GWA’SALA–’NAKWAXDA’XW NATION Applicant v. MINISTER OF FISHERIES AND OCEANS, 2021 FC 237

Date: 20210317 Docket: T-425-21 Citation: 2021 FC 237 Ottawa, Ontario, March 17, 2021 PRESENT: The Honourable Madam Justice Strickland BETWEEN: GWA’SALA–’NAKWAXDA’XW NATION Applicant and MINISTER OF FISHERIES AND OCEANS Respondent ORDER AND REASONS [ 1 ] Gwa’sala-’Nakwaxda’xw Nation [GNN] brings this motion seeking an interlocutory injunction enjoining the Minister of Fisheries and Oceans [Minister] from opening a commercial spawn-on-kelp [SOK] herring fishery in Pacific Fisheries Management Area 10 [Area 10].

The motion is brought in relation to an application for judicial review filed by GNN on March 5, 2021 challenging the February 19, 2021 decision of the Minister approving the 2020-2021 Pacific Herring Integrated Management Plan [2020-2021 IFMP or Plan] and, thereby, authorizing the Area 10 SOK herring fishery. [ 2 ] As set out in GNN’s Notice of Motion, GNN seeks: An interim or interlocutory injunction pursuant to Rule 373(1) of the Federal Courts Rules enjoining the Minister of Fisheries and Oceans (the “Minister”), a Regional Director General, or a Fishery Officer from opening a commercial roe herring fishery in Pacific Fishery Management Area 10 under the Fishery (General) Regulations , SOR/93-53 , ss. 6(1) and (2) and the Pacific Fishery Regulations , SOR/93-54 , pending hearing of this Application for Judicial Review. [ 3 ] In a March 5, 2021 letter accompanying the filing of the application for judicial review, GNN advised that the injunction motion was a matter of considerable urgency as it was expected that the commercial roe herring fishery in Area 10 would open as early as March 15, 2021. [ 4 ] Following a case management meeting held on Tuesday, March 9, 2021, it was agreed that counsel for Canada would file a responding motion record by end of day on Friday, March 12, 2021 and that the motion would be heard on Monday, March 15, 2021.

This scheduling was premised on the agreement and undertaking of the Department of Fisheries and Oceans [DFO] not to open the Area 10 SOK fishery before Thursday, March 18, 2021. [ 5 ] Given this limited time frame, I have not referenced every matter addressed in every submission or affidavit filed by the parties, nor every of the many cases cited by the parties in their submissions. However, I have carefully reviewed and considered all of the materials filed by the parties in reaching my decision.

Background – GNN’s Perspective [ 6 ] In support of their motion, GNN filed an affidavit of Chief Paddy Walkus, elected chief of GNN, sworn on March 7, 2021 [Walkus Affidavit]. I summarize below some the content of the Walkus Affidavit as it sets out GNN’s perspective on the events leading up to the injunction motion. [ 7 ] Chief Walkus states that the waters within GNN’s traditional herring roe fishery fall within Area 10. He describes living with his with his grandfathers, growing up in Smith Inlet and participating in the herring roe harvest.

Chief Walkus deposes that under GNN law the right to gather resources comes with a corresponding duty to protect and preserve those resources. GNN people thought of themselves as stewards of the land with a responsibility to protect the natural world for future generations. The GNN way of life depended upon living in concert with those teachings.

His grandfathers identified him as a " “caretaker” " and, as such, it was his responsibility to ensure that his family’s harvesting practices complied with GNN’s obligation to preserve the resources on which they relied. [ 8 ] Chief Walkus states that GNN continues to assert Aboriginal title over the traditional territories from which the GNN were displaced and the right to manage the resources of those territories in accordance with GNN traditional laws, knowledge and customs.

GNN considers its laws to be binding on GNN peoples and on all those who use GNN territories. [ 9 ] In that regard, since 2018, GNN Band Council has made efforts to incorporate traditional laws and protocols into its decision making process. The GNN Band Council has also taken specific measures to implement GNN law over marine territories. This includes a May 13, 2018 GNN Band Council resolution requiring commercial and sport fisheries within GNN territories to remain closed to those persons who have not been granted the right to fish under GNN’s traditional laws.

The GNN also passed a June 28, 2018 band council resolution instating a policy on the exercise of fishing rights, directing GNN members to engage in the fishery in accordance with GNN customs, traditions and law. [ 10 ] The Walkus Affidavit states that despite its importance to GNN’s traditional herring roe fishery, DFO does not consider Area 10 to be even a minor fishery, it has no formal stock assessment in place and devotes almost no resources to monitoring and protecting the

herring stock. He states that in the mid 2000’s the Area 10 herring stock "“collapsed”" and from 2010 to 2015 the commercial herringfishery was closed. DFO reopened Area 10 in 2016. Further, that GNN receives limited funding to conduct dive surveys of the herringspawn in Area 10 and to monitor the health of the herring stocks.

Other than as a stakeholder among other stakeholders, GNN plays norole in DFO’s decision-making process regarding Area 10. [11] Chief Walkus states that in 2018 "“troubling”" signs began to appear with respect to the health of the herring stocks, asdemonstrated by the results of the GNN 2018 dive survey. GNN communicated these concerns to DFO but in February 2019 theMinister approved the 2018-2019 IFMP which permitted a commercial fishery in Area 10, despite GNN’s objections.

On February 12,2019, GNN wrote to DFO expressing its opposition to the commercial fishery opening and setting out the rational for its position. WhileDFO responded by letter of March 20, 2019, Chief Walkus deposes that the response did not address GNN’s concerns. GNN did notparticipate in either the Area 10 commercial or the food, social and ceremonial [FSC] fishery that year. [12] Chief Walkus deposes that the GNN dive survey results for the 2019 season were also disappointing. In late 2019, GNN met withDFO several times to discuss its concerns.

During these meetings GNN explained that it had significant concerns about the heath of theherring stocks and the impact that another season of commercial fishing might have on those stocks. GNN informed DFO of GNN’slegal obligation to steward its traditional territory and protect the herring stocks, as well as the importance of the herring to GNN’sculture, governance and economy. Despite these concerns, DFO decided to permit a commercial opening in Area 10 under the 2019-2020 IFMP. GNN wrote to DFO on February 27, 2020 to again express its continued opposition to commercial fishery openings in Area10.

GNN Band Council again determined that GNN could not lawfully participate in the fishery that year. [13] Chief Walkus states that in 2020 the GNN dive survey was delayed due to the Covid-19 pandemic. However, when it proceeded,GNN biologists discovered no sign of herring or herring roe. This heightened GNN’s concerns about the state of the stock. In late 2020,GNN met with DFO on several occasions to express those concerns. On January 4, 2021, GNN wrote to the Minister expressing theirconcerns and requesting an urgent meeting.

However, on February 19, 2021 DFO announced the approval of the 2020-2021 IFMP whichagain allowed a commercial fishery in Area 10. Chief Walkus states that this was against GNN laws, traditional knowledge and itsexpress wishes. On that same date, GNN Band Council sent a follow up letter to the Minister requesting an urgent meeting. On February24, 2021 a response was received from Bryan Rusch, Regional Pelagics Manager at DFO, but this response failed to address GNN’sconcerns and simply repeated what was in the IFMP. At the time, Chief Walkus swore his affidavit there had been no response from theMinister.

For the third year, GNN has decided not to participate in either the commercial or FSC fishery in Area 10. [14] Chief Walkus concludes his affidavit with this paragraph: 43. In their current state, the herring stocks must be left alone for several years at least before they can safely and lawfully beharvested again.

It is our view that allowing the fishery to proceed this year will put the herring stocks at unacceptable risk.Any fishing of herring roe this year will be a violation of our law, and a denial of our Aboriginal Right to harvest herring roe,and manage the fishery according to our own traditional laws and knowledge. Test for injunctive relief [15] The sole issue before me in this motion is whether an interlocutory injunction should be granted to enjoin the opening of the annualcommercial SOK herring fishery in Area 10. Whether an injunction is granted is determined by the test for injunctive relief.

The test iswell established and the parties agree that it is as set out by the Supreme Court of Canada in RJR-MacDonald Inc v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311 [RJR-MacDonald]. [16] That test is: i. whether there is a serious issue; ii. whether irreparable harm will result if the injunction is not granted; and iii. whether the balance of convenience favours granting the relief sought. [17] The test is conjunctive and all three criteria must be satisfied to obtain interlocutory relief. The onus is on the party bringing themotion to establish that the test has been met (RJR MacDonald at pp 314–315).

