Judge refuses to scrap eel fisher's lawsuit against chiefs

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Despite a second lawsuit swimming upstream in Fredericton, a Rothesay eel fisher’s claim against Indigenous chiefs and fishers will stay alive, a Saint John judge ruled Tuesday.

Mary Ann Holland and her companies Brunswick Aquaculture Limited and Alder Seafood Limited first filed lawsuits in 2022 against four Wolastoqey First Nations, their chiefs, and unidentified fishers from their communities who they say were involved in unauthorized fishing in Charlotte County.

The lawsuit names Chief Allan ‘Chicky’ Polchies and Sitansisk (St. Mary’s First Nation), Chief Shelley Sabattis and Welamukotuk (Oromocto First Nation), Chief Ross Perley and Neqotkuk (Tobique First Nation) and Chief Tim Paul and Wotstak (Woodstock First Nation).

In a statement to Brunswick News Wednesday, Perley said: “Lawsuits such as these detract from the legitimate issues of respecting Indigenous harvesting rights. The legal argument of this baseless claim sets up unreasonable expectations that First Nations’ Chiefs are responsible to do the job of the Department of Fisheries and Oceans enforcement officers.”

Nick Kennedy, lawyer representing the nations and their chiefs, argued that the lawsuit, already amended twice, didn’t have a “reasonable” argument backed by material, factual allegations about how the chiefs allegedly directed or encouraged the unauthorized fishing, and argued it was “frivolous and vexatious.” But Justice Arthur Doyle said it was a “complex” issue that needed a trial judge.

Holland’s company has a licence to catch elver eels, also known as glass eels, or American eels, on certain New Brunswick rivers, including the Magaguadavic River. The baby eels can be sold to Chinese buyers for as much as $3,300 per kilogram, according to 2022 court documents.

Indigenous fishers asserted a right to join the industry and were allotted a portion of the total allowable catch in 2022. But the industry has been closed since April 2023, with the government citing conflicts between harvesters in Nova Scotia and New Brunswick.

Holland obtained an injunction preventing Indigenous fishers from harassing or obstructing her workers in 2022 after alleging that fishers claiming to be from the Nations in question blocked the flow of elvers in Charlotte County where she is licensed to fish. Holland sued for contempt of court after she alleged the fishers came back in 2023, but Doyle dismissed the motion last April, saying chiefs cannot be held vicariously liable for their members’ actions and there was “no credible or reliable evidence” that fishers were Indigenous.

In March, Holland won a N.B. Court of Appeal decision to obtain the names attached to vehicles she said were used by the fishers in the spring of 2023. That month, she filed suit in Fredericton against more than 100 people who allegedly owned the cars, including Sabattis.

Kennedy’s motion to strike the claim against the Nations and their chiefs was put on hold while the Court of Appeal hearing was underway but returned Tuesday. Holland’s lawyer Barry Morrison told the court that his client will apply to join the two lawsuits together in Fredericton.

Kennedy said the case had been “hanging over the head” of the Nations for two years, and involved “sweeping allegations.” After the failure of the contempt motion, Kennedy said the plaintiffs had called vicarious liability a “distraction,” maintaining instead that the chiefs were directly involved in condoning or ordering fishers to fish in Holland’s license area.

Holland and Morrison alleged in affidavits that they had confronted fishers on the river who had told her that they had been sent there by their chiefs, with one person saying he had attended a meeting where Polchies authorized this. But Kennedy said that’s “double hearsay,” and that when chiefs were called to testify in person on the contempt motion they denied the allegations, saying they had notified their members specifically where their community’s licences allowed them to fish.

Kennedy also said that Morrison had failed to explain which chiefs did what, in favour of an “enterprise liability” approach, accusing all of them “to a common end.” Kennedy said the “who, where, when, why, how” of the chiefs’ direct involvement had not been argued, and “even less” regarding the Nations themselves.

Morrison rose to object to Kennedy mentioning the testimony on the contempt motion, saying it should be considered separately. Morrison disagreed that the lawsuit was frivolous and said the factual arguments had to be taken at face value at the pleading stage, according to Doyle’s ruling.

Doyle said a pleading can be struck only if it has “no reasonable cause of action,” meaning it would have no chance to succeed even given a “generous” reading. He said it would be premature to dismiss facts alleged in the lawsuit at the “early stage” in proceedings, even if they take a “radical viewpoint.”

“I’m not satisfied there’s no reasonable chance of success,” Doyle said, saying a trial judge would be in a better position to rule what allegations had merit or not. Doyle said that conclusion also meant he didn’t agree that the suit was frivolous or vexatious.

The judge said Kennedy and the chiefs could still make the argument against the lawsuit at a later time, but if he threw out the lawsuit, it would “deprive” Morrison and Holland of their chance to do so.

Kennedy had also argued that an allegation of conspiracy had been “tacked on” by the plaintiffs and hadn’t met a high bar befitting of a more  serious allegation. Doyle refused to rule on that point and gave the defendants time to amend the statement of claim again to clarify that particular argument.

In the statement, Perley said the statement of claim is “frivolous, based on speculation and double hearsay” and contains language which “inflames dangerous racism and emboldens harassment against our people.

“While Mary Ann Holland claims losses, DFO recorded that her license quota was fished in full. The continuous abuse of our Chiefs and people is a distraction from the real issues at hand: respecting Indigenous harvesting rights and changes that break down systemic racism within DFO and the justice systems.”

Holland and Morrison declined a request for comment.