This case was heard in the Court of Queen’s Bench in New Brunswick.
Holland filed for an ex parte injunction against the Neqotkuk Maliseet Nation. An ex parte injunction is issued without notifying the Defendants. These orders specifically prohibited the Neqotkuk Maliseet Nation from engaging in threatening, coercing, harassing, or intimidating behaviors towards Holland and the fishers who harvest elvers on Holland’s licenced watercourses. The interim injunction also prevented the Defendants from encouraging others to harass or intimidate on their behalf.
These injunctions were the result of Holland's affidavit, which detailed incidents where more than 30 individuals, identified later as Maliseet Indigenous People from New Brunswick First Nations, interrupted the fishers on the Magaguadavic River. These individuals claimed a right to fish elvers in unceded territory. Holland’s fishery operations claimed to suffer “fear, inconvenience, and loss of income” due to the Defendants' actions.
The issue before the court was whether an injunction should be issued pending the disposition of the Plaintiffs' action. The test for an interim injunction, as set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney-General), requires the applicant to establish:
a. There is a serious question to be tried;
b. They will suffer irreparable harm if the injunction is not granted; and
c. A balance of convenience between the parties.
Holland established that the Maliseet Nation were fishing without a licence and that their conduct in the designated fishing areas interfered with Holland’s lawful right to earn a livelihood. In addition, they had disclosed their “intent” was to not just to gain income but to force the Government of Canada to recognize rights, making this a serious issue to be tried.
The argument for irreparable harm lies in the fact that the American eel, a matured elver, is currently under review as to whether it should be considered endangered under the federal Species at Risk Act as recommended by the Committee on the Status of Endangered Wildlife in Canada. Moreover, the court stated that Holland’s reputation and goodwill that has been developed over three decades with respect to the elvers fishery will be also irreparably harmed unless the conduct is restrained.
Finally, the question under the third branch of the test asks who will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a determination on the merits. Due to the environmental concerns, as well as the risk to the Plaintiff’s livelihood and reputation, the court determined that they would clearly suffer harm and inconvenience if the injunctive relief was refused.
Consequently, the court granted the Plaintiffs' motion for injunctive relief. The Defendants were enjoined from threatening, coercing, harassing, or intimidating the Plaintiffs and their fishers, and from harvesting elvers on the Plaintiffs' licenced watercourses. Additionally, the Defendants were ordered to pay the Plaintiffs $5,000 in costs due to their intention of not following the court's orders.
View the Decision on CanLII: 2022 NBQB 104 (CanLII) | Holland v Neqotkuk Maliseet Nation | CanLII
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