Defense lawyer says more detail is needed in case against Indigenous fishers

The case of a commercial fisher who's suing Indigenous groups continued in Saint John on Tuesday.

The case began in April, when Mary Ann Holland applied to the Court of Queen's Bench for an injunction to stop Indigenous fishers from catching elvers in an are where she has an exclusive licence to fish. The lawsuit named Neqotkuk, also known as Tobique First Nation, Sitansisk Wolastoquiyik, or St. Mary's First Nation, Welamukotok, or Oromocto First Nation, and Woodstock First Nation, along with the four chiefs and other unknown individuals.

Holland operates the fishery, which is located in southwestern New Brunswick, under Brunswick Aquaculture and Alder Seafood, who are co-plaintiffs.

Today's hearing was held to discuss a motion brought forward by the defence to strike the plaintiff's statement of claim. The defendants' lawyer, Nick Kennedy, argued the claim should be struck because it does not specify how the chiefs named were involved in the allegedly illegal fishing.

The chiefs are named in the suit, the plaintiff's lawyer said in court Tuesday, because when the fishers were confronted they refused to identify themselves and said the chiefs authorized their fishing.

Barry Morrison argued that the chief's authorization of the fishing makes them liable for it.

Kennedy said this notion has caused his clients a great deal of stress.

"This idea that [chiefs] can authorize something then people are going to jump up and run out and do it, is based on, frankly, dated, offensive views to how these communities are organized," he said.

Morrison said Kennedy's argument grants Indigenous communities special exemptions.

"Saying that they have the ability to do things, like that, that you couldn't do, I couldn't do, corporations couldn't do. That they're a special status, and they can do that thing with impunity. I don't believe that to be correct," Morrison said.

Delay granted

Citing the fact that the elver fishing season is now over, the judge granted the plaintiff's lawyer 30 days to submit an amended statement of claim. The judge asked Morrison to address the issue of authorization in that amended statement.

The lawsuit also alleges that Indigenous fishers physically interfered with Holland's employees. Indigenous fishers positioned their nets in such a way that they "basically forced them out of their position," Morrison said.

In April, an injunction ordered the Indigenous groups to cease fishing and to stop threatening, coercing, harassing or intimidating the plaintiff and her fishers.

The defence argued that more detail is needed in a statement of claim to make clear who is alleged to have done what. In much of the statement of claim, the defendants are simply called the defendants, not a specific chief or community.

"They've asserted no specific facts against each of the defendants," Kennedy said. "And so it's impossible to know from this what each individual is alleged to have done."

Kennedy said the plaintiffs are waiting for discovery – the period in a civil case when both sides must disclose their evidence – to get a better understanding of who is truly liable.

"It's not my client's problem that [the plaintiffs] don't know who to sue," Kennedy said.

Morrison said this is not a strategy, simply the facts of the matter.

"We were asked about the identity of the specific people who were acting in this terrible fashion. We say candidly, we can't provide the details because they refuse to identify themselves and we'll have to wait for discovery of documents," he said.