A judge has thrown out a contempt-of-court accusation against several New Brunswick First Nations and their chiefs in an ongoing elver fishery dispute.

The decision, read by Justice Arthur Doyle in Saint John Court of Kings Bench on Monday, is related to a larger lawsuit filed by Mary Ann Holland of Brunswick Aquaculture and Alder Seafood, where she alleges Indigenous fishers were “poaching” young American eels in her licensed waterways and harassing her employees.

In 2022, a judge ordered First Nations members to stop fishing in the the waterways designated to Holland by the Department of Fisheries and Oceans until the case is resolved.

This spring, Holland said the First Nations are defying that order. She said they continued to fish there, specifically in the Chamcook Stream near Saint. Andrews and disrupt her employees’ equipment. 

After hearing testimony from Holland and two chiefs, Doyle said he does not think there’s enough evidence to support that accusation.

Holland’s evidence included a conversation with two unidentified people who claimed the chief of one of the First Nations said they’re allowed to fish there.

In their testimony, Chief Alan Polchies of Sitansisk and Chief Ross Perley of Neqotkuk denied encouraging or telling people to break the judge’s order. They testified that they’ve had meetings, posted notices and communicated door-to-door with people, urging them to fish in designated areas and informing them of the legal consequences of going against the judge’s ruling.

“I accept the evidence that Chief Alan Polchies and Chief Ross Perley as credible and reliable,” Doyle said. “In my view, there is no credible and reliable evidence … indicating that the unauthorized fishers in this case are members of the defendant First Nation communities.”

The decision comes two days after the Department of Fisheries and Oceans halted the elver fishery in Nova Scotia and New Brunswick for 45 days over “conservation and safety concerns.” No one is allowed to fish elvers now, including Wolastoqey who have received a commercial-communal elver licence this year. 

In 2022, elvers sold for $5,000 per kilogram. The Maritime fishery is worth about $40 million a year. The live eels are exported to Asia, where they’re grown to market size.

40 people on the river

Holland’s lawsuit is against four First Nations: Neqotkuk (formerly Tobique), Sitansisk (formerly St. Mary’s), Welamukotok (formerly Oromocto), and Woodstock First Nation, along with their chiefs and some unnamed individuals. 

Holland said she has been fishing elvers since the 1980s, and has “exclusive rights” to fish elvers in a number of waterways in southwest New Brunswick, including the Magaguadavic River near Saint George and in the St. Croix area.

In 2022, she applied for an injunction to stop the people she’s suing from allegedly fishing her waterways, and threatening and intimidating her employees, until the case is resolved. Justice Danys Delaquis granted the injunction.

The elver season began in late March. On April 3, Holland filed an affidavit saying approximately 40 people, whom she identified as Indigenous and not her employees, were fishing for elvers on the river.

She said two unidentified people sitting in a car on the shore told her they were from Sitansisk and they had a meeting where the chief said they can fish wherever they wanted in Charlotte County.

Holland said that she did not ask the two individual to present her with identification confirming that they’re from the Sitansisk First Nation. She said she believed the people fishing there were Indigenous because they looked Indigenous, but on cross examination agreed that she is not an expert in the field of identifying people’s backgrounds just from looking at them.

She also testified that she didn’t consider the possibility that the two people she spoke to were mistaken or lying.

Doyle said he believes there were people on the river and that they were harming her business by being there, but there’s no proof they were from the named First Nations.

“She presented as an honest witness,” Doyle said. “She answered questions in a straightforward manner … I do however have concerns about the reliability of the evidence from the two unidentified people.”

Doyle said on the flip side, the evidence from Perley and Polchies was reliable.

The chiefs testified they communicated the rules under the license and the judge’s ruling effectively, but have little control over what individual members decide to do.

They also said there are many other Indigenous communities in the province, and in Maine as well, and the people on the river could be from any number of them.

Doyle ordered Holland to pay $5,000 in costs to the First Nations.

He stressed multiple times that this decision is based only on the evidence before him as of right now, and he is not making a final ruling on Holland’s original lawsuit, which is still in progress.