And, in all cases, the fundamental question is whetherthe granting of an injunction is just and equitable in all of the circumstances of the matter (Google Inc v Equustek Solutions Inc, 2017SCC 34 at para 25). [18] The Supreme Court of Canada reconfirmed the RJR-MacDonald test in R v Canadian Broadcasting Corp., 2018 SCC 5 [CanadianBroadcasting] stating: [12] In Manitoba (Attorney General) v.

Metropolitan Stores Ltd. and then again in RJR—MacDonald, this Court has saidthat applications for an interlocutory injunction must satisfy each of the three elements of a test which finds its origins in thejudgment of the House of Lords in American Cyanamid Co. v. Ethicon Ltd. At the first stage, the application judge is toundertake a preliminary investigation of the merits to decide whether the applicant demonstrates a “serious question to betried”, in the sense that the application is neither frivolous nor vexatious.

The applicant must then, at the second stage,convince the court that it will suffer irreparable harm if an injunction is refused. Finally, the third stage of the test requiresan assessment of the balance of convenience, in order to identify the party which would suffer greater harm from thegranting or refusal of the interlocutory injunction, pending a decision on the merits. [19] An interlocutory injunction is extraordinary and equitable relief (Canadian Broadcasting at para 27).

Accordingly, compellingcircumstances are required to justify the intervention of the courts and the exercise of their discretion to grant the relief sought (AhousahtFirst Nation v Minister of Fisheries and Oceans, 2019 FC 1118 at para 49 [Ahousaht 2019]).

i. Serious Issue [ 20 ] As the injunction sought is prohibitory, not mandatory, the first step of the injunction test is whether there is a serious issue to be tried. This is not a stringent requirement. There is a serious issue to be tried so long as the application is not frivolous or vexatious ( Canadian Broadcasting at para 12). When this is the first stage of the test, a " “prolonged examination of the merits is generally neither necessary nor desirable” " ( RJR-Macdonald at para 50). [ 21 ] Canada agrees that there is a serious issued to be tried on the application for judicial review.

The regulation of fisheries and the Crown’s duty to consult and accommodate are both serious matters. [ 22 ] Accordingly, the first branch of the tripartite test has been met. ii. Irreparable harm GNN’s position [ 23 ] GNN submits that not granting the injunction and opening the Area 10 herring fishery will cause irreparable harm for three reasons:

a) Allowing the herring fishery to proceed will undermine GNN’s traditional legal order and, therefore, the process of reconciliation mandated under s 35 of the Constitution Act, 1982 ;

b) Allowing the herring fishery to proceed will prevent or delay the exercise of GNN’s right to fish for food and ceremonial purposes in accordance with GNN’s legal traditions and customs; and

c) Allowing the herring fishery to proceed poses an unacceptable risk to the ongoing health and viability of the Area 10 herring stocks. Canada’s position [ 24 ] Canada submits that, at best, GNN points to the possibility of harm, which does not meet the test. Further, GNN has misunderstood or ignored the DFO Science and fisheries advice contained in the decision to open the Area 10 fishery. Canada submits that the Minister is responsible for fisheries management, conservation and protection of fish.

DFO took GNN’s conservation concerns seriously and met with GNN to discuss the commercial SOK herring opening and the information upon which its stock assessment was based. However, GNN has taken the position that the only outcome they can accept is that the commercial fishery not be opened to anyone. Analysis [ 25 ] This first step in this analysis is to understand what comprises irreparable harm. As stated by the Supreme Court of Canada in RJR- MacDonald " “‘[i]irreparable’ refers to the nature of the harm suffered rather than to its magnitude.

It is harm which either cannot be quantified in monetary terms or which cannot be cured” " ( RJR–MacDonald at para 59). [ 26 ] In Stoney First Nation v Shotclose 2011 FCA 232 , the Federal Court of Appeal held that the moving party must demonstrate with particularity, not just assert with generality, the actual existence or real probability of harm that cannot be repaired later. It is not enough to merely use broad, expressive terms to describe the harm and to assert that it is irreparable.

To achieve this, the moving party must provide evidence that is concrete or particular enough to allow the Court to be persuaded on the matter (at para 48-49). [ 27 ] The Federal Court of Appeal in United States Steel Corporation v Canada (Attorney General) , 2010 FCA 200 noted that its jurisprudence holds that a moving party must adduce clear and non-speculative evidence that irreparable harm will follow if the motion (for a stay in that case) is denied.

It is not sufficient to demonstrate that irreparable harm is likely to be suffered, nor should the alleged harm be based on mere assertions (at para 7; also see Janssen Inc v Abbvie Corporation , 2014 FCA 112 at para 24 ). [ 28 ] Put otherwise, " “there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted. Assumptions, speculations, hypotheticals, and arguable assertions, unsupported by evidence, carry no weight” " ( Glooscap Heritage Society v Canada (National Revenue) , 2012 FCA 255 at para 31 ). A.

Risk to herring stocks [ 29 ] I agree with Canada that, at its core, this injunction motion is concerned with the differing opinions of GNN and DFO as to the health of the herring stocks in Area 10. While GNN and DFO hold in common the ultimate goal of ensuring that the stock is conserved, they do not agree on the

interpretation of the data measuring stock health and the measures required to achieve conservation. [ 30 ] Accordingly, I will first address GNN’s submission that opening the commercial SOK herring fishery will result in irreparable harm to the Area 10 stocks. [ 31 ] As a preliminary observation, I note that when GNN’s application for judicial review is heard on the merits the Court will fully review the evidence in the record before it when determining whether the Minister reasonably concluded, amongst other things, that the herring stock levels in Area 10 warranted the opening of the 2020-2021 commercial SOK herring fishery at the levels set out in the 2020- 2021 IFMP.

What I have to determine in this interlocutory injunction motion is whether the evidence before me can support a finding of irreparable harm based on GNN’s assertion that DFO’s stock assessment is unreliable and that the long term decline in herring stocks, together with its dive survey data, suggests there is a serious risk of substantial harm to the stocks if commercial fishing is allowed to proceed.

[ 32 ] GNN submits that opening the fishery will put the herring stocks at unacceptable risk. Further, that the loss of an irreplaceable resource is inherently irreparable harm. And, where Aboriginal rights are linked to such resources, GNN will similarly suffer irreparable harm from the loss of the resource. [ 33 ] GNN heavily relies on the decision of this Court in Haida Nation v Canada (Fisheries and Oceans) 2015 FC 290 [ Haida FC ].

In particular, GNN cites Justice Manson’s finding that " “[t]he room for error in highly suspect forecasts, in an admittedly small fishery, must be considered as significant risk of harm not compensable in damages”. " GNN submits that the case for irreparable harm is even more compelling where the " “ability to fish is central to [an applicant’s] culture, traditions and way of life” " ( Haida FC at paras 48-49 ). GNN submits that the long term declining herring stocks together with the dive survey data suggests there is a serious risk of substantial harm to the stocks if commercial fishing is allowed to proceed.

Further, the Area 10 fishery is a small fishery and DFO does not have a formal stock assessment program in place, let alone the ability to produce meaningful forecasts. Thus, the risk to the herring stocks is more than merely speculative. [ 34 ] Alternatively, GNN submits that a different threshold of risk applies at the irreparable harm stage where the harm alleged is the threat of serious or irreversible damage to the environment. This threshold is based on the precautionary principle.

Under that risk threshold, the Minister should not be permitted to rely on the lack of scientific certainty about the state of the herring stocks to resist injunctive relief. GNN’s evidence [ 35 ] In GNN’s view, the Area 10 herring stocks have been in decline since 1999 and there is inadequate data being collected to properly assess stock health. [ 36 ] In support of its submissions, GNN filed the affidavit of Mark Kenny, GNN Land and Resources Manager, sworn on March 6, 2021 [Kenny Affidavit]. Mr.

Kenny points out that DFO does not maintain a formal stock assessment program to monitor the health of Area 10 stocks. He states that this limits the range of scientific data available to support fisheries management decisions. And " “[a]s a result, DFO relies heavily on reports from commercial operators, who do not have scientific training, and do not engage in methodica l studies of the herring stocks " " ” " . [ 37 ] Mr. Kenny states that DFO provides limited funding to GNN to perform annual dive surveys.

