Indigenous fishers still banned from catching elvers in Magaguadavic after hearing

A judge is considering whether to extend an order preventing Indigenous fishers from harvesting elvers from waterways claimed by a licensed commercial fishery.

The mouth of the Magaguadavic River in southwestern New Brunswick has become fraught territory, according to Mary Ann Holland, who filed a lawsuit alleging Indigenous fishers were threatening her staff, disrupting her operations and "poaching" the young American eels without a licence.

She alleges the river doesn't fall under Indigenous territory and "elvers have never been caught by the Maliseet for food, social, or ceremonial purposes." 

There is currently a land claim filed by multiple First Nations asking the courts to recognize that New Brunswick and surrounding areas were never ceded to settlers. 

Holland, who operates the fishery under co-plaintiffs Brunswick Aquaculture and Alder Seafood, said she's the only one entitled to catch elvers in the area, and she has the licence from the Department of Fisheries and Oceans.

Can Holland prove 'irreparable harm?'

At issue is whether the judge should ban Indigenous people from fishing for elvers in that area until the actual lawsuit goes through the justice system and a final decision is made.

To keep the injunction, Holland's lawyer has to prove there is "irreparable harm" in Indigenous fishers continuing to catch elvers on the Magaguadavic.

Holland's lawyer Barry Morrison said loss of business, potential loss of employees, and the threatening of elver populations are all harms caused by Indigenous fishers that can't be easily repaired.

He said employees have been feeling threatened, and Holland worries she will lose her workers because they feel unsafe.

Defence lawyer Nick Kennedy argued Morrison can't make conservation claims because that's a complicated issue and is the purview of DFO.

And he said loss of business is not "irreparable" harm because if Holland were to win the case, she could demand damages for money lost.

Morrison wants the judge to extend the ban until the end of the elver season around July 30, or until another order is made to remove it.

DFO extends quota to First Nations 

In April, Justice Danys Delaquis ordered the Indigenous fishers to stop "threatening, coercing, harassing or intimidating" the plaintiff and the plaintiff's fishers. He also ordered them to stop fishing in the plaintiff's designated watercourses and "ordering, directing, persuading, aiding, abetting and encouraging" others to do so.

An injunction is often made to stop alleged harm from continuing while a lawsuit is mid-process.

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

The first order was first made without defence lawyers for Indigenous groups present. After hearing arguments from both sides on May 4, Delaquis further extended the injunction until Friday, so both sides can submit more evidence.

After hearing arguments Friday, Delaquis said he needs time to consider the evidence and arguments, but that he will render a decision "as soon as possible."

"The interim order will have to remain in place until I render a decision," he said. "I can't render a decision today."

In an affidavit, Holland alleges Indigenous fishers were back on the water the same day the order to stay off was made.