In this case the applicants were a group of five First Nations located on the West Coast of Vancouver Island who had recently had their right to to fish and sell fish affirmed by the Supreme Court of B.C. with the issue of justification and infringement to be later determined. When affirming this right, the court had given the parties a period of time to consult and attempt to negotiate the manner in which the aboriginal rights to fish and sell fish would be exercised. During this period the the Minister made a decision for a small scale opening of the commercial roe herring fishery, despite the fact that his officials had recommended keeping the fishery closed. It was also noteworthy that the fishery had been closed for the previous nine years because of conservation concerns. Shortly before the commencement of the commercial fishery, the group of First Nations brought an application for an interlocutory injunction.
The issues addressed by the court were as follows:
1) Does a serous issue arise;
2) Will irreparable harm occur if the injunction was not granted; and
3) Does the balance of convenience favour the injunction.
DOES A SERIOUS ISSUE ARISE
Without a great deal of analysis, the court found a serious issue arose with respect to:
a) Conservation issues concerning the fishery; and
b) The acknowledged Aboriginal rights of the Applicants to fish and sell fish.
The court found that there would be irreparable harm because of:
a) Serious conservation concerns;and
b) The Applicants would "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 [para. 27].
Although inadequate consultation does not always constitute irreparable harm, the court distinguished Musqueam Indian Band v. Canada, 2008 FCA 214 on the basis that "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. [para. 28].
BALANCE OF CONVENIENCE
In finding the the the balance of convenience favoured the applicants, the Court emphasized the need to consider the public interest in ensuring that the Crown followed the previous court’s direction to participate in negotiations concerning how the applicant group would exercise its fishing rights.
The public interest also favoured conservation.
Given its finding as described above, the Court granted an interlocutory injunction prohibiting the Minister from opening the West Coast of Vancouver Island commercial herring fishery. It also relieved the applicants from the normal requirement of having to give an undertaking as to damages.
Editor’s Note: At the time of writing, this decision was under appeal.