The dive surveys are conducted by two biologists in accordance with procedures set out in the DFO Herring Spawn Survey Manual and typically take two days to complete. Mr. Kenny states that DFO relies on the dive survey data, in conjunction with observations from commercial fishers, to estimate total biomass for the herring run each year. DFO also provides this information to GNN. [ 38 ] The Kenny Affidavit states that Area 10 was closed to commercial fishing from 2010 to 2015 " “after collapsing” " in the mid 2000’s. DFO reopened the area in 2016.

Beginning in 2018, the herring stocks again began showing signs of decline. The GNN 2018 dive survey showed only sparse and sporadic signs of herring roe and the estimated biomass of the herring run that year was less than 500 metric tonnes. GNN advised DFO by email of its serious concerns about the state of the herring stocks and the risk posed by allowing further commercial openings in late 2018 (Exhibit B, Kenny Affidavit; that email string indicates that DFO responded by email of December 3, 2018). However, that the commercial fishery was opened in 2019. [ 39 ] Mr.

Kenny states that the 2019 dive survey also yielded disappointing results, the total estimated biomass for that year being 570 metric tonnes. Between December 4, 2019 and March 10, 2019, he attended at least 5 meetings with DFO in which he or other GNN representatives expressed serious concerns about the Area 10 herring fishery. They requested that DFO refrain from further commercial openings. During this time, Mr. Kenny also corresponded with Steven Groves, DFO BC North Coast

Section Head. On December 12, 2019, Mr. Kenny informed Mr. Groves by email that GNN adamantly opposed any herring roe opening in GNN territory (Exhibit C, Kenny Affidavit). [ 40 ] On March 6, 2020 Mr. Kenny sent an email to Mr. Groves reiterating GNN’s concerns about the herring fishery opening in Area 10 (Exhibit D, Kenny Affidavit).

In that email he stated that the decision made to have a commercial fishery in Area 10 failed to consider previously shared GNN historical and cultural knowledge and that GNN had also shared data from the 2019 dive survey that clearly shows that the stock has not improved in 2019 and remains at critical levels. [ 41 ] The 2020 GNN dive survey was delayed due to the Covid-19 pandemic. From March 20 to April 11, 2020 Mr. Kenny corresponded with Mr. Groves as to spawn sightings, the first of which was reported on April 11, 2020 by the sole commercial fisher in the area.

The GNN dive survey began on April 15 and was completed on April 17. Mr. Kenny reports that GNN biologists found no signs of herring or herring spawn other than a single piece of floating kelp with herring roe on it. Mr. Kenny states that the 2020 dive survey further confirmed the need for caution. [ 42 ] Mr. Kenny states that late in 2020 he attended meetings with DFO concerning the 2021 herring SOK fishery at which he raised GNN’s previous concerns and requested that DFO refrain from further commercial openings in Area 10.

However, on February 19, 2021 DFO approved the 2020-2021 IFMP which allowed for a commercial SOK fishery in Area 10 and that the Plan did not address any of GNN’s concerns. As in previous years, the Plan referred to a precautionary approach but still permitted a commercial fishery. GNN, for the third year in a row, decided not to participate in the Area 10 herring fishery in light of the continued decline in herring stocks and the risk to the ongoing viability of the herring roe harvest. Mr.

Kenny states that this means that GNN members will voluntarily refrain from fishing, even for subsistence purposes, even as the commercial fishery is allowed to proceed. The GNN letter to Mr. Groves dated February 12, 2019 (Walkus Affidavit, Exhibit

E) largely restates the concerns set out in the 2018 email from David Schmidt, Mr. Kenny’s predecessor, to Mr. Groves (Kenny Affidavit, Exhibit

B) that, in GNN’s view: - The status of the Area 10 stocks is a serious concern and that the limited available data makes it clear that there is a significant decline in biomass since 1999. If 2000 tonnes is taken as a rough long term average, the current biomass of 500 tones represents only 25% of this. Accordingly, the precautionary approach must be applied in its management. Further, traditional knowledge indicates that the stocks are well below historical long term averages;

- GNN is concerned with the lack of information for the Area 10 stocks and does not know if it is a major or minor stock. Assuming it is a minor stock, one poorly planned season could wipe it out. An overall plan for moving forward in a way that does not extinguish GNN’s rights is therefore needed, including further consultation with GNN Elders and scientific investigation to determine the stocks status; - The suggestion of allowing one commercial open pond license to fish does not sufficiently mitigate the potential risk.

Open pond is demonstrably better for the fish as it does not kill as many fish and can also reduce overall catch in lower biomass years. However, while GNN agreed that the chances of harm to the fishery may be lessened by an open pond approach, this is by no means a guarantee; - The discrepancy between sightings and dive survey results was acknowledged. However, even when fishermen see much milt in the water, spawn abundance is not necessarily directly correlated to that observation. And, in accordance with the dive survey protocols, all sightings and results were reported.

What was not reflected was that a significant amount of shoreline was also looked at for spawn and only the areas where it was sighted was subject to the dive survey, even then there were some empty transects; - GNN Council is not happy with the relationship between GNN and commercial herring and other fisheries. The latter have harvested in the area for decades with very little benefit to GNN. Declining stocks potentially affects other fisheries which ultimately affects GNN’s rights and ability to harvest.

Declining stocks, commercial pressure and the seeming unwillingness of DFO to follow their mandate of precautionary management flies in the face of reconciliation and the sustainable management of the fisheries. The decline of stock also affects GNN’s rights.

GNN seeks agreements with all commercial users in its territory and is of the view that DFO seems unwilling to follow the mandate of precautionary management; - The push to open the SOK herring fishery appears to be at the behest of once license holder and it appears that DFO is prioritizing the commercial fishery over GNN’s Aboriginal rights and conservation. This is unconstitutional and inhibits reconciliation; [ 43 ] Similar concerns are stated in the Walkus Affidavit and its Exhibits.

Canada’s evidence as to the adequacy of the herring stock data [ 44 ] Canada submitted four affidavits in response to GNN’s motion. Three of these are from DFO scientists/employees: the affidavit of Steven Groves,

Section Head, Regional Spawn on Kelp Coordinator, affirmed on March 12, 2021 [Groves Affidavit]; the affidavit of Neil Davis, Director of Resource Management Program Delivery, affirmed on March 12, 2021 [Davis Affidavit]; and the affidavit of Dr. Christopher Rooper,

Section Head, Quantitative Assessment Methods, affirmed on March 12, 2021 [Rooper Affidavit]. A fourth affidavit is that of Claudia Au, paralegal at the Department of Justice, affirmed on March 12, 2021 [Au Affidavit]. The DFO affidavits are detailed, contain a great deal of information and attach multiple exhibits. [ 45 ] The Rooper Affidavit states that DFO Science annually conducts formal analyses of stock trend information for the five major BC Pacific Herring stock areas. For the two minor stock areas, DFO annually compiles catch data, biological data, and spawn survey data to monitor trends in abundance.

The Area 10 pacific herring are not currently considered as part of a major or minor stock. The Groves Affidavit adds that Area 10 is outside the major and minor stock assessment areas because it is spatially remote, has a distinct spatial grouping of herring and supports only SOK fisheries (unlike other areas, herring themselves are not fished, only roe is harvested in Area 10) on a relatively minor scale. The Area 10 fishery is therefore managed separately.

The Groves Affidavit states that DFO considers the current stock monitoring activities in Area 10 to be appropriate given the scale and method of fishery in that area, and that the monitoring is sufficient to inform and guide DFO’s precautionary approach. [ 46 ] The Groves Affidavit states that DFO considers the GNN spawn dive survey program as the standard method to monitor herring abundance in Area 10. The GNN dive surveys began in 2009 and are conducted by BCL Biotechnologies Ltd. (BCL). The cost is covered by DFO through the Aboriginal Fisheries Strategy agreements. Mr.

Groves states that the GNN dive survey program is of the same quality and uses the same methods as those conducted in the major and minor stock assessment regions. [ 47 ] As to when and where dive surveys are conducted, the Groves Affidavit states that DFO relies on reports of the presence of adult herring schools, milt events, and egg depositions received from FSC fishermen, GNN monitoring patrol, spawn survey divers, aerial flights, chartered vessels, commercial fishermen, and DFO on-grounds surveys.

From those observations, the spawn reconnaissance divers are directed to known or likely spawn locations to conduct dive surveys to record the egg deposition. Reports from commercial operators on herring locations, spawn locations, and spawn timing are used to inform and direct the GNN divers, not to provide scientific data as indicated in the Kenny Affidavit. Spawn survey data is obtained solely from spawn survey methods. Dr.

