Authors: Rangi Jeerakathil, Erin Moch
In the recent Federal Court decision, ‘Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2018 FC 334, the Court refused to grant ‘Namgis First Nation’s (“NFN”) interlocutory injunction application as a result of NFN’s failure to maintain a dialogue with the affected fish farm operator, Marine Harvest Canada Inc. (“Marine Harvest”).
NFN applied to the Court for an interlocutory injunction against the Minister of Fisheries, Oceans and the Canadian Coast Guard (“Minister”), enjoining the Minister from issuing to Marine Harvest a license pursuant to section 56 of the Fishery (General) Regulations, which would authorize the introduction, release or transfer of fish (“Transfer License”) into open-water pens at Marine Harvest’s aquaculture facility, located on NFN’s asserted territory.
NFN also applied for an interlocutory injection against Marine Harvest, enjoining them from seeking, obtaining or acting upon a Transfer License in connection with this facility. This injunction would ultimately restrict Marine Harvest from transferring fish without first testing the fish for Piscine Orthoreoviris (“PRV”) or heart and skeletal muscle inflammation (“HSMI”).
NFN’s motion for interlocutory injunctive was made, pending the determination of the judicial review of a Fisheries and Oceans Canada policy that did not require the testing of smolts for PRV or HSMI prior to issuing Transfer Licenses.
In determining that interlocutory injunctive relief would not be granted, the Court applied the three-part test for interlocutory relief set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (AG),  1 SCR 311.
1. Was there a serious question to be tried?
The parties agreed that there as a serious issue to be tried, and those issues generally related to the Minister’s obligation to regulate fish transfers and the duty to consult and accommodate the NFN.
2. Would the applicant suffer irreparable harm if relief were refused?
The Court ultimately found there was a serious risk of irreparable harm on a number of fronts, including:
- the complete lack of consultation by the Minister in respect of transferring salmon into the NFN asserted territory, notwithstanding a previous acknowledgement by the Minister of a strong claim to Aboriginal fishing rights in the territory;
- that salmon fishing was of fundamental importance to NFN’s culture and way of life;
- evidence providing there was a serious risk to fishing, given the depleted wild salmon population in the asserted territory due to disease; and
- scientific evidence that connected the risk of PRV and HSMI to increased risks of disease and mortality among wild fish.
3. Was the balance of convenience favoured granting the relief sought?
The balance of convenience analysis involved determining which of the two parties would suffer a greater harm from granting or refusing interlocutory relief. This analysis included considering the damages both parties would suffer as well as the interests of the public.
Notwithstanding the risk of irreparable harm, the Court found that on a balance of conveniences Marine Harvest would suffer greater harm, and as such denied the relief. In concluding this, the Court considered that:
- Marine Harvest had been operating with Transfer Licenses for many years;
- Marine Harvest would suffer a loss of approximately $2.1 million due to lost income associated with the increased mortality and reduced growth of the salmon who were scheduled to be transferred in the coming days;
- NFN was delayed in filing this application, as Marine Harvest had informed NFN of the upcoming transfer 11 weeks before the application was brought, in which time Marine Harvest could have mitigated its losses;
- NFN frustrated good faith attempts at consultation by Marine Harvest, by failing to maintain a dialogue with Marine Harvest and by not informing Marine Harvest they would seek interlocutory injunction.
This decision confirms that prejudice by Aboriginal groups to organizations is a basis to refuse interlocutory injunctive relief to which an Aboriginal group would otherwise be entitled .
This decision also confirms that organizations at all times should make efforts to consult with Aboriginal groups in order to maintain their legal rights, as Aboriginal groups not willing to reciprocate may be denied injunctive relief.
MLT Aikins has significant experience advising clients with regards to Aboriginal matters. Our lawyers in this practice area would be pleased to discuss this recent decision with you and how it may impact your organization.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.