B.C. fishermen say they're stuck in the middle of what has turned into a legal battle between the federal fisheries department and five Nuu-chah-nulth First Nations.
The commercial herring roe fishery on the west coast of Vancouver Island, the Central Coast and Haida Gwaii is at the centre of the dispute. The largest fishermen's union in British Columbia is now urging all its members not to fish in these disputed areas.
The move follows a recent Federal Court decision to overrule the Department of Fisheries and Oceans Canada's (DFO) decision to reopen commercial herring roe fisheries on the west coast of Vancouver Island last week, citing "fishy" government science among the reasons for the decision.
Fishermen worry that the two remaining areas could end up closed as well and will elect not to fish there as an "act of good faith to First Nations" -- despite DFO's recommendations.
"DFO told us we could set up fisheries but now we find out that they themselves recommended the fisheries minister not to reopen them and now there's an injunction and we're not allowed to fish there," says Kim Olsen, president of United Fishermen and Allied Workers' Union, B.C.'s largest union representing fisheries workers.
Olsen says this could likely have been prevented if DFO hadn't failed to seek consultation with First Nations before moving on with the reopening plans.
"It seems like they don't have their act together," he says. "They just do these things with no proper consultations and then it results in this big kerfuffle that we're in right now."
Court accuses DFO of 'fudging the numbers'
Fifty fishermen have applied and paid for fishing licences on the west coast of Vancouver Island for their 2014 fisheries and will have to relocate because of the injunction. They're all out money and time spent getting a business plan together to go out and catch fish, says Olsen.
"We're ultimately shut down due to DFO's lack of consultation process," he says.
The west coast Vancouver Island and Central Coast have been closed for commercial herring roe fisheries since 2006 when the herring stock was deemed too low to sustain commercial fisheries. The areas around Haida Gwaii have been closed even longer.
So it came as a surprise when fisheries minister Gail Shea announced on Dec. 23, 2013 that the three areas would be reopened to a "conservative" harvest rate of 10 per cent and invited commercial fishermen to pick them for their 2014 fisheries.
The minister's decision came despite recommendations from her own scientists not to reopen the west coast of Vancouver Island, Central Coast, and the Haida Gwaii as an internal document made public in court revealed.
First Nations immediately opposed the minister's decision and five Nuu-chah-nulth nations subsequently filed an injunction against the reopening of the fisheries in which they claimed their aboriginal territorial rights were being overstepped by the DFO's decision to reopen the commercial herring fisheries.
On Feb. 21, 2014, Federal Judge Leonard Mandamin ruled in favour of the injunction, noting that DFO's decision to reopen the areas at a total allowable catch of 10 per cent instead of 20 per cent was, in his view: "fudging the numbers."
"It is not science-based, but in effect a statement 'there is a conservation concern here, but if the fishery is to be opened, take less,'" he wrote, noting that the DFO's approach was used to sidestep the conservation assessment.
"It seems to me once the minister and the DFO depart from science-based assessments the integrity of fisheries management system is harmed," the judge wrote.
Commercial fishermen fear confrontation
Olsen says he still feels confident with DFO's science despite the department's internal confusion.
"There's probably enough fish to prosecute a fishery," he says -- but with the vocal opposition from First Nations in all three areas he dares not recommend his members to pursue it for fear of open confrontations.
"Somehow it always ends up that the fishermen are the bad guys and that we provoked it, yet it was DFO who recommended fishing there in the first place," says Olsen.
His problem with DFO's science is who pays for it. Last year, the DFO asked the industry to pay half the expenses for the herring stock assessment for 2014, he says.
This amounted to $500,000 which herring fishermen covered by agreeing to pay $25 per tonne of the total assessed herring stock up front. "Even if we don't catch that much," says Olsen.
With the injunction in place on the west coast of Vancouver Island, Olsen says that commercial herring fishermen are out 1,900 tonnes which they paid DFO to have assessed.
"That’s a direct cost to the fishermen and it ultimately comes out of the crew share," says Olsen.
Herring fishermen who picked west coast of Vancouver Island -- and possibly Central Coast or Haida Gwaii -- will now have to fish in the Strait of Georgia or Prince Rupert if they applied for licences in those areas. If not, "they don't get any money for what they picked," says Olsen. "They're out of the water and have to sit on the beach."
Sophie Doucet, director of communications for the minister's office explained to The Tyee by email that the decision to reopen the herring fishery was based on "solid fisheries science."
"Recent stock forecasts have shown that herring stock abundance has increased above the commercial fishery cut-off point in these areas," Doucet wrote, adding that the injunction has not affected commercial roe herring fishery openings elsewhere in British Columbia.
"In these areas we continue to work with the industry and First Nations in advance of the opening of the fishing season."
The minister's office and DFO declined to comment further as they are currently reviewing the Federal Court's written decision.