Rooper also states the biomass estimate from DFO Science (reflected in the Area 10 Herring Spawn Survey Estimates of Egg Density and Fish Biomass & Harvest 1999-2018), does not include observations from commercial fishers. [ 48 ] Mr. Groves states that each year, the dive survey raw transect data of egg deposition on marine plants is sent to DFO Stock Assessment. The data from these surveys is used to calculate egg densities per spawn. Ultimately, the estimated weight of mature spawners – the fish biomass – required to produce the egg deposition is calculated. At paragraph 10 of his affidavit, Mr.

Groves states that DFO generally keeps the harvest rate near 10% of biomass of the previous year, based on the precautionary rate used in the minor stock areas. Subsequently, Affidavit #2 of Steven Groves was filed (with GNN’s consent) on March 15, 2021. In Affidavit #2 Mr. Groves speaks to his statement that the harvest rate is generally around 10% of the previous year’s biomass.

He refers to the 2020-2021 IFMP which states that due to strong concerns expressed by GNN, a maximum of one closed pond operation (licensed to GNN) and one open pond (35 tons) operation was proposed for that season, subject to further consultation. Mr. Groves states that the 35 ton figure is the expected use, it is a mortality estimate resulting from the herring egg removal in future production years (at least three years ahead as herring start to reproduce at about 3 years of age and can live up to 10 years, returning over the years to spawn again).

The fish biomass estimate in 2020 was 903 metric tonnes, or the equivalent of 995.39 tonnes including the commercial SOK harvest in 2020. Accordingly, the 35 ton figure represents a reduced 3.5% harvest rate – not 10% in 2021. The point being that after consultation with GNN the harvest

rate was reduced from the general 10% level to 3.5%. [ 49 ] Mr. Groves states that DFO Science does not provide any Area 10 specific advice on harvest rates, but they do oversee and review the available spawn data each year. [ 50 ] The Rooper Affidavit provides further detail on this point. Dr. Rooper states that in 2008 the Central Coast major stock area was closed to commercial harvest due to a declining trend in spawning biomass and the projected spawning biomass in 2008 falling below the commercial fishery biomass threshold ( " “cutof f” " ) established for this stock.

Given the close proximity between Area 10 and the Central Coast herring stock, the low spawn index, observations for Area 10 in 2008 and 2009, and other factors, DFO issued a precautionary closure for commercial fisheries for Area 10 in 2010. [ 51 ] The Central Coast major stock was reopened to commercial fisheries in 2014 following consecutive years of increasing trend in spawning biomass – to levels above the " “cutoff” " (since 2018 now known as the established Limit Reference Point). The limit reference point represents the biomass threshold where " “serious harm” " to the stock is likely to occur.

For the major Pacific Herring stocks, the limit reference point was defined as 30% of the unfished biomass. For stocks falling below the limit reference point, it is recommended that the fishery be closed in order to protect the stock.

For stocks with a high probability of being above the limit reference point, it is recommended that the fishery be opened with a fishing mortality rate that is dependent on how much above the limit reference point the current status of the stock is predicted to be. [ 52 ] Thus, for those stocks falling below a limit reference point, no fishing occurs in order to protect the stock from serious harm.

For stocks above the limit reference point, some fishing, proportional to the size of the stock relative to the limit reference point, may be allowed. [ 53 ] The Rooper Affidavit states that Area 10 was re-opened in 2016 for a single open pond license. However, there is no scientifically established limit reference point for Area 10 due to the lack of data to support the development of such a reference point.

Each year DFO Science reviews the new Area 10 spawn information and compares these data to historical trends in Area 10 and discusses this information with Fisheries Management so as to inform the latter’s annual decision-making process as to harvesting. [ 54 ] In addition to DFO Science’s input, DFO’s evidence indicates that DFO Fisheries Management applies the precautionary approach when considering whether or how to open a fishery. The Groves Affidavit also refers the 2020-2021 IFMP,

section 2.4, Precautionary Approach. This includes the statement that: In general, the precautionary approach in fisheries management requires caution when scientific knowledge is uncertain. The absence of adequate scientific information should not result in postponed action or failure to take action to avoid the risk of serious harm to fish stocks or their ecosystem. This approach is widely accepted internationally as an essential part of sustainable fisheries management.

Applying the precautionary approach to fisheries management decisions entails establishing harvest strategies that: • identify three stock status zones - Healthy, Cautious, and Critical - delineated by an upper stock reference point and a limit reference point; • set the removal rate at which fish may be harvested within each stock status zone; and • adjust the removal rate according to fish stock status (i.e., spawning stock biomass or another index/metric relevant to population productivity), based on pre-agreed decision rules.

The framework requires that a harvest strategy be incorporated into respective fisheries management plans to keep the removal rate moderate when the stock status is in the Healthy Zone, to promote rebuilding when stock status is low, and to ensure a low risk of serious or irreversible harm to the stock. ….. [ 55 ] Appendix 8: Commercial Fishing Plan for Spawn on Kelp specifically addresses Area 10 and the absence of a formal stock assessment: 3.6.5 Area 10 This area is outside both major and minor stock assessment areas, and a formal DFO stock assessment is not conducted.

However, spawn reconnaissance, dive and/or surface surveys have been conducted in Area 10 by the Gwa'sala-Nakaxda'xw First Nation (GNN) since 2009 through AFS funding and occasionally by Fisheries and Oceans. This area was closed to commercial harvest from 2010-2015 while stocks in the Central Coast were low. Since 2018, there has been a slight increase in spawn observed. There are two open and one closed pond operations in this area. Due to strong concerns received from the GNN, a maximum of one closed (held by the GNN) and one open (35 tons) pond operation is proposed, subject to further consultations.

If a commercial fishery proceeds, areas will be closed to commercial fishing to allow for successful FSC fisheries. An expression of interest is required by the license holders to request access to the area. If requested, limited access can be discussed. [ 56 ] The Groves Affidavit states that in applying the precautionary approach when approving the opening of a commercial SOK fishery in Area 10 for the 2021 season DFO considered: i. Scale and method of fishery – The Area 10 SOK fishery supports only SOK fisheries and on a relatively small scale.

There is a GNN FSC SOK fishery and a small commercial SOK fishery for three licences holders, GNN and two others. There are two methods of SOK fishing associated with commercial licences, open and closed pond. Closed pond involves using a large vessel and a seine net to capture adult mature herring, concentrate the catch and hold them in a floating net

enclosure. Harvested marine plants, usually kelp, are hung in the water column within the enclosure. Once the herring to lay their eggs on the kelp it is collected and the herring are released. Closed pond is associated with increased adult herring mortality (up to approximately three times the open pond method) arising from the seining, towing etc. of the adult herring. In open pond fishing the adult herring are not captured or held in an enclosure.

Instead, open pond fishers anchor harvested kelp in shallow water at locations based on herring presence and historical spawning locations and use float lines in an effort to guide the herring to the anchored kelp. After spawning, the SOK is collected. DFO considers open ponding to present a low risk to stock health because commercial success is typically proportional to the overall returning abundance of herring. Open ponding does not permit fishers to artificially concentrate herring to promote the density required for a dense spawn and thus a viable commercial fishery at low levels of abundance.

There is also minimal adult herring mortality as the herring a free swimming. In Area 10, only GNN are licensed to use both open and closed pond fishing methods in Area 10. The other two commercial licences in Area 10 permit only open pond SOK fishing; ii. Dive survey data in Area 10 is considered sufficient for the scale and method of fishery (discussed above); iii. The spawn data does not raise concerns that the SOK fishery poses serious or irreversible harm to Area 10 herring stocks. [ 57 ] Dr.

Rooper states in his affidavit that while the information available for Area 10 is limited, because the area is small and supports a small herring population, the index can be considered a " “minimum biomass estimate” " . It is considered a minimum biomass estimate because some spawning events in a year may not be surveyed fully by the GNN or DFO dive surveys due to its remoteness. Thus, the biomass may, in some years, be larger than is observed.

Analysis of GNN and DFO evidence as to the adequacy of herring stock data [ 58 ] DFO’s evidence confirms GNN’s statement that there is no formal stock assessment in place for Area 10. However, DFO’s evidence also indicates that no formal stock assessment is done for the minor stocks. For minor stocks, dive surveys are conducted and catch data and biological data are used to monitor abundance trends. The evidence is that the dive survey for major, minor and Area 10 stocks are all conducted under the same protocol.

