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

Greater Victoria Crime Stoppers is helping Saanich police locate a suspect who allegedly stole an iPhone from a building in the 3100-block of Foul Bay Road on April 7. (Image via the Greater Victoria Crime Stoppers)
Saanich police seek suspect in cell phone theft

White iPhone XR reported stolen from building on Foul Bay Road April 7

This map shows the pharmacies in Greater Victoria offering the AstraZeneca vaccine for people born in 1981 and earlier. As the map shows, no pharmacies on the Saanich Peninsula are offering the vaccine. (B.C. Government map)
No pharmacies on Saanich Peninsula offering AstraZeneca vaccine

People born in 1981 and earlier eligible for AstraZeneca vaccines

Victoria police are looking for a 38-year-old man after he allegedly assaulted and choked a missing 15-year-old victim in Beacon Hill Park Tuesday night. (Black Press Media file photo)
15-year-old choked in Beacon Hill tent, Victoria police assaulted while intervening

Police searching for 38-year-old suspect, two officers injured in altercation with park residents

West Shore RCMP responded to 164 calls for service the last weekend, including numerous violent assaults. (Black Press Media file photo)
West Shore RCMP responds to 164 calls for service over weekend

Calls included numerous bear spray assaults and domestic violence incidents

A total of 10 flight exposures have affected the Victoria International Airport in April so far, making it the highest monthly total since the start of the pandemic. (Black Press Media file photo)
Victoria hits record-breaking number of monthly COVID-19 flight exposures

As of April 21, 10 flight exposures reported for the month

A large crowd protested against COVID-19 measures at Sunset Beach in Vancouver on Tuesday, April 20, 2021. (Snapchat)
VIDEO: Large, police-patrolled crowds gather at Vancouver beach for COVID protests

Vancouver police said they patrolled the area and monitored all gatherings

(Black Press Media file photo)
POLL: Have rising prices caused you to give up hope of buying a home?

Do you have a spare 50 grand or so kicking around (have… Continue reading

Anyone with information on any of these individuals is asked to call 1-800-222-TIPS (8477) or visit the website victoriacrimestoppers.ca for more information.
Greater Victoria Crime Stoppers wanted list for the week of April 20

Greater Victoria Crime Stoppers is seeking the public’s help in locating the… Continue reading

FILE – The Instagram app is shown on an iPhone in Toronto on Monday, March 19, 2018. THE CANADIAN PRESS/Graeme Roy
Judge acquits B.C. teen boy ‘set up’ on sex assault charge based on Instagram messages

The girl and her friends did not have ‘good intentions’ towards the accused, judge says

Kai Palkeinen recently helped a car stuck on the riverbed near the Big Eddy Bridge. While the car could not be saved, some of the driver’s belongings were. It’s common for vehicles to get stuck in the area due to significantly changing river levels from Revelstoke Dam. (Photo by Kai Palkeinen)
“I just sank a car’: Revelstoke resident tries to save vehicle from the Columbia River

Although it’s not permitted, the riverbed near the city is popular for off roading

Meng Wanzhou, chief financial officer of Huawei, walks down the street with an acquaintance after leaving B.C. Supreme Court during a lunch break at her extradition hearing, in Vancouver, B.C., Thursday, April 1, 2021. A judge is scheduled to release her decision today on a request to delay the final leg of hearings in Meng Wanzhou’s extradition case. THE CANADIAN PRESS/Rich Lam
B.C. judge grants Meng Wanzhou’s request to delay extradition hearings

Lawyers for Canada’s attorney general had argued there is no justification to delay proceedings in the case

B.C. Premier John Horgan announces travel restrictions between the province’s regional health authorities at the legislature, April 19, 2021. (B.C. government photo)
B.C. sees 862 more COVID-19 cases Wednesday, seven deaths

Recreational travel restrictions set to begin Friday

B.C. Finance Minister Selina Robinson is photographed following her budget speech in the legislative assembly at the provincial legislature in Victoria, Tuesday, April 20, 2021. THE CANADIAN PRESS/Chad Hipolito
B.C. budget lacks innovative drive, vision during uncertain times, say experts

Finance Minister Selina Robinson’s budget sets out to spend $8.7 billion over three years on infrastructure

Using panels kept cold by water circulating within them, B.C. researchers compared thermal comfort in 60 of the world’s most populous cities, including Toronto. (Lea Ruefenacht)
B.C. researchers use air conditioning to combat spread of COVID particles

Dr. Adam Rysanek and his team have proven a new worthwhile system – a mixture of cooling panels and natural ventilation

Most Read