Tobique First Nation fishery mired in court battles, band council split
'It's a mess,' says sub-contractor after failing in court bid to continue fishing
The future of the Tobique First Nation's commercial fishery is up in the air after the latest courtroom battle between the band and the companies running its commercial fishery.
Last week, a Court of Queen's Bench judge stymied a last-minute attempt by Yarmouth Sea Products to continue fishing the band's licence as a subcontractor to a U.S. firm.
"We're not very pleased, obviously," said Gerard Doucet, the company's general manager.
"It's a mess."
The Yarmouth company was hired by Rhode Island-based Maritime Specialty Foods Inc. to fish for scallops and lobster on Tobique's commercial licence.
Doucet said Yarmouth Sea Products owns seven boats it used for the fishery, each of them employing a handful of people.
The dispute centres around Tobique's commercial fishery, which was established after the Supreme Court of Canada's 1999 Marshall decision that awarded commercial rights to First Nations.
Ottawa allocates fishing licences to bands, but the band governments can outsource the actual fishing to contractors, usually under agreements that see revenue flow back to the band.
In some cases, the contracts also see contractors hire band members.
'Troubling' business practices
Court filings in the case contain allegations of what one judge called "troubling" business practices by Maritime Specialty Foods and allegations of "wrongdoing and negligent performance" in the way the company ran the fishery contract.
The rulings also suggest the Tobique band council was divided over the contract with Marion.
Marion's initial agreement with Tobique began Jan. 1, 2013 and ran until Dec. 31, 2015.
It gave the company the power to run the band's fishery in the Bay of Fundy and off Grand Manan, and named Marion as the "fishery designate," which gave him the authority to deal with the federal Department of Fisheries and Oceans.
The new chief, meanwhile, argued Marion breached the contract by improperly reporting catches, causing the band to lose money due to "poor management" and selling the band's fishing boats to a company Marion controlled without telling the band about the potential conflict of interest.
Perley also said Marion refused to attend a band council meeting he called in December 2014 to discuss the fishery, instead "convening a competing meeting" with seven band councillors in Bangor, Me., the same day.
Attempted to undermine council, chief
In a November ruling, Justice William Grant wrote that Marion "wasted no time after the band council election in attempting to undermine the ability of the new council, and particularly, Chief Ross Perley, to conduct its business without outside interference."
By organizing the Bangor meeting, Marion "was clearly attempting to influence the band council's decision in respect to the management of the fishery for his, and his company's benefit.
"Not that trying to promote his interests is inherently wrong," Grant added, "but to do it in a duplicitous manner as he did, is clearly deserving of sanction."
In February 2015, six councillors, all of whom had attended the Maine meeting with Marion, voted to approve an extension of the contract to 2018.
But three months later, Perley cast the tie-breaking vote in a new band resolution that tried to sever Tobique's relationship with Marion.
That prompted Marion's first court action, in which Grant agreed the original contract was valid and issued an injunction forcing the band to honour the 2013-2015 agreement.
Contract extension thrown out
But in November, he put off Marion's request to force the band to respect the 2018 extension.
Grant called the sequence of events leading to the extension, including the Maine meeting, "troubling."
He also pointed out it was not properly recorded in band council minutes.
To protect its subcontractor role, Yarmouth Sea Products made a last-ditch attempt for another injunction last week before a different judge. The judge granted it, but on the condition both Yarmouth Sea Products and Maritime Specialty Foods make monthly payments to Tobique as their contract requires."
The companies said those conditions were too strict to meet, so there's no injunction in place. Marion's main lawsuit against Tobique to enforce the contract and give him control of the fishery is still before the courts.
Chief Perley couldn't be reached Monday to discuss how the band will run its fishery now that Marion and his company are no longer involved.
Doucet said Marion may appeal the conditions.
- A previous version of this story said a judge had quashed the injunction application by Yarmouth Sea Products. In fact, the judge granted it, but he attached conditions that the company and Maritime Speciality Foods refused to accept. As a result the injunction is not in effect.Jan 08, 2016 1:03 PM AT