Barlow v. Canada
T-1876-99
MacKay J.
24/11/99
12 pp.
Application for interlocutory injunction order enjoining respondents, representatives from breaching applicant's treaty, constitutional rights to fish lobster, to trade produce of that fishing, writ of mandamus directing return of lobster traps seized from him, declaratory relief-Interlocutory application heard on November 18, 1999 in Fredericton, N.B.-On previous day, S.C.C. released decision in R. v. Marshall, [1999] S.C.J. No. 66 (Q.L.)-Applicant Ken Barlow Mi'kmaq Indian, member of Indian Island Indian Band residing at Band's reserve in New Brunswick-Claiming treaty, constitutional rights to fish, earn moderate livelihood by trading produce of fishing breached by actions of representatives of Department of Fisheries and Oceans (DFO)-In October 1999, applicant "designated fisher- Indian Island First Nation" assigned 250 numbered DFO lobster trap tags by Indian Island First Nation in accord with agreement between DFO and Indian Island First Nation-Applicant submitting on October 22, 1999 at Miramichi Bay DFO representatives pulled up, seized 60 lobster traps belonging to him-Interlocutory injunction exceptional relief to be awarded only where serious issue for consideration by Court, where applicant will suffer irreparable harm if interlocutory relief not granted and where balance of convenience favours award of relief sought-Applicant asserting treaty rights recently confirmed by S.C.C. in Marshall by reason of 1760 Treaty of Peace and Friendship between Mi'kmaq people and Crown-Court not ready to resolve question whether serious issue raised at that stage-Applicant not establishing will suffer irreparable harm between now and time when decision on application for declaratory relief may be made in their favour-No determination about balance of convenience-Application dismissed.