I also note that as adult herring are not fished in Area 10, catch data would not be relevant to an abundance assessment. Neither party has indicated what biological data is collected in the minor stock areas and how or if it is used to assess stock abundance. [ 59 ] In my view, DFO’s evidence explains why it is of the view that dive survey monitoring is an adequate manner of assessing Area 10 stocks, given its small area, the relatively small stock size and the limited fishing pressures it faces.

DFO also takes into consideration other factors such as the status of herring stocks in the broader Central Coast area. While GNN would wish for more data to be collected for the Area 10 stocks, they have not, in my view, established that the information obtained from the dive survey monitoring is so flawed or so limited that it gives rise to unreliable results and therefore the potential of irreparable harm. Herring stock abundance [ 60 ] It is significant to note that GNN appears to rely on an assumption that the long-term historic herring biomass in Area 10 is approximately 2000 metric tonnes.

Based largely on this assumption, GNN asserts that the Area 10 stocks are in decline and at critically low levels. [ 61 ] The record includes, at various places including Exhibit A of the Kenny Affidavit, a chart entitled " “Spawn Survey Estimates of Egg Density and Fish Biomass & Harvest 1999-2018”.

" This chart indicates that between 1999 and 2009 the biomass estimate (spawn index) varied considerably from year to year (1262 tonnes in 1999, 780 tonnes in 2000, 896 tonnes in 2001, 1158 tonnes in 2002, 768 tonnes in 2003, 930 tonnes in 2004, 1158 tonnes in 2005) until declining, starting in 2006 (234 tonnes in 2006, no figure for 2007, 304 tonnes in 2008, 389 tonnes in 2009). The SOK fishery in Areas 10 was then closed to commercial herring fisheries from 2010 to 2015. [ 62 ] Dr.

Rooper’s Affidavit attaches as Exhibit B a revised/updated Area 10 " “Herring Spawn Survey Estimates of Egg Density and Fish Biomass & Harvest 1999-2018 (index of biomass based on spawn surveys)” " . Dr. Rooper states that " “the spawn survey index values for Area 10 have been relatively stable from 2016 to 2020. The spawn survey index values were 587.65 metric tonnes in 2016, 2,206.41 metric tonnes in 2017, 476.87 metric tonnes in 2018, 569.70 metric tonnes in 2019, and 888.50 metric tonnes in 2020.

With the exception of 2020, where the survey was carried out by a DFO contracted dive team, these surveys were carried out by the GNN dive teams” " . [ 63 ] Dr. Rooper speaks to Chief Walkus’s and Mr. Kenny’s affidavit evidence where they describe the health of the herring stocks in 2019 as " “troubling” " based upon the GNN 2018 dive survey results. Dr. Rooper notes that the results from the 2019 survey of Area 10 yield a survey index value of 569.70 metric tonnes, an increase over the 2018 observation of 476.87 tonnes.

He states that the 2019 survey index value is within the range of observations from 2016 to 2020 (476.87 to 2,206.41 metric tonnes), and was an increase from the survey index in 2018.

He states that this was not considered " “troubling” " by DFO because it was not an extreme value, but is well within the historical index values for Area 10 as seen from the Area 10 Herring Spawn Survey Estimates of Egg Density and Fish Biomass & Harvest 1999-2018. [ 64 ] As to the statement " “[i]f you take 2000 tonnes as a rough long term average” " found in the GNN letter of February 12, 2019 (which stems from the 2018 email from David Schmidt to DFO, Kenny Affidavit, Exhibit B), Dr. Rooper states that the source of this average is unclear since only one year (2017) showed a biomass this high.

The long term average of the available survey data (1999-2020) is 786.65 metric tonnes. [ 65 ] As to paragraphs 30-32 of Chief Walkus’s affidavit, which states that the 2019 dive survey results were " “disappointing” " , Dr. Rooper states his opinion: [t] " he biomasses estimated from 2018 through 2020 are well within the range of estimates in the time series from 1999 to 2020. The 2017 estimate is currently the highest estimate on record for Area 10. The biomass estimated from the 2019 dive

survey (569.70 metric tonnes) was an increase from the 476.87 metric tonnes observed in 2018. The estimated biomass in 2020 was again an increase to 888.50 metric tonnes. During these years of increase in survey biomass there were fishing activities conducted by SOK operations, this would indicate that the single SOK operator would be unlikely to cause irreparable harm " . [ 66 ] The Groves Affidavit speaks to the 2020 dive survey conducted by DFO. Mr. Groves states that between March 10 - 24, 2020 he communicated regularly with Mr.

Kenny regarding spawn sightings to determine the time and location of the GNN dive survey. On March 26, 2020, Mr. Groves advised Mr. Kenny of the availability of a DFO dive charter vessel and it was ultimately agreed that a DFO survey would proceed. Mr. Groves states that this was the first time DFO had conducted a dive survey in Area 10 because of a resource surplus associated with Covid-19, not concerns about the GNN spawn data. The DFO survey found an increase of herring stocks from 2019 and a building stock abundance. Mr. Groves advised Mr.

Kenny of the spawn time and location and provided him with the DFO data. [ 67 ] Mr. Groves states that from March 28 to April 11, 2020 he communicated with Mr. Kenny regarding spawn sightings. GNN conducted its dive survey from April 15 to 19, 2020 and indicated that only one observation of thin herring eggs was encountered in McBride Bay and no evidence of spawn along or between any documented transect locations. Mr. Groves states that DFO relies on spawn observation reports to direct the divers to survey locations.

Dives conducted in unreported areas are likely unproductive and are only completed as a last report, when no spawn observation reports are available. Based on Mr. Groves review of the GNN 2020 Dive Survey report, he states that GNN did not conduct a survey of the areas identified by the commercial fisher as a spawn location. [ 68 ] Thus, while the DFO and GNN 2020 dive surveys produced different results, numerous factors could explain this, including the timing of the survey in relation to the spawn and the survey areas.

The DFO survey was conducted on March 26, 2020, following the major spawning event while the GNN survey was completed on April 17-19, 2020 during a minor spawn event. Mr. Groves states that the results of the GNN survey are consistent with past experiences during a minor spawn event where small or trace amounts of eggs may be observed. Further, herring eggs hatch between 14-21 days after a spawn. The GNN dive survey was conducted 28 days after the spawn was first reported by the commercial fisher.

Therefore, the herring eggs likely already hatched resulting in in no eggs being observed during the GNN dive. [ 69 ] The Rooper Affidavit also addresses the timing of the GNN 2020 dive surveys. Dr. Rooper deposes that DFO records show that the 2020 Pacific Herring spawning event started on March 24 and ended on March 25, 2020. It covered approximately 7.7 km of shoreline. There were 22 dive transects completed on March 27, 2020, being 2-3 days after the spawning. The raw transect data were transferred to DFO Science and used to calculate the spawning biomass for 2020 at 888.50 metric tonnes.

The 2020 GNN dive survey appeared to have occurred on April 17-19, 2020, being 23-26 days post-spawning event. Incubation times for Pacific Herring are between 10-21 days in British Columbia, with an average incubation period of 14 days. Dr. Roper states that it is therefore it is highly unlikely that eggs from the March 24-25, 2020 spawning event were still present when the GNN dive survey occurred on April 17-19, 2020, because the viable eggs would have hatched prior to the GNN dive survey.

He states that the results of the two 2020 dive surveys demonstrate the time sensitivity of the herring spawn and the importance of conducting dive surveys shortly after the spawn is concluded. [ 70 ] Finally, in response to Chief Walkus’s opinion that the Area 10 herring stock must be left alone for at least several years before they can safely be harvested again, Dr. Rooper states that the survey index is one piece of information considered by Fisheries Management when making risk-based decisions.

In this case, the dive survey data shows that the spawning biomass of herring in Area 10 has been stable or increasing since 2016, with one extremely high biomass estimate in 2017. As the SOK fishery has been open during this time, the observed increases do not support the assertion that the opening of the fishery to a single SOK operator in Area 10 has resulted in irreparable harm to the stock.

Conclusion [ 71 ] With respect to the adequacy of the Area 10 herring stock data, while the Area 10 stock assessment is not of the same breadth as the assessments of major and minor stocks, DFO’s evidence explains that Area 10 is a much smaller stock in a small area that is subject to less intensive commercial fisheries and, therefore, can withstand a lower level of monitoring. There is no fishery for adult herring in Area 10. There are also only three commercial licences for the SOK fishery.

