Commercial elver fisher accuses Indigenous groups of poaching

A legal battle is brewing in southwestern New Brunswick between a licensed commercial eel fisher and some First Nations fishers. 

Mary Ann Holland, who has been fishing elvers since 1988, is accusing several Indigenous groups and individuals of poaching elvers in waterways where she has exclusive rights to fish. 

She has applied to the Court of Queen's Bench for an injunction to stop them from fishing and from threatening and intimidating behaviour toward her fishers. 

The parties were in court on Wednesday, but lawyers recently hired by some defendants requested more time. As a result, the hearing was adjourned until May 13. 

On April 29, the defendants were ordered by the judge 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 and "ordering, directing, persuading, aiding, abetting and encouraging" others to do so. 

But in an affidavit filed with the court on May 3, Holland said the defendants were back on the water the same day the judge made the order. In fact, Holland said an even larger group was present late on April 29 when she and her lawyer, Barry Morrison, arrived at the Magaguadavic River to deliver copies of court documents. 

According to the statement of claim, Holland's commercial licence gives her "exclusive rights" to fish elvers in a number of waterways in southwestern New Brunswick

Holland operates the fishery under co-plaintiff's Brunswick Aquaculture and Alder Seafood. 

"As indigenous people, in addition to receiving funding from the Government of Canada, the Maliseet are entitled to engage in a limited moderate livelihood commercial fishery in their traditional territory to secure necessaries …," according to the statement of claim. 

The document goes on to say that "elvers have never been caught by the Maliseet for food, social, or ceremonial purposes." 

The document said Holland's fishers were going about their business on the nights of April 26, 27, and 28 when they were "interrupted and hampered" by the defendants. As the court documents explain, elvers, or baby American eels, are harvested at night on high tides as they enter watercourses on their way upstream. 

In Holland's affidavit, she says, "the most egregious event" took place on the Magaguadavic River on April 27 "when more than 30 members of the Defendant First Nations and other Defendants swarmed their way onto the banks of the river in intimidating manner where the Plaintiffs' fishers were catching elvers and 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." 

The statement of claim said two officials with the Department of Fisheries and Oceans told the defendants they were poaching and instructed them to stop, "but the defendants arrogantly and in a high handed manner refused to stop and successfully harvested for themselves a substantial number of elvers." 

The plaintiffs say the defendants refused to identify themselves that night, saying instead that they were fishing under the authority of their chiefs. 

"They stated they were exercising their First Nations rights on unceded territory and were doing so not just to gain income, but to force the Government of Canada to recognize those rights and would continue to exercise those rights whenever they wanted to exercise them," states the court document, copies of which were obtained by CBC. 

Holland said the "poachers" also interfered with her fishers on other waterways where she has exclusive rights. She said several people positioned themselves and their nets directly in front of where her fishers had set up, preventing them from catching anything. She said her fishers "effectively were forced off the stream to avoid further confrontation." 

Holland said she approached three of them and told them about the court injunction that had been issued earlier that day. 

"One of them, who appeared to be the leader, told me they would continue to fish at that location until the season was over despite the Court Order, as that was their Indigenous right. I then left," said Holland in her affidavit filed with the court. 

Holland went on to say that officials with the Department of Fisheries and Oceans managed to get the Indigenous fishers to leave. But they returned the next night. 

Included in the court file is a document created by the Maliseet people, describing their territory as the St. John River watershed. 

"None of the watercourses I fish are in the Saint John River watershed," Holland wrote in her affidavit filed with the court on May 3. "The watersheds I have a licence for total less than 6,000 square kilometres." 

The list of defendants includes 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.

According to court documents, there were also First Nations fishers from Nova Scotia involved in the confrontations on the Magaguadavic River. 

Holland said one of the men identified himself as a member of the Millbrook Mi'kmaq First Nation in Nova Scotia. He said he read about the fishing opportunity on a poster he saw on a lamp post in the St. Mary's First Nation telling people where and when to meet. 

CBC left messages for the chiefs of all four bands named in the lawsuit, who are also listed individually as defendants, but none responded by publication time.