February 27, 2015

Injunctions: Ahousaht First Nation v. Canada (Fisheries and Oceans)


Five Nuu-chah-nulth First Nations sought an injunction against a commercial roe herring fishery opening on the West Coast of Vancouver Island. The bases for the application for the injunction were that the herring stock should not be open to a commercial roe fishery until the court-established Aboriginal fishing rights were accommodated and their conservation concerns regarding the herring stock addressed.

The court did not find irreparable harm. The Department of Fisheries had recommended to the Minister that the herring fishery be opened in all the West Coast of Vancouver Island, and it predicted that the herring returns would amount to more than double the cut-off level that had been set for assessing whether a fishery would be allowed. The Nations’ expert was not able to refute DFO’s predictions.

The court also addressed the balance of convenience and found that it tipped in favor of the Minister; these Nations’ Aboriginal rights continued to be defined and accommodated through ongoing negotiations, and through a pending judicial process in the BCSC. The court noted that other license holders who had selected the West Coast of Vancouver Island to fish for herring would be adversely impacted. Additionally, the court reasoned that Canada’s approach to fisheries management should be afforded considerable deference by courts. For these reasons, the court refused to the grant the injunction.

Ahousaht First Nation v. Canada (Fisheries and Oceans), 2015 FC 253

Lisa C. Fong, Michael Ng, and Siddharth Akali