Judge overrules minister’s decision to open herring fishery

By Denise Ryan, Vancouver Sun

B.C. First Nations won a major victory Friday when a Federal Court judge granted an injunction blocking the opening this year of a herring fishery on the west coast of Vancouver Island.

The decision came after an internal memo revealed Fisheries Minister Gail Shea overruled recommendations of scientists in her own department.

The DFO memo revealed that department experts had recommended maintaining the herring fisheries closure for the 2014 season, and that Shea had nonetheless recommended opening the fishery in three disputed areas.

The memorandum to the minister, written by the federal herring co-ordinator in Vancouver, and signed by David Bevan, the DFO’s associate deputy minister, was based on recommendations of scientists and B.C. herring managers, but ultimately rejected by Shea. In a hand-printed note alongside her signature, Shea wrote, “The minister agrees to an opening at a conservative 10-per-cent harvest rate for the 2014 fishing season.”

The decision to open the commercial herring fisheries was a surprise. Shea announced her approval of the reopening on Dec. 23. Legal action was brought by five Nuu-chah-nulth Nations on Feb. 9, and heard Feb. 21 by Judge Leonard S. Mandamin.

The commercial roe herring fisheries on the west coast of Vancouver Island have been closed over conservation concerns since 2006. The fishery was also closed between 1968 and 1971 after a complete collapse of the herring population.

The memorandum for the minister, included as an attachment to affidavits filed by the DFO in defence of reopening the herring fisheries “was a total surprise,” said Don Hall, Uu-a-thluk program manager for the Nuu-chah-nulth Tribal Council Fisheries, and was a key factor in the judge’s decision not to grant the commercial opening.

“The entire government’s own experts were recommending not to fish, but (the Minister) overruled that, not once referencing these recommendations.”

Hall added, “It is important to make clear Nuu-chah-nulth do not oppose commercial fisheries, but do not want to see them unless there is sufficient herring to support them.”

Hall also said the judge was receptive to arguments that there is plenty of herring available for commercial fishing in Prince Rupert and the Strait of Georgia. However, Hall cautions that there could be broader implications to the minister’s decision.

“The federal government is saying they are going to listen to scientific advice, they’ve said that with the fisheries, they’ve said that with Enbridge Northern Gateway, but here we have a clear indication that the government is choosing to ignore such advice.”

The minister has not commented on Friday’s ruling and the judge’s written ruling has not yet been made available.