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Since time immemorial, the Haíɫzaqv (Heiltsuk) Nation has sustainably harvested wán̓ái (herring) in their waters.
But in 2022, one month before the spawn-on-kelp harvesting season, Fisheries and Oceans Canada (DFO) shut down Haíɫzaqv’s commercial fishery — prompting dismay from the First Nation’s leadership at the infringement of their rights to steward their own territories.
Now, after unsuccessful negotiations with the DFO, Haíɫzaqv is moving forward with a lawsuit against the federal government for banning the herring spawn-on-kelp fishery two years ago.
“We did not take the decision to commence legal action lightly,” said elected Chief Marilyn Slett of launching the lawsuit in a news release on Feb. 27.
“We have worked hard to build trust and collaboratively manage herring stocks in Heiltsuk territory with DFO. However, the unilateral decision to close our commercial SOK fishery seriously undermined those efforts and infringed our rights.”
The nation filed a civil claim against the Attorney General of “Canada” in B.C. Supreme Court in late December. In the filing, Haíɫzaqv says it has developed joint management plans for harvests with staff from the Department of Fisheries and Oceans since 2015.
In 2022, Haíɫzaqv and DFO’s joint plan called for the nation to be able to take nearly 138,000 kilograms of herring eggs for commercial purposes in that season’s spawn-on-kelp harvest, which involves removing herring eggs from kelp after herring have spawned.
However, according to the nation, then-fisheries minister Joyce Murray rejected the plan for 2022 and made the unilateral decision to close the commercial pacific herring fishery in central coastal waters that same year.
Chief Slett said Haíɫzaqv worked to resolve the dispute outside of court but was unsuccessful. The process involved meeting with Murray in January 2022 and sending a letter to Prime Minister Justin Trudeau and the fisheries minister expressing concerns later that year.
“Minister Murray responded [to Haíɫzaqv’s letter] in a letter defending her decision. Heiltsuk and Minister Murray exchanged letters again in August and September of 2022,” Slett said in an email on Feb. 29.
“In that exchange, Heiltsuk sought confirmation of DFO’s commitment to joint management of the Central Coast Pacific herring fishery. Minister Murray responded by affirming DFO’s commitment to collaborative management of that fishery.”
The DFO declined a request for comment, saying “it would be inappropriate” to do so since the matter is currently before the court.
Haíɫzaqv has maintained that the closure of the fishery was not necessary to conserve Pacific herring stocks because, unlike sac roe herring fisheries, the spawn-on-kelp herring fishery “does not cause fish mortality and is self-limiting because it is only viable when there is abundant spawn in the harvest area,” a 2022 news release stated.
“DFO’s decision fails to reflect this important distinction between seine and gillnet sac roe fisheries and Heiltsuk’s SOK fishery.”
According to Slett, the minister’s decision infringed on Haíɫzaqv’s constitutionally protected Aboriginal right to harvest spawn-on-kelp, as confirmed 27 years ago in the R. v. Gladstone case decided by the Supreme Court of Canada.
It has also had spiritual and economic impacts on the community — in particular the loss of income and jobs for the approximately 700 community members participating in all aspects of the fishery in normal years.
According to Slett, the loss of funds from a single season of the commercial fishery amounts to about $6.3 million, including about $250,000 in lost salaries for 40 plant workers.
Slett said the next step would be for “Canada” to respond to the claim, following which both parties would exchange relevant documents and await a trial date if necessary.
“Heiltsuk would prefer to resolve the issues in the claim by consent without the need for a trial,” she said.
“From Heiltsuk’s perspective, a meaningful resolution would include compensation for the losses suffered by the community and a commitment from DFO to joint management of the Central Coast Pacific herring fishery going forward.”
Haíɫzaqv Hereditary Chief Hemas Harvey Humchitt said the Nation is “frustrated to have to take this step again” given its ongoing relationship with the federal government.
“It was only a few years ago that Heiltsuk resolved a claim against the Government of Canada for past infringements of our rights to fish herring spawn-on-kelp,” he said in a news release.
“Respect for joint management is a critical part of the reconciliation agreements we have signed with Canada. We are hopeful this can be made right, and that we can return to walking the path of Haíɫcístut [a Haíɫzaqv word which means ‘to turn things around and make them right again’] once again.”
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