Court order halts use of fish-killing Noxfish II until Aug 17 hearing

·7 min read

Cottage owners along the Miramichi Lake, near Napadogan, secured a last-minute reprieve against the Working Group on Tuesday, Aug. 9.

The Court of Queen's Bench in Woodstock granted an ex-parte order to Patricia (Trish) Foster, Kaitlyn (Katie) Harvey, and Daniel Houghton, who own properties along the lakeshore.

The court order prevents Noxfish II from being used to kill all fish in the lake. The Working Group, which includes the Atlantic Salmon Federation, the North Shore Micmac Council, and others, notified cottage owners on Tuesday, Aug. 9, that they would treat the lake on Wednesday, Aug. 10.

The move is meant to eradicate smallmouth bass, considered an invasive species. The Working Group's project garnered the full support of Health Canada, the federal Department of Fisheries and Oceans, and the New Brunswick Environment and Natural Resources departments.

The court order, signed by Justice Terrance J. Morrison late Tuesday afternoon, prevents the Working Group and anyone else from "taking any action to deposit Nonfish (sic.) Fish Toxicant II or any other substance for the purpose of eradicating Smallmouth Bass from Miramichi Lake, Lake Brook, and the Southwest Miramichi River or any action to facilitate the same until the previously filed notice of motion has been considered by the court."

The papers were served to the North Shore Micmac District Council just after 9 a.m. Wednesday morning.

The Court of Queen's Bench will hear the case on Aug. 17 at 1:30 in Woodstock.

Cottage owners filed for an injunction on Aug. 2, then asked for an ex-parte hearing (a court hearing held without notifying the other party) to request a cease and desist order. They were worried the lake might be treated before a judge could hear their case.

"I'm tired. I'm two and a half years worth of tired," said cottage owner Trish Foster when reached by phone after the order was issued. Foster said that while she and other cottage owners secured the court-ordered delay, they couldn't have done that if it wasn't for the ongoing efforts of the Indigenous community, especially Andrea Polchies, who cottage owners credit for preventing the planned fish kill in 2021.

"I'm feeling better about things, but there is no question that while we fought all the battles that were to fight if the mothers and grandmothers hadn't come last year, it would have been a done deal then. Their persistence and bravery, and dedication have made all the difference."

Andrea Polchies, who represents the group Connecting to the Land, has been at Miramichi Lake for the past two weeks. She and others were ready to sleep in canoes and kayaks to prevent the fish kill.

"We were all elated at the news," said Polchies, who was joined by nearly two-dozen protestors at the lake this week.

Working Group spokesperson, Neville Crabbe, executive director of communication for the ASF, confirmed receipt of the court order in a statement Wednesday afternoon, Aug. 10.

"The Order prohibits our project from proceeding as scheduled, which is a project aimed at eradicating an invasive aquatic species (smallmouth bass) through the application of rotenone. The project was developed over several years, was extensively reviewed, and has been authorized by the Government of New Brunswick and Government of Canada," Crabbe said.

He said the Working Group, unaware of the emergency hearing, could not present arguments or evidence.

"As a result, the Working Group was forced to dismiss more than 130 personnel from around the world who were staged in Fredericton, ready to complete our legal conservation project," Crabbe said.

Describing the project as "Indigenous-led," Crabbe said the court action named the North Shore Micmac District Council as defendants.

Opponents successfully blocked last summer's attempt to add rotenone to Miramichi Lake by continuously remaining on the lake and forcing the Working Group to postpone its plans until this year.

Unlike last year, when the Working Group gave cottage owners and others a specific date for the planned project, it promised only 24-hour notice this year.

Foster said she and other cottage owners are ready to fight this in court.

"We'll be addressing this on their violation of our property rights," she explained.

"On the 17th, a judge will look at the injunction and the five inches of documents we've submitted and decide whether this requires further investigation. We want someone to look at this as an eradication project because the documents we've accessed through Freedom of Information indicate that eradication isn't possible at this stage, and that the DFO doesn't want to be involved; doesn't want to be the proponents because it sets a dangerous precedent across the country, one they can't afford."

Two letters from the New Brunswick Aboriginal People's Council and the Maritime Aboriginal Aquatic Resources Secretariat (MAARS) outlined Indigenous concerns to DFO officials in 2020.

The groups expressed their disapproval of the project in an 18-page document that cited previous news stories, studies, and federal regulatory acts.

"We have documented the presence of smallmouth bass outside the boundaries described in the application; as such, we cannot support the notion that smallmouth bass is solely restricted to the proposed treatment area because we know it to be false. With this knowledge, we believe that the treatments will not, and cannot, achieve eradication because smallmouth bass are already broadly distributed through the watershed... we remain opposed to the proposal application."

Foster and other cottage owners want the Working Group to look at alternatives.

"Why wouldn't they continue with population control methods? Barriers? Nets? Electrofishing. The numbers of bass were minuscule when they were doing that," said Foster.

The Working Group's Environmental Impact Assessment documentation filed with the province in Sept. 2020 noted that after treatment, they would conduct a five-year monitoring schedule, which would require federal and provincial funding.

"The cost of treatment, deactivation and associated equipment is approximately $600,000; the Working Group has collectively committed 50 per cent of this cost ($300,000) in private funding, and we have submitted an official request to NB DNR for a 50 per cent contribution ($300,000). For the long-term ecological monitoring to be carried out by Indigenous biologists and technicians, we have submitted an official request to DFO to fund the monitoring program for five years in the amount of $906,000," the Working Group explained in the document.

Miramichi Lake cottage owners believe the Working Group's push to treat the issue of smallmouth bass with toxins instead of other measures comes down to money.

"It's all about answering to their donors. It's all about the Salmon Federation donors," said Foster.

"We believe they need to be seen as taking some sort of action (to save the salmon) because they can't control clear-cutting, spraying, or climate change. They can't control predation; they can't control the striped bass; they can't control any of that, so they have to be seen as doing something, but this issue is so low on the scale of things impacting salmon. The Miramichi River (system) no longer serves as a habitat for salmon. They like fast water, deep water, and cold water, and this river is now low and slow and warm. Everybody knows that. No one can deny it."

Crabbe said the Working Group stands by the project because smallmouth bass threatens the native ecosystem of the Miramichi, including Atlantic salmon, as well as the cultural identity and economy of the region.

"The Working Group intends to vigorously oppose the cottage owners' request for the injunction to be extended at a hearing scheduled for August 17th," Crabbe said in the statement.

— With files from Theresa Blackburn, River Valley Sun

Jim Dumville, Local Journalism Initiative Reporter, River Valley Sun