Chiefs vow to fight court action trying to limit where they can fish elvers

Indigenous groups are vowing to continue to fight a lawsuit trying to keep them off a number of waterways in southwestern New Brunswick. 

They also say accusations they threatened or confronted commercial fishermen are "wild allegations … and we don't condone such behaviour," according to a statement issued by four chiefs named in the lawsuit.

"We will fight these claims in court, where we'll argue there is no legal basis for the claims in this injunction against the Chiefs or the First Nations," said the chiefs. 

They said the Wolastoqey and other Indigenous people have a right to earn a livelihood through fishing by virtue of Section 35 of the Canadian Constitution and the Peace and Friendship treaties.

"It is inappropriate and frankly, irrelevant that any commercial licence-holder that acquires a privilege to fish resources from our traditional waters from the DFO, should make any statements that attempt to dictate limits of our rights and define our territory.

"The Wolastoqey have these rights in the entirety of our territory, which is described in the attached map," said the chiefs. 

The lawsuit filed by Mary Ann Holland names Neqotkuk Maliseet Nation (also known as Tobique First Nation), Sitansisk Wolastoquiyik (St. Mary's First Nation), Welamukotok First Nation (Oromocto First Nation), and Woodstock First Nation, along with the four chiefs and some other individuals.

In documents filed with the court, Holland acknowledged that Maliseet, or Wolastoqey, are entitled to engage in a limited moderate livelihood commercial fishery in their traditional territory but have historically never fished for elvers "for food, social, or ceremonial purposes."

In their joint statement, the chiefs said the Supreme Court "has been clear: a First Nation exercising its commercial fishing right is not limited to harvesting species that were harvested traditionally."

They also said the Wolastoqey Nation has been working with the Department of Fisheries and Oceans "toward an arrangement that respects the rights of the First Nations to earn a livelihood through fishing."

They say the government "has continued to prioritize recreational and non-Indigenous commercial fishing interests" and placed "constraints" on Indigenous fishers on harvesting other species.

Holland, who has fished for elvers since 1988, applied to the Court of Queen's Bench in April for an injunction to stop Indigenous fishermen from fishing areas where she claims "exclusive" rights to fish, and from threatening and intimidating her workers. 

She said things came to a head on the Magaguadavic River, and others in southwestern New Brunswick in the St. Stephen-St. George area at the end of April. According to court documents, she said Indigenous fishermen "positioned themselves and their nets so as to reduce the number of elvers which could be caught by said fishers … and proceeded to poach the elvers for themselves." 

On April 29, Justice Danys Delaquis ordered the defendants to stop "threatening, coercing, harassing or intimidating" the plaintiff and the plaintiff's fishers. The defendants were also ordered to stop fishing the plaintiff's designated watercourses, although another affidavit by Holland said the defendants were back on the water the same day the judge made the order. 

The parties were back in court on May 13. After hearing arguments from both sides, Delaquis said he needed more time to make a decision. He said the interim order will remain in effect until he renders a decision. 

In a separate court action launched last year, multiple First Nations are asking the courts to recognize that New Brunswick and surrounding areas were never ceded to settlers. 

The notice of action was filed in August 2021 and lists as defendants, the Province of New Brunswick, the Attorney General of Canada, and dozens of privately owned businesses.