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Court Rules in Favour of Non-Indigenous Interests in Lucrative Elver Fishery

Published:

June 24, 2022

Author(s):

• Jeffery Callaghan

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The New Brunswick Court of Queen’s Bench has issued a court order to stop Indigenous fishers (all apparently members of the Wolastoqey Nation) allegedly “poaching” highly lucrative juvenile American eels (a.k.a. elvers or “glass eels”) from waters under exclusive licence to a non-Indigenous commercial business. Following heightened tensions in Nova Scotia’s lobster fishery, the May 19, 2022 decision in Holland v. Neqotkuk Maliset Nation is but one more example where Aboriginal and Treaty Rights protected under section 35 of the Constitution Act appear to run head-on into lucrative commercial fishing interests in Atlantic Canada. Continued conflict and disagreement appears inevitable until stakeholders advance the reconciliation of Indigenous and non-Indigenous interests in Atlantic Canadian fisheries. And that will take leadership from the Department of Fisheries and Oceans (DFO) and other government actors, careful policing approaches, meaningful consultation, and negotiations, as they relate to fisheries in Atlantic Canadian waters.

The Context

The context in which the dispute in Holland v. Neqotkuk Maliset Nation arose informs an analysis of the Court’s decision.

The Elver Fishery. The elver is one of the most lucrative natural resources the Maritimes has to offer. From modest beginnings in the late 1980s, when two experimental licences resulted in a catch of 26 kg, fuelled largely by Asian demand, it’s reported that the Maritime elver fishery has expanded to an annual catch of roughly 10,000 kg worth an estimated CAD$40M in 2022.

Fisheries & Aboriginal and Treaty Rights. In recent years, Indigenous groups in both New Brunswick and Nova Scotia have taken steps to enter the elver fishery. While some have obtained commercial licenses, others rely on their Aboriginal and Treaty Rights, including, in some cases, a specific Treaty right to earn a moderate livelihood. But more than 20 years after the Supreme Court of Canada articulated the Treaty Right to a moderate livelihood in R .v Marshall and Marshall II, the parameters of the concept generally, including in the elver fishery specifically, remain far from clear. In its June 2021 report to the Senate Standing Committee on Fisheries and Oceans, “Examining the implementation of Indigenous commercial fishing rights,” DFO noted its work with “Mi’kmaw, Wolastoqey and Peskotomukati communities through the Rights Reconciliation Agreement negotiations process to implement this right [to a moderate livelihood]. These negotiations are considering access to multiple species, including elver.” The Rights Reconciliation Agreement is DFO’s latest effort to implement the Marshall decisions. DFO notes in its report it is considering making changes to the Elver fishery to facilitate more Indigenous access. To date, however, DFO has taken no substantive steps to do so.

The Wolastoqey N.B. Title Claim. A significant portion of the N.B. elver fishery is in areas subject to a 2020 Wolastoqey First Nation title claim that’s only in the beginning stages as it works through the courts. Holland v. Neqotkuk Maliset Nation is one of the first considerations by a court that potentially engages the Aboriginal and Treaty Rights and the asserted title of the Wolastoqey Nation following the filing of this title claim. It is, however, unlikely to be the last.

The Injunction Case

In Holland v. Neqotkuk Maliset Nation, the licensee held an exclusive commercial licence for elver fishing in various rivers in southeastern New Brunswick since the 1980’s. In April 2022, a large number of Indigenous fishers began catching elvers in the waters subject to the exclusive licence over a number of days. There were verbal confrontations between the licensee, the licensee’s fishers, and the Indigenous fishers, and while the licensee’s evidence suggested the potential for violence, none occurred. Representatives of both DFO and policing authorities attended, but took minimal action. According to the licensee, the Indigenous fishers verbally stated they were fishing elvers “not just to gain income but to force the Government of Canada to recognize their rights”, and “insisted they had indigenous rights to fish” and that the licensee “would eventually be pushed off” all the rivers they are licenced to fish. The Indigenous fishers were also clear: they didn’t intend to stop fishing, regardless of any court order. The licensee started a lawsuit against the Indigenous fishers claiming damages for the loss of the elvers they harvested, and in the meantime, applied to the Court for an interim injunction (a court order prohibiting a party from specified actions) against the Indigenous fishers to stop them from fishing elvers in the licensed waters pending resolution of its lawsuit. The Court followed a strict application of the three-part legal test for an injunction, requiring the licensee prove that:

• There’s a serious issued to be tried.
• Irreparable harm will result if the injunction isn’t granted.
• The balance of convenience favours the party seeking the injunction.

Ultimately, the Court agreed with the licensee – and issued the interim injunction. At no point in its analysis did the Court undertake an examination of Aboriginal or Treaty Rights or the implications of the filed title claim.

