Peter Marion continues fight to control Tobique fishery

Despite a legal setback, an American businessman will continue his fight in a Saint John courtroom for control of Tobique First Nation’s commercial fishery.

Tobique's commercial scallop and lobster fishery was established in the wake of a 1999 Supreme Court decision

(Indigenous and Northern Affairs Canada)

Despite a legal setback, an American businessman will continue his fight in a Saint John courtroom for control of Tobique First Nation's commercial fishery.

Peter Marion, who owns Rhode Island company Maritime Speciality Foods Inc., is asking a Court of Queen's Bench judge to rule he still has a valid contract to continuing running the the band's fishery in the Bay of Fundy.

The contract would run until August 2018, but the two sides in the dispute disagree on whether it's valid. Marion's original contract expired on the last day of 2015, along with a court injunction that forced the band to honour that deal.

Tobique Chief Ross Perley says in his statement of defence that Marion offered "financial inducements" to seven band councillors to attend meetings in Maine that paved the way for them to extend in Marion's contract.

Tobique First Nation Chief Ross Perley says the band is in control of its fishery now. (CBC)
Perley says in court filings Marion met with those councillors in Bangor, Maine, where they drew up Marion's new contract — an act that wasn't legally binding, he argues, because it didn't take place at a properly convened band council meeting.

He argues that by paying councillors to skip a band council meeting being held at the same time, Marion was voiding his contract.

But Vaughn Nicholas Sr., one of the councillors who went to Bangor, told CBC News the so-called "inducements" only covered expenses.

"We got $200 for our gas," Nicholas said. "They paid for our gas and meals to go down to Bangor … and nothing beyond that. And he paid for the rooms."

The fight is over Tobique's commercial scallop and lobster fishery, established in the wake of the 1999 Supreme Court of Canada Marshall decision.

None of the allegations from either side in the dispute have been proven in court. Marion has so far turned down interview requests from CBC News.

Injunction granted

Another company fishing with Tobique's licence, Yartmouth Sea Products, tried to get an injunction in late December to force the band to honour Marion's contract.

The judge agreed, but on the condition Marion's company and Yarmouth continue making monthly payments to the band as the contract requires.

First Nations fishermen are working with new rules under the 1999 Supreme Court of Canada decision after Donald Marshall. (CBC)
They refused, arguing it would be unfair to force them to make payments while the contract was in legal limbo. That means there's no injunction in place and Tobique's fishery is in limbo.

Perley said pending the outcome of Marion's lawsuit, he and the band council are in charge and will try to get the fishery up and running for the coming season.

"Right now the band is back in control of the fishery, and we're working collectively to manage our licences to achieve the objective of maximum community benefit," he told CBC News.

In a letter filed by the band, federal fisheries official, Kevin Fram, pegs "the net economic value alone" of Tobique's fishery at more than $1 million a year, not including spin-offs like band members getting jobs in the fishery.

But, Perley told CBC News, with Marion and Maritime Specialty Foods running the fishery, the band was only getting $25,000 a month in revenue.

"My goal is for the community to benefit from our commercial fisheries," Perley said. "That's the whole concept of us being able to fish, for people to get something to eat, to make a living from a job, or to get some kind of dividend."

Band-run fishing lost millions

Nicholas, a long-time band councillor, says before Marion took over, a band-run fishing company had been losing millions of dollars and missed federal tax payment deadlines.

He said Marion's monthly payments of $25,000 starting in 2013 represented Tobique's first fishery revenue since the Marshall decision.

That was the first time the band got money, was when Peter Marion took over.- VAughn Nicholas Sr., Tobique councillor

"That was the first time the band got money, was when Peter Marion took over," he said.

In Marion's statement of claim, he quotes a previous band chief, Brenda Perley, who says Marion turned a $500,000 loss in the fishery to a $200,000 profit in his first year running it. In an email filed in court, Marion describes the Tobique fishery as "just a real mess" when he took over.

Marion's company signed its original three-year contract with Tobique to run the fishery from January 2013 to December 2015.

New band council elected

Perley was elected chief in November 2014, along with several new band councillors.

"The former [band] government did a sign a contract with him," Perley said. "But I felt he didn't live up to a couple of terms of the original contract. That's why I made some moves to try to change management."

Perley says in the statement of defence that before the November 2014 band election, Marion had been late reporting catch totals, which prompted Ottawa to eliminate $350,000 in funding the and was getting to develop its fishing business.

 I felt he didn't live up to a couple of terms of the original contract.- Ross Perley, Tobique First Nation Chief

But Marion says Ross Perley and his allies on the new council "wrongfully interfered with and attempted to terminate" the contract, including by trying to influence who received licences and permits to fish.

Under the 2013-15 contract, Marion was the community's fishery authority, meaning he had power over the licences and was the point of contact for the federal government.

The crux of the legal fight over Perley's attempt to take that power away centres on whether several band council meetings were legitimate.

Marion says in his court filing that a band council resolution passed by Perley and his allies that took Marion's power away and gave it to the chief "is not a valid resolution, was not passed at a duly convened meeting, and is contrary to what was actually decided at the meeting."

Perley says the meeting was valid, because under federal regulations, only five band councillors are required for quorum at a council meeting.

Perley and his fellow councillors are arguing in turn that Marion's extension is invalid because it was drawn up at one of the meetings in Bangor, not at a duly convened council meeting.

Marion was also invited to the December 2014 band council meeting, and by refusing to attend and inviting councillors to Bangor, he was breaking the contract, Perley argues.

But Nicholas says Marion invited the entire chief and council to Bangor, and Perley only scheduled the council meeting back at Tobique after seven councillors had already accepted Marion's invitation to Maine.

"We had good intentions, the seven of us," Nicholas said. He said there was no vote on Marion's contract in Bangor — "all it was was information" — with the contract properly approved later.

On Friday, the lawyer for Tobique First Nation withdrew a motion for summary judgment to have Marion's lawsuit thrown out. No date has been set for when the case will go to trial.

About the Author

Jacques Poitras

Provincial Affairs reporter

Jacques Poitras has been CBC's provincial affairs reporter in New Brunswick since 2000. Raised in Moncton, he also produces the CBC political podcast Spin Reduxit.