but
also embraces commercial and economic interests, Aboriginal Rights and
interests, and the public interest in sport and recreation.
II. The test for an Interlocutory Injunction
[18]
The well-established test for an interlocutory
injunction is set out in the Supreme Court of Canada case of RJR-MacDonald
Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 at para 43. The party
seeking an interlocutory injunction must prove:
i)
There is a serious issue to be tried;
ii) Irreparable harm would result if an injunction is not granted; and
iii)
The balance of convenience, considering all the
circumstances, favours granting the order.
[19]
The test is conjunctive, and all three criteria
must be satisfied to obtain interlocutory injunctive relief.
A. Serious Issue to be Tried
[20]
The parties are agreed that there is a serious
issue to be tried. The regulation of Canada’s fisheries and the Crown’s duty to
consult and to accommodate First Nations’ rights to fish and sell fish raise
serious issues (Ahousaht, at paras 26-28).
B. Irreparable Harm
[21]
If an interlocutory injunction is not granted,
the Applicants allege that:
a. There could be harm to the herring stock and that the decision to
open the fishery therefore does harm them; and
b. A unique opportunity to accommodate their established Aboriginal
fishing rights after a lengthy closure of the fishery will be lost.
[22]
The Applicants must prove that the alleged
irreparable harm is real and substantial, and the evidence required to prove
irreparable harm must be clear, not speculative. It is not sufficient to
speculate that irreparable harm is “likely” to be suffered (United States
Steel Corporation v Canada (Attorney General), 2010 FCA 200 at para 7).
[23]
The requirement for proof of non-speculative
harm applies even where an applicant alleges that the impugned conduct is based
on allegations of unconstitutionality (International Longshore and Warehouse
Union, Canada v Canada (Attorney General), 2008 FCA 3 at para 26).
[24]
While the Applicants’ argue that re-opening the
WCVI area to roe herring fishery “raises conservations
concerns” and “puts the implementation of their
established Aboriginal Rights at risk”, with respect, these concerns
are, at best, speculative, and based on the scientific evidence before me, as
well as the evidence of on-going, good faith negotiations by the Respondent to
consult with and accommodate the First Nations Applicants’ fishing rights in
the WCVI area, I do not find that the Applicants have made out a case of
irreparable harm. While there may be disagreement about management decisions
concerning the roe herring fishery in the WCVI area, an agreement has not yet
been reached on an accommodated settlement, that is no basis for a finding of
irreparable harm.
[25]
Moreover, I also agree with the Respondent that
there is no reason to assume that the Applicants’ rights cannot or will not be
reasonably and fairly accommodated simply because other commercial interests
participate in a limited commercial fishery in the WCVI area.
C. Balance of Convenience
[26]
Given my decision on lack of irreparable harm,
the Applicants’ application for an interlocutory injunction must fail.
[27]
However, when I consider the balance of
convenience, as it affects the stake-holders in this matter, I also conclude
that the balance tips in favour of the Respondent. As pointed out by the
Respondent, the process by which the Applicants’ rights as declared in the Ahousaht
proceeding are being further defined and accommodated continues through the
ongoing negotiations between DFO and the Applicants and through the pending
judicial process in the BCSC.
[28]
While there is no question that this process of
accommodation is complicated, its ultimate goal is reconciliation of the
Applicants’ rights with those of society at large. As was recognized by the
Supreme Court of Canada in Delgamuukw v British Columbia, [1997] 3 SCR
1010 at para 186:
…Ultimately, it is through negotiated
settlements, with good faith and give and take on all sides, reinforced by the
judgments of this Court, that we will achieve what I stated in Van der Peet,
supra, at para. 31, to be a basic purpose of s. 35(1) -- "the
reconciliation of the pre-existence of aboriginal societies with the
sovereignty of the Crown". Let us face it, we are all here to stay.
[29]
Further, as provided in the evidence before me,
if an injunction issued to enjoin the Minister from opening the WCVI, the 15
gillnet licence holders and 7 seine licence holders who have in good faith
selected the WCVI to fish will be adversely impacted.
[30]
Moreover, the window of time in which the 2015
fishery will occur is very tight – early March only. There is a real risk that
fishing opportunities may be lost altogether if DFO is unable to re-issue
licence conditions in time.
[31]
This potential loss should be weighed against
the fact that the four of the five Applicants who have access to commercial
licenses for roe herring will not lose any opportunity to fish arising from the
closure, as these licenses will be fished this year in the Strait of Georgia.
[32]
Moreover, I must recognize, as Justice Garson
did in the BCSC in the Ahousaht case, Canada’s approach to fisheries
management should be afforded considerable deference. Without having to decide
the issue of whether an absence of an undertaking as to damages should
negatively impact the Applicants’ position, I nevertheless find that the
balance of convenience favours the Minister, for the reasons given above.
III. Interveners
[33]
The B.C. Seafood Alliance and B.C. Wildlife
Federation seek to intervene pursuant to Rule 109 of the Federal Courts
Rules. The Interveners seek to make submissions on the nature and scope of
industry’s interest in and participation in the roe herring industry and the
impact of the injunctive relief sought by the First Nations Applicants in this
proceeding.
[34]
However, the Interveners seek to introduce an
issue or issues not before the Court, thereby trying to introduce a new matter
in this proceeding. The motion is brought on the eve of this interlocutory
injunction hearing, and given the representations of both the Applicants and
the Respondent, I fail to see how the Interveners’ assistance is needed for me
to decide the application (Ontario Federation of Anglers and Hunters v
Alderville Indian Band), 2014 FCA 145 at para 35).
[35]
The motion to intervene is dismissed.
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