Canada: Rare Decision Stops Minister From Opening BC Fishery

Last Updated: March 28 2014
Article by Dianne Saxe

The federal government has had some troubles with the Supreme Court of Canada since taking office in 2006 (here is one recent example), but that's not the only court in Canada that has caused the federal government grief.

Several decisions of the Federal Court in relation to endangered species issues or other regulatory matters, like pest management, have highlighted serious deficiencies in decision making or actions from the federal government's ministers.

The most recent decision to suggest all is not well on the conservation front is related to the Minister of Fisheries and Oceans decision to allow the opening of a herring roe fishery on the west coast of Vancouver Island.

On February 20, 2014, Justice Mandamin of the Federal Court of Canada granted a request from five First Nations for an interlocutory injunction to stop the opening of the fishery. On February 28, 2014, the court issued its reasons.

This is an interim decision pending the hearing of the case on its merits, so it is possible that the Minister's decision will be upheld in the end, though not in time for this fishing season. For 2014, the fishery will remain closed, as it has been since 2006 for conservation reasons.

It is almost unheard of for a court to allow an interim injunction of this nature, but there were a number of reasons the court agreed with the Applicants to at least temporarily thwart the Minister's will, some unique to First Nation's constitutional rights and law.

To successfully obtain an injunction, the court considers three factors, as laid down by the Supreme Court of Canada: (1) is there is a serious issue to be tried; (2) if what is sought to be stopped goes ahead, will there be irreparable harm; and (3) who the balance of convenience favours, i.e. the Applicants or the Respondent Minister.

A serious issue to be tried

There was no dispute between the parties that a serious issue is to be tried. The court easily concluded there was because of the conservation issues and the Aboriginal rights of the Applicants to fish and sell fish in relation to the fish stock area.

Irreparable Harm

The court concluded that there would be irreparable harm because of the following:

(1) the Department of Fisheries and Oceans (DFO) bureaucracy recommended that the fishery should remain closed for 2014, a recommendation not accepted by the Minister;

(2) the concern on the part of the First Nations that the fishery had not adequately recovered, and the need to consider their views on conservation;

(3) perhaps most seriously, the court held "the setting of the total allowable catch at 10% instead of 20% as a precautionary approach" was, in the court's view, 'fudging the numbers', as it was not a science-based decision.  The court stated "it seems to me once the Minister and the DFO depart from science-based assessments the integrity of fisheries management system is harmed."

(4) the Applicants would lose their position and opportunity to reasonably participate in negotiations for the establishment of their constitutionally protected Aboriginal rights to a community-based commercial herring fishery.

Balance of Convenience

In this, the court  noted that it must consider the public interest; not just as between the Applicants and the Minister, or the Applicants and the commercial fishing sector, but also in reconciling constitutionally protected rights for the Aboriginal community. These rights require the Crown to act honourably, in accordance with its historical and future relationship with Aboriginal peoples.

Related to that, the public interest lies with giving recognition to Court declarations and directions, which require an honourable participation by the Crown in negotiations to resolve disputes. The court noted that to ignore or disregard such declarations not only ignores the obligation to follow court direction, but also lowers the standing of courts in the public eye.

The court concluded that while there would be an impact on the commercial fishery, that arose out of the Minister's decision to allow the fishery to open, and could be mitigated to a degree by reallocation of licences to different fishery locations.

The public interest also favoured upholding the DFO conservation approach. The court noted "this is not an instance where the Minister has chosen, with the support and advice of DFO and the assessment of of scientific evidence, to make a discretionary decision concerning the fishery."

Role of Science in Government Decision Making

Recent and ongoing commentary has noted that cuts to the federal government's environmental staff can be compared to the series of deep cuts that occurred in Ontario in the late 1990′s.  This did not have minor consequences in Ontario, leading as it did, at least in part, to the Walkerton Tragedy.

These cuts, as they appear designed to do along with other government decisions, will also mean a clear loss of an ability to make sound decisions based on science, which so heavily figured in the court's decision here.  Will it be harder to challenge decisions like these in the absence of scientific information before the court? It may well. Alternatively, the courts may also find that in keeping with the precautionary principle, no or poor information upon which to make decisions that require a scientific footing is as good a reason to interfere with ministerial decisions as clear information indicating reckless decisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dianne Saxe
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.