One of these is held by GNN and only GNN is licensed to conduct the closed pond method of fishing which has a significantly higher herring mortality rate. The evidence is that in fact only one other commercial fisher is actively operating in the area.

DFO also considers the status of the broader Central Coast area stocks and other factors in its assessment of the Area 10 stocks. [ 72 ] Although the Kenny Affidavit states that because DFO does not maintain a formal stock assessment program in Area 10 this limits the range of scientific data available to support fisheries management decisions and " “As a result, DFO relies heavily on reports from commercial operators, who do not have scientific training, and do not engage in methodical studies of the herring stocks” " . DFO’s evidence suggests that this was a misunderstanding.

To the extent that GNN are suggesting that the accuracy of DFO’s biomass data is negatively impacted by the use of information received from commercial operators, I prefer DFO’s evidence. The accuracy of DFO’s stock assessment is not at issue in this regard. Similarly, the fact that the 2020 DFO and GNN dive surveys netted differing results does not suggest that either set of data was inaccurate. The DFO and GNN dives were conducted at different times and in different locations.

The differing results highlight the significance of accurate spawn spotting and dive survey timing. [ 73 ] While GNN wishes for greater data gathering for Area 10, based on the evidence before me, I am not persuaded that the current level of monitoring, by dive surveys, is so inadequate or flawed as to render the DFO stock assessment invalid or inherently unreliable.

I agree with Canada that GNN has therefore not established that in this case DFO has relied on highly suspect forecast in a small fishery as was found in Haida FC (at paras 48-49 ), thereby potentially giving rise to irreparable harm. [ 74 ] As to GNN’ s concern that the Area 10 stocks are in critical decline, it is also significant that GNN’s

interpretation of the status of the Area 10 stocks as declining and in critical peril appears to be primarily based on its assumption of 2000 tonnes as a rough long term annual biomass average and that the biomass average since the reopening of Area 10 have fallen below this figure. However, this asserted 2000 tonne historical average is not supported by the dive survey data gathered by GNN, which was utilized to compile the

Area 10 Herring Spawn Survey Estimates of Egg Density and Fish Biomass & Harvest 1999-2018. DFO’s evidence indicates that thelong term average of the survey data from 1999 to 2020 is 786.65 metric tonnes. Indeed, there was only one year during that period thatreached or exceeded 2000 tones which was 2,206.41 metric tonnes in 2017.

GNN provides no evidence as to the basis of its assumption –which is the basis of its position that the Area 10 herring stock are in critical decline. [75] When appearing before me counsel for GNN submitted that the fluctuation seen in the year-to-year biomass estimates establishesthat the Area 10 stock is unstable, however, counsel points to no evidence to support this

interpretation of the data. Similarly, it wassubmitted that the Kenny Affidavit indicates that Mr. Kenny was advised by Mr. Groves that in 2020 the other commercial fisher hadgiven up on the Area 10 SOK harvest and that he had not achieved his quota. Counsel suggests that this too demonstrates uncertainty inthe stock. However, in my view, this is speculation. [76] And, while GNN asserts that traditional knowledge indicates that the Area 10 stocks are well below historical long-term averages,there is simply no evidence before me that speaks to what that traditional knowledge average is or how it was arrived at.

The KennyAffidavit states that, starting this year, GNN will put hemlock branches in the water to gauge the strength of the herring fishery, inaccordance with GNN’s traditional practices and knowledge.

However, there is no evidence before me that GNN has done so during thesurvey period, or otherwise, thereby providing the basis for the asserted 2000 tonne historical average, a comparator or companion to thedive survey data, or an explanation as to the basis for GNN’s belief the Area 10 herring stocks are in critical decline. [77] In sum, GNN submits that the long term declining herring stocks together with its dive survey data suggests there is a serious risk ofsubstantial harm to the stocks if commercial fishing is allowed to proceed.

However, the onus was on GNN to provide clear andcompelling, non-speculative evidence that irreparable harm would occur if the Area 10 fishery proceeds. In my view, they have failed todo so. [78] I also do not agree with GNN’s alternate submission that a different threshold of risk, based on the precautionary principle, appliesat the irreparable harm stage where the harm alleged is the threat of serious or irreversible damage to the environment.

In my view, thetest for injunctive relief, including the requirement that an applicant provide clear and compelling, non-speculative evidence thatirreparable harm would occur, is well established by the jurisprudence of the Supreme Court of Canada and has been consistentlyfollowed by many other courts. It has been applied frequently and in a multitude of subject matters, including those that assert irreparableharm to the environment or to living resources.

While it is open to parties to demonstrate in a motion for injunctive relief that theprecautionary principle applies in a particular fact circumstances (as it does and as is acknowledged by DFO in this case) and that thefailure to implement it will result in irreparable harm, the evidentiary threshold remains the same. B. Reconciliation [79] GNN submits that allowing the herring fishery to proceed will undermine GNN’s traditional legal order and, therefore, the processof reconciliation mandated under s 35 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), c 11 [ConstitutionAct, 1982] resulting in irreparable harm. [80] In that regard, GNN states that unilateral action on the part of the Crown that compromises the process of reconciliation has beenfound to constitute irreparable harm. GNN cites Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 10 [LittleSalmon]; Manitoba Metis Federations Inc. v Canada (Attorney General), 2013 SCC 14 at para 66 [Manitoba Metis] and Haida FC atpara 54 with respect to intent and purpose of reconciliation.

And R v Van der Peet, (SCC), [1996] 2 SCR 507 at para263 [Vander Peet] to establish that Indigenous legal orders and customs for a part of Canada’s legal traditions. GNN states that thereconciliation of Indigenous legal orders and their common law and civil law counterparts is central to the project of reconciliation whichcannot occur without mutual recognition and respect between the various legal orders that together constitute the law of the land.

GNNsubmits that if the Area 10 SOK commercial fishery is permitted to proceed in these circumstances – without adequate consultation andaccommodation – it will do so in direct contravention of GNN’s traditional laws and customs, which GNN considers to be binding onGNN people and all those who use their traditional territories.

This will destroy the trust upon which the process of reconciliationdepends and set back the relationship between the Crown and GNN for many years. [81] Canada submits that DFO is aware of the GNN Band Council resolutions and takes these, like similar resolutions of otherIndigenous groups, into consideration in bilateral consultations and discussions about GNN’s asserted rights and title. Further, Canadarecognizes that the Supreme Court of Canada has affirmed that Indigenous legal orders and customs form a part of Canada’s legaltraditions.

However, in the event that there is a conflict of laws between an Indigenous legal tradition that is protected by s 35 of theConstitution Act, 1982 and Canada’s exclusive jurisdiction over "“Sea Coast and Inland Fisheries”" pursuant to s 91(2) of theConstitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 then the R v Sparrow, (SCC),[1990] 1 SCR 1075 [Sparrow] framework would apply.

This injunction motion is not the venue to resolve any such conflicts. [82] Canada also submits that this case can be distinguished from Haida FC where this Court found that Canada’s failure to consultmeaningfully with the Haida Nation, combined with the fact that the Minister’s decision to open the herring roe fishery was highlyquestionable, constituted irreparable harm. Here, Canada is aware of the GNN Band Council resolutions and considered GNN’s concernsabout herring stocks and conducted meaningful consultations.

The Herring IFMP Briefing Note specifically addresses the concernsexpressed by GNN during consultations, offered a series of mitigations, and applied a precautionary approach in the limited fishery thatwas approved. Further, the DFO scientific advice explained that the biomass in Area 10 has been gradually increasing from 2018 to 2020(with 2017 as an abnormally high year of return) and this increase has occurred while there has been a commercial SOK herring fisheryeach year.

Canada submits that the record demonstrates that DFO has respected GNN’s assertion of their customary laws and customs,has consulted in good faith knowing that GNN are opposed to any opening, and has taken their concerns into account in the limitedfishery opening that balances the multiple obligations of the Minister has to consider when determining fisheries openings. Analysis [83] In support of its submission that opening the fishery will result in irreparable harm to reconciliation, GNN refers to the Supreme

Court’s decision in Little Salmon. There a modern land claim treaty had been concluded. Little Salmon/Carmacks alleged that inconsidering an application for an agricultural land grant, the Yukon government proceeded without proper consultation and withoutregard to relevant First Nation’s concerns. The Supreme Court did not agree. It held that the duty to consult was not excluded by themodern treaty and that Yukon was required to consult with Little Salmon to determine the nature and extend of any adverse effects onthe traditional economic and cultural activities at case concerned.

