This case involved a Nova Scotia Indian Band which was relying upon the two R v. Marshall decisions (digested herein) in support of an application for an interlocutory injunction to enjoin D.F.O. from taking enforcement measures to prevent its members from participating in a Band regulated lobster fishery.
The two main issues in the case were:
(1)Whether the relief claimed was available on an interlocutory basis; and
(2) Whether the balance of convenience favoured the granting of an injunction.
With respect to the first issue, the court reconciled two somewhat inconsistent authorities to hold that “injunctions which finally determine rights, and therefore amount to a declaration of rights, ought not be made on an interlocutory basis” (para. 44) except in situations where (1) “the rights must be exercised immediately or not at all” or (2) “when the damage caused by the refusal of the injunction will make success at trial nugatory” (para. 51). Since the issue of treaty rights to fish for lobster would likely “stretch a long way into the future (para. 52), the court did not apply any of the exceptions to the general rule. Accordingly the Court ruled that the motion for interlocutory relief be dismissed.
Despite its dismissal of the motion, the court also gave its view on the application of the tripartite test for the availability of an injunction. In reviewing the test for determining the balance of convenience the court applied RJR-MacDonald Inc. v. Canada [1991] 1 S.C.R. 311 to find that in constitutional type cases, one must look at the public interest. Once it is established that the government authority is charged with the duty of promoting the public interest and that the “impugned legislation, regulation, or activity was undertaken pursuant to that responsibility” . . . “the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action” (para. 65). Since the impugned conduct was the enforcement activities of the Department Fisheries against persons fishing without licences, the court ruled, that “the public interest is against creating a vacuum of authority”. Accordingly the court found that the balance of convenience did not favour granting an injunction.