The Elver in the Room

Many anticipated the Court’s decision would address the implications of Aboriginal or Treaty Rights or the filed title claim. Why didn’t the Court do so?

No Evidence. The Indigenous parties submitted almost no evidence at all about anything, including any specific Aboriginal or Treaty Right, tendering only:

• A brief affidavit of the Lead Fisheries Negotiator and Research Coordinator for the Wolastoqey First Nations in New Brunswick speaking to the elver fishery and its value, and their “extensive discussions” with DFO regarding the commercial elver fishery.
• An affidavit attaching a map of the 2020 Wolastoqey First Nation title claim.

Stating that,“[no]evidence was proferred by the [Indigenous fishers] …, despite being provided the opportunity to do so, to establish they have a legal right to fish elvers in the same locations as the [licensee]” (at para. 45), the Court concluded that, while “mindful of the Indigenous fishers’ interest in the elvers fishery … they have not submitted any evidence to support their position with respect to their claim to the elvers fishery in this case.” (at para. 90). In Holland, the Indigenous fishers had the benefit of full legal counsel; in such a case, a court will typically constrain itself to the evidence legal counsel chooses to place before the court. Contrast this with the 2021 N.S. Supreme Court case, Canadian Committee for Sustainable Eel Fishery Inc. v. Francis, where the Court refused to issue an interim injunction against Indigenous fishers. There, the Indigenous fisher represented themself, without legal counsel; and, as a result of the COVID pandemic, the fisher didn’t have access to normal court assistance in preparing or presenting evidence. Still, based on their submissions, the Court found “it was clear” the unrepresented Indigenous fisher “was bringing to the attention of the Court … a credibly asserted s[ection] 35 [of the Constitution Act] right to fish”, noting the licensee’s evidence also offered indications of such a Right. Similarly, as in Holland, DFO wasn’t a named party in Francis. However, in Francis the Court directed that DFO be involved in the injunction hearing to assist the Court respecting “the licensing and harvesting of elvers, the non-Indigenous rights, and the potential s[ection] 35 issues concerning elver harvest” (at para. 33).  The Court took note that DFO supported the Indigenous fisher’s assertion that section 35 rights are the subject of management discussions by DFO concerning potential rights to harvest elvers. The Court in Francis ultimately refused to issue the injunction because its broad terms could criminalize activities beyond the licensee’s area, “as people are engaged in debate concerning a rights-based elver harvest” (at para. 61).

No Argument. The Court in Holland found, “[the Indigenous fishers] did not raise any argument or allegation … with respect to any constitutional or Treaty Rights issue.” Instead, their counsel seemed to focus on two unrelated prongs:

• No Irreparable Harm. The licensee could not prove that irreparable harm would result if the injunction wasn’t granted because any loss the licensee might suffer, if successful at the trial of the lawsuit, could be quantified and compensated, providing the licensee an adequate remedy. The Court rejected this argument, primarily because the nature of the elver fishery makes the calculation of compensation difficult.

• Deference to DFO & RCMP. The Court should defer to DFO and the RCMP to deal with the issue based on their “statutory discretion”. To this, the Court pointedly responded it “will not refuse to decide a matter or to exercise its jurisdiction on the basis that others such as DFO and/or the RCMP will ‘handle it’ or worse, because the [Indigenous fishers] advise the Court that they will refuse to follow an order of this Court” (at para. 94). Again, contrast this with the Francis There, the Court took note that a credible assertion of section 35 rights triggers the Crown’s duty to consult with Indigenous Peoples, and the lack of evidence of consultation in regard to the licence issued to the injunction applicant. Again, however, the fact the Indigenous fisher in Francis was unrepresented – and those in Holland were – is likely relevant; when a party is represented, a court is likely to also constrain itself to the arguments legal counsel chooses to place before it. 

No End. It’s important to remember that the injunction application isn’t the end of this dispute: the licensee’s underlying lawsuit remains to be adjudicated. A trial will offer the Indigenous fishers a more fulsome opportunity to raise an Aboriginal or Treaty Right as the basis for their right to fish elver. They may also be preparing to assert that, when the licensee’s licence is again issued (licences are issued on an annual basis), DFO must consult affected Indigenous Peoples in terms of how the licence potentially impacts their Aboriginal and Treaty Rights. Regardless, this won’t be the last word about the interaction of Aboriginal and Treaty Rights with the elver fishery – and other fisheries – in Atlantic Canada.

* McInnes Cooper acknowledges and thanks Graham Manderville, Student, for their contribution to this publication.

Please contact your McInnes Cooper lawyer or any member of our Aboriginal & Indigenous Law Team @ McInnes Cooper to discuss Aboriginal or Treaty Rights.

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