However, based on the facts of that case, including the consultationprovisions contained in the treaty, the Yukon government had discharged their duty to consult.

Paragraph 10, referred to by GNN, statesthat "“[t]he reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grandpurpose of s. 35 of the Constitution Act, 1982”" and that modern treaties "“attempt to further the objective of reconciliation not only byaddressing grievances over the land claims but by creating the legal basis to foster a positive long-term relationship between Aboriginaland non-Aboriginal communities”". [84] GNN also references paragraph 66 of Manitoba Metis.

There the Supreme Court, within its discussion of the principle of the honourof the Crown, stated that "“[t]he ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societieswith the assertion of Crown sovereignty”". [85] Little Salmon and Manitoba Metis clearly confirm the purpose and the importance of reconciliation. [86] GNN also relies heavily on Haida FC. There the First Nation sought an interlocutory injunction against the Minister to prevent there-opening of a commercial herring fishery.

When considering irreparable harm, Justice Manson made significant findings of fact whichunderlay his conclusion that irreparable harm would occur if that herring fishery were open in 2015. These included that it was withoutquestion that the Haida Gwaii herring roe fishery had declined from 2013 to 2014 and that it was predicted to decline further in 2015.Further, the modelling method used by the Minister to establish a cut off point for the herring roe fishery forecasted a range betweenapproximately 8,000 and 35,000 tonnes indicating a high degree of uncertainty in the forecast.

Finally, another estimating procedureshowed that there was a 73% chance that a harvest of 1800 tonnes, the option chosen by the Minister, would result in the herring biomassfalling below the historic 10,700 tonne cut off.

All of which demonstrated a significantly uncertain forecast on the estimated herring roestock in the Haida Gwaii area for 2015 (Haida FC at paras 44-47). [87] Justice Manson found that the stock estimating uncertainty combined with other factors gave rise to a heightened duty for DFO andthe Minister to accommodate the Haida Nation in negotiating and determining the roe herring fishery in Haida Gwaii.

Specifically, in thatcase there had been: an acknowledgement that the Haida Nation’s ability to fish roe herring is central to their culture, traditions and wayof life; the Supreme Court’s finding that Haida had a strong prima facie case of Aboriginal Title to all of Haida Gwaii; the fact that themarine and terrestrial area of Gwaii Haanas is designated as a Haida Heritage Site, as a National Park and as a National MarineConservation Areas Reserve; a 1993 Gwaii Haanas Agreement which specifically recognized the dual assertions of sovereignty, title andownership of both land and waters in Haida Gwaii by Canada and the Haida Nation; and the duty to foster reconciliation with andprotection of the constitutional rights of the Haida Nation. [88] Justice Manson concluded: [54] While these factors do not give the Haida any veto over what can be done in Haida Gwaii with respect to roe herringfishery, or fetter Canada’s rights, and must be balanced with commercial rights and public interest, in looking deeply at thefacts involved here, I find that the failure to consult meaningfully with the Haida Nation by Canada, and instead unilaterallyimposing a highly questionable opening of the roe herring fishery in Haida Gwaii for 2015, also constitutes irreparable harm.Canada’s unilateral implementation of the roe herring fishery in Haida Gwaii for 2015 compromises, rather than encourages,the mandated reconciliation process (Canada (Public Works and Government Services) v Musqueam First Nations, 2008FCA 214; leave to appeal refused [2008] SCC No. 374 at para 52; Platinex v Kitchenuhmaykoosib Inninwing First Nation, (ON SC), [2006] 4 CNLR 152 at paras 79-80). [89] Justice Manson also noted that Parks Canada recognized the unique need for the Haida Nation to be consulted and that therelationship under the 1993 Gwaii Haanas Agreement would fail if either party acted unilaterally.

Taken together, irreparable harm wasestablished in that case. [90] In my view, on its facts, Haida FC can be distinguished from the facts of the matter before me.

Most significantly, as discussedabove in the context of the asserted irreparable harm to the Area 10 herring stocks, this is not a situation like Haida FC where DFO hasacknowledged that its stock assessment is deeply flawed or that the stocks are confirmed as in decline. [91] Further, although GNN asserts that DFO acted "“unilaterally”", the record before me demonstrates that the Minister made herdecision to open the Area 10 SOK herring fishery based on DFO scientific input and consultations with GNN (and others).

By way ofexample: - The Kenny affidavit notes that he assumed the role of Lands and Resources Manager in October 2019. Between December4 and March 10, 2019 he attended at least five meetings with DFO at which GNN’s concerns were expressed. Late in 2020he again attended a series of meetings with DFO concerning the herring fishery and raised GNN’s concerns. He was alsocommunicating regularly with Steven Groves; - The Davis Affidavit states that DFO uses the IFMP process as a basis for consultation on fisheries plans. Each year, DFOupdates the Pacific Herring IFPF.

This includes bilateral consultations and engagement with Indigenous groups. InDecember 2020 the Minister approved the “mandate”, or proposed approach, for the draft 2020-2021 Pacific Herring IFMP.This permitted DFO regional officials to undertake public consultations on the draft IFMP including a series of meetings andcorrespondence with GNN concerning their opposition to a commercial herring fishery.

The result of broad consultations aswell as the bilateral consultations between DFO and the GNN were all considered when providing the Regional DirectorGeneral with advice and are reflected in the Memorandum for the Regional Director General, Pacific seeking approval ofthe 2021 Pacific Herring Fisheries Management Plan [Memorandum] (Davis Affidavit, Exhibit C); - The Memorandum notes that its purpose is to seek approval of the final 2021 IFMP and that on December 21, 2020 a draft

IFMP was distributed for 30-day consultation and pubic comments. Under the analysis and consideration

section of the Memorandum the concerns of many First Nations and others are identified. The Memorandum attaches both the March 22, 2019 and January 4, 2021 letters from GNN expressing their concerns. As to Area 10, it states: In Area 10 (neither a major or minor stock assessment area, with no stock assessment advice), the area was open in 2020 for two SOK operators; the Gwa’sala-‘Nakwaxda’xw Nation (GNN) closed pond license and one of the two non-First Nations open pond licenses.

The GNN have been strongly opposed to all commercial herring fisheries for several years, including in 2020 when they did not activate their license. The GNN have again expressed strong opposition in email correspondence to the Minister on January 4, 2021 (Tab 3), and in a meeting on December 10, 2020, with DFO staff. The two other licence holders in this area are very concerned with impacts to their commercial fishery opportunities and feel the concerns about the stock status from GNN are unfounded.

It is unlikely that the GNN would choose to activate their license, and the other two license holders will likely be able to reach agreement on an reduced fishing option again for this year. A maximum of one closed (held by the GNN) and one open pond (35 ton expected use) operation is recommended to proceed for 2021. This approach allows for some commercial access with passive gear that will not remove adult biomass and is low risk to the stock. However, this decision will continue to erode the Department’s relationship with the GNN.

Continued dialogue is planned to mitigate the risks of conflict and rebuild relationships; however, there is a threat of legal action and/or protest.

If a commercial fishery proceeds, areas closed to commercial fishing will be established to support successful FSC fisheries. - The Davis Affidavit states that DFO raised a number of proposed approaches for responding to GNN’s concerns including: restricting the number of commercial licences that would be permitted to operate from three to two (the GNN’s licence and one other); establishing areas within Area 10 that would be closed to commercial fishing to support the success of the GNN’s food, social, and ceremonial fisheries: strengthening in-season communications with the GNN to share information about the locations and depths of herring aggregations, and the locations of spawning events, which could also support the success of food, social, and ceremonial harvesting; and providing additional resources in 2021 to support the GNN in conducting additional assessment activities for herring stocks within Area 10, such as enabling the GNN to monitor herring abundance, observe spawning locations, and have personnel on the fishing grounds to insert boughs for food, social, and ceremonial fisheries harvest.

Mr. Davis states that it is his understanding that the GNN’s position has remained that the only acceptable fishery management approach is a closure of the commercial fishery in Area 10. - The Groves Affidavit states that Mr. Groves actively participated in consultations and negotiations with GNN since 2015 about the Area 10 fishery.

For the 2020 season DFO met with GNN three times during the pre-season, exchanged letters, emails and information in-season and post season, which he describes; - The 2020-2021 IFMP states that DFO consults with Indigenous nations on the annual Pacific Herring IFMP and the management of Pacific Herring more broadly in an effort to ensure that the duty to consult is fulfilled and that the proposed plans are informed by the best available information, including traditional knowledge and understanding of fisheries practices.

