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.
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.
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