Takush (Smith Inlet), north of Vancouver Island on the mainland is the traditional homeland of the Gwa’sala Nation.

Takush (Smith Inlet), north of Vancouver Island on the mainland is the traditional homeland of the Gwa’sala Nation.

Judge rejects North Island First Nation’s herring fishery injunction request

Federal ruling said Gwa’sala-‘Nakwaxda’xw Nation failed to demonstrate ‘irreparable harm’

The federal court decided against Gwa’sala-‘Nakwaxda’xw First Nations’ application to stop the herring fishery in Smith Inlet this year.

In a decision issued March 18, Judge Cecily Strickland rejected the Nations’ assertion that the herring stocks were too low to fish, siding with Fisheries and Oceans Canada (DFO) who say the stocks are healthy enough for the minor fishery.

Gwa’sala-‘Nakwaxda’xw had applied for an interlocutory injunction on March 5 to stop the season from opening in mid-March.

At the heart of the dispute was a difference in data.

As a minor fishery — there are only three licenses for herring in Area 10 — DFO does not conduct a formal stock assessment but relies on dive studies, where divers look for eggs on kelp and make estimations about how abundant they are. This is standard for small fisheries.

Last year, the DFO and Gwa’sala-‘Nakwaxda’xw did separate dive surveys and came up with different results.

The DFO calculated 888.50 tonnes, where Gwa’sala-‘Nakwaxda’xw’s survey, done three weeks later due to COVID-19 delays, found negligible numbers of roe. Affidavits submitted to the court claim the other commercial fisher abandoned Area 10 early that year, unable to catch enough.

Chart showing fluctuations in herring roe since 1999. Data from affidavits provided by Gwa’sala-‘Nakwaxda’xw and Fisheries and Oceans Canada. (Zoe Ducklow)


The Nation uses 2,000 tonnes as an average expected volume of roe based on historic values. DFO accepts a lower average as healthy, leading to an inherent disagreement about what a healthy herring roe fishery looks like.

Ultimately the judge sided with DFO, saying “while [Gwa’sala-‘Nakwaxda’xw] 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.”

She accepted DFO’s reasoning for why Gwa’sala-‘Nakwaxda’xw’s 2020 dive survey was different — later in the season and in different areas.

READ MORE: First Nation files injunction against DFO for small Smith Inlet herring fishery

The injunction application was partly based on Gwa’sala-‘Nakwaxda’xw’s right to assert their “laws, knowledge and customs” which they consider “to be binding on [Gwa’sala-‘Nakwaxda’xw] peoples and on all those who use [Gwa’sala-‘Nakwaxda’xw] territories.”

According to that law, no one should be allowed to harvest roe in Smith Inlet until the stocks are at a healthy level.

The judge did not dispute their claim to rights in the area, but said they failed to prove that herring stocks in Smith Inlet were in sufficient danger to justify an injunction.

Three requirements have to be met for an injunction to be issued: first the issue is serious in nature, second that there will be irreparable harm caused without the injunction, and third the “balance of convenience” must favour the injunction.

The judge found that while it was a serious matter, the issue of irreparable harm was not conclusively proved and therefore the “balance of convenience” also fell to DFO’s favour since she didn’t agree that either closing or opening the fishery this year would have significant effect on the herring population.

Gwa’sala-‘Nakwaxda’xw is also ordered to pay costs to DFO.

Do you have something to add to this story or something else we should report on? Email: zoe.ducklow@blackpress.ca


DFOfishingIndigenous

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

B.C. provincial health officer Dr. Bonnie Henry speaks at a press conference Monday, April 18. (B.C. Government image)
New COVID-19 cases tick down on the central Island

New cases held to single digits three days in a row

Cheryl Dill visits the PQB News/VI Free Daily studio. (Peter McCully photo)
PQBeat: Talking jobs, tourism and business with Cheryl Dill in Parksville

Podcast: COVID-19 has far-reaching impacts on Vancouver Island

(File photo)
PQB crime report: Vandals strike in Parksville, prowler lurks in Nanoose Bay

Oceanside RCMP receive 276 complaints in one-week period

In this image from NASA, NASA’s experimental Mars helicopter Ingenuity lands on the surface of Mars Monday, April 19, 2021. The little 4-pound helicopter rose from the dusty red surface into the thin Martian air Monday, achieving the first powered, controlled flight on another planet. (NASA via AP)
VIDEO: NASA’s Mars helicopter takes flight, 1st for another planet

The $85 million helicopter demo was considered high risk, yet high reward

Families of two of three workers killed in a train derailment near Field, B.C., in 2019 have filed lawsuits accusing Canadian Pacific of gross negligence. The derailment sent 99 grain cars and two locomotives off the tracks. THE CANADIAN PRESS/Jeff McIntosh
Families of workers killed in Field train derailment allege negligence in lawsuit

Lawsuits allege the workers weren’t provided a safe work environment

(New Westminster Police)
4 youth arrested after 30-person brawl in New Westminster leaves 1 seriously injured

Police are looking for witnesses who saw the incident take place

South Surrey’s Paul Cottrell, who works with the DFO, tows a grey whale out of Semiahmoo Bay Sunday. (Contributed photo)
Dead whale floating near White Rock towed to shore for necropsy

Animal has been dead since at least April 15

Wickaninnish (Clifford Atleo) plays the drum while singing the Nuu-chah-nulth song on the court steps in Vancouver In a picture from April 2018. Photo credit, Melody Charlie.
Five western Vancouver Island First Nations celebrate legal fishing victory

Court ruling confirms Nuu-chah-nulth fishing rights in case dating back to 2003

Sunday’s storm rocked one of the ferries crossing Kootenay Lake. Photo: Dirk Jonker
VIDEO: Storm makes for wild ferry ride across Kootenay Lake

The video was captured by ferry employee Dirk Jonker

Dr. Bonnie Henry gives her daily media briefing regarding Covid-19 for the province of British Columbia in Victoria, B.C, Monday, December 7, 2020. THE CANADIAN PRESS/Jonathan Hayward
Toddler marks youngest British Columbian to die related to COVID-19

Child one of eight people to die from virus this weekend

Chakalaka Bar & Grill remains open in defiance of orders from Island Health to close. (Cole Schisler photo)
Island Health seeks injunction against restaurant defying COVID-19 orders

VIHA says Ladysmith-area Chakalaka Bar and Grill also violating water and sewer regulations

Pharmacist Barbara Violo arranges all the empty vials of the Oxford-AstraZeneca COVID-19 vaccines that she has provided to customers at the Junction Chemist which is a independent pharmacy during the COVID-19 pandemic in Toronto, on Monday, April 19, 2021. THE CANADIAN PRESS/Nathan Denette
B.C. to open up AstraZeneca vaccines for all people 40+, set up clinics in hot spots

A total of 13 neighbourhoods and communities will receive the AstraZeneca vaccine

Most Read