Consultation occurs through a variety of means. [ 92 ] The Davis Affidavit also speaks to the GNN Band Council resolutions, stating that DFO is aware that many Indigenous groups have passed resolutions that cite their traditional governance authorities to enact rules with respect to their asserted fishing rights and Aboriginal title. The resolutions of the GNN are similar to resolutions of other Indigenous groups. Mr.

Davis states that he was advised by the Aboriginal Negotiation division that DFO recognizes and accommodates these resolutions as follows: Resolutions by Indigenous groups regarding their fishery laws and customs provide DFO information about the fisheries management priorities and concerns of the Indigenous group, as well as information about their perspective on their rights and the role they seek to play in the management of their asserted territory, among other things.

DFO works from the understanding that the Minister has authority under the Fisheries Act to make fisheries management decisions, but DFO seeks to collaborate with Indigenous groups in the decision-making process, particularly for issues of importance to them. DFO also participates in several processes that offer Indigenous groups avenues for recognizing and implementing their rights.

With Crown Indigenous Relations and Northern Affairs Canada as lead federal department, DFO participates with other federal and provincial government partners to negotiate treaties through the BC Treaty Commission process, and with federal partners to negotiate formal Recognition of Indigenous Rights and Self Determination agreements. [ 93 ] The Groves Affidavit states that Mr. Groves was aware of the resolutions and took them into consideration in his discussions with GNN. [ 94 ] Based on the evidence before me I am satisfied that there was meaningful consultation with GNN about the 2020-2021 IFMP.

Whether that consultation was adequate will be determined when GNN’s judicial review is heard on the merits. For the purposes of this motion, the evidence establishes that DFO did not act " “unilaterally”, in the sense that the Minister’s decision was made after consultation had been conducted.

" The fact that DFO did not, ultimately, agree to GNN’s request that the fishery not be opened does not mean that no meaningful consultations have taken place ( Ahousaht 2019, at para 109). [ 95 ] It is beyond dispute that an objective of reconciliation is the fostering of durable, positive relationships and agreements with Indigenous peoples.

GNN refers to Van der Peet to assert that " “reconciliation of Indigenous legal orders and their common and civil law counterpart is central to the project of reconciliation” " and that reconciliation cannot be achieved without mutual recognition and respect between the various legal orders that together constitute the law of the land. [ 96 ] Van der Peet is a 1996 decision of the Supreme Court of Canada that considered how the Aboriginal rights recognized and affirmed by s 35 of the Constitution Act, 1982 are to be defined.

Section 35(1) of the Constitution Act, 1982 states that " “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. " In Van Der Peet the question was whether s. 35(1) recognized and affirmed the right of the Sto:lo to sell fish. In that regard, the Supreme Court spoke to reconciliation, including:

31. More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown.

The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre- existence of aboriginal societies with the sovereignty of the Crown. [ 97 ] In my view, Van der Peet is concerned with how substantive Aboriginal rights are to be identified. It also recognizes the importance of reconciliation and mutual respect.

It does not, however, establish that when, as in this case, a First Nation asserts the existence of its Indigenous law that speaks to fisheries conservation, which law is not aligned with a decision of the Minister made under federal fisheries law, that the former must necessarily prevail on the basis that to find otherwise would defeat the process of reconciliation. [ 98 ] When appearing before me counsel for GNN submitted that GNN was not asserting that it has a veto power based on its law as reflected in its Band Council resolutions.

However, that the resolutions and GNN’s significant decision to forego its FSC and commercial fishing in Area 10 for the last three years (demonstrating how important the stock health issue is to GNN), entitled it to deeper consultation and accommodation. [ 99 ] As I have indicated above, there was consultation on the 2020-2021 IFMP. The Minister was aware of GNN’s Band Council Resolutions and GNN’s concerns and disagreement with the opening of Area 10. It is also clear that the Minister was aware that the decision would " “continue to erode the Department’s relationship with the GNN” " .

The Memorandum states that continued dialogue is planned to mitigate the risks of conflict and rebuild relationships. Thus, the effect on reconciliation was one of the factors weighed by the Minister in the decision making process. [ 100 ] In my view, by asserting that GNN was entitled to deeper consultation given the existence of the Band Council resolutions, GNN is questioning the adequacy of the consultation, which will be determined when the merits of its application for judicial review are determined.

For the purposes of this injunction motion, I am satisfied that the evidence before me demonstrates that the consultation was sufficient so as not to irreparably harm reconciliation. C. Delay of GNN rights GNN’s position [ 101 ] GNN submits that preventing or delaying the exercise of GNN’s right to fish for food and ceremonial purposes in accordance with GNN’s legal traditions and customs constitutes irreparable harm. [ 102 ] GNN submits that this ground of irreparable harm must be understood in the light of the history of displacement and dispossession experienced by GNN.

Further delaying the recovery of the traditional GNN herring fishery will perpetuate the deep societal harms caused by the forcible relocation of the GNN people in the 1960’s and the loss of their traditional way of life. [ 103 ] GNN submits that its Aboriginal Rights can only be exercised in accordance GNN’s own law. For the last three years, GNN has determined that it cannot lawfully participate in the FSC or commercial fishery because herring stocks are too low and there is insufficient data to safely proceed with a commercial fishery.

GNN submits that " “By allowing a commercial fishery in circumstances where GNN’s Aboriginal rights cannot be lawfully exercised, DFO has prevented the exercise of its [GNN’s] rights, and delayed the recovery of the herring stocks to the point where they can be lawfully harvested " " ” " . Further, that DFO’s offer to prioritize the FSC fishery in Area 10 fails to reflect an understanding of the Indigenous perspective on GNN’s laws, which hold a place of equal importance to the common law. Nor can the FSC fishery be prioritized in circumstances where GNN has determined that it cannot be lawfully pursued.

Canada’s position [ 104 ] Canada submits that through DFO’s consultations with GNN, DFO is aware that GNN have voluntarily chosen not to participate in their own FSC fishery for three years because to do so would be a breach of their legal customs and obligations. GNN’s concerns were brought to the attention of the Regional Deputy General and the Minister during the process leading up to the approval of the 2020/21 Herring IFMP. DFO took these into account in the limited fishery that was recommended to open.

Ultimately, however, Canada and GNN were unable to reach common ground on the management of the fisheries in Area 10. Analysis [ 105 ] I acknowledge that GNN relies on the Walkus Affidavit and the affidavit of Deidre Cullon Ph.d, affirmed on March 4, 2021 [Cullon Affidavit] which appends a report authored by Dr. Cullon entitled Woy a n x – The Time of Herring Spawning: An Ethnohistory of the Gwa’sala-‘Nakwaxda’xw Nations’s Herring Fishery [Cullon Report]. The Cullon Report states that it considers herring and herring spawn use among GNN people, with emphasis on Smith Inlet.

It speaks to the traditional spawn on hemlock breach fishery practiced by the GNN. The Report and Chief Walkus’s affidavit also speak to the displacement of the GNN and relocation to Tsulquate Reserve, near Port Hardy. Chief Walkus also speaks to efforts by GNN over the last 20 years to reconnect with their land and to assert their Aboriginal Rights and Title against the provincial and federal governments. [ 106 ] I have found above that GNN has not established, based on stock abundance , that irreparable harm will occur if the SOK fishery, as delimited in the 2020-2021 IFMP, is permitted to proceed in Area 10.

The Minister’s decision to allow the commercial fishery is, in large part, based on DFO’s assessment of stock health. Thus, GNN has also not established that by allowing the commercial fishery to open DFO will irreparably harm the Area 10 herring stocks and thereby delay the recovery of the herring stocks. Further, the Minister’s decision does not prevent or delay GNN from pursuing its FSC or commercial fishery. That is to say, the option to pursue the FSC and commercial herring roe fishery is available to GNN by way of the IFMP and its licenses.

The Minister’s decision, which is what is challenged and is the subject of this injunction motion, does not prevent or delay these fisheries.

[ 107 ] GNN does not agree with the Minister that the Area 10 stocks can be safely fished at the levels the Minister has set and has taken the position that its laws therefore prevent any herring roe fishery in Area 10. GNN is, of course, free to disagree with the Minister and to refrain from the Area 10 SOK fisheries. However, the fact that it does so does not, in these circumstances, constitute irreparable harm. Balance of Convenience [ 108 ] Given that the test for an injunction is conjunctive, th

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