'Anarchy will reign' if Indigenous fishing rights in Maritimes aren't settled, says former DFO official

A former senior Fisheries and Oceans (DFO) official says clarity on Indigenous fishing rights in the Maritimes is needed from the department and the courts or "anarchy will reign."

"The frustrations can be mitigated by clearly communicating the rules, having an orderly and regulated fishery, and then providing an adequate monitoring and compliance presence to effectively implement the rules. While that sounds simple, it is not. And while patience is required, action is also required before the situation explodes or stocks are harmed," Morley Knight told the parliamentary standing committee on Fisheries and Oceans in Ottawa on Monday.

The committee is examining illegal, unregulated and unreported fishing.

Among his roles, Knight was in charge of DFO's conservation and protection branch in Atlantic Canada, responsible for enforcing federal fishing rules.

Indigenous fishing of baby eels — also called elvers — and lobster without DFO authorization has surfaced repeatedly during the committee's hearings.

Some Indigenous fishers assert they do not need DFO approval to pursue their treaty right to fish for a moderate livelihood.

The right was recognized by the Supreme Court of Canada in rulings that also affirmed federal and provincial governments have the authority to regulate those fisheries.

'Courts may have to clarify'

Knight told MPs Indigenous fishing rights must be settled once and for all.

"While there is a risk in that and one side or the other will not like the outcome. The courts may have to be used to settle or clarify the rights of Indigenous people to fish. Without that, anarchy will reign and there can be no effective compliance program and the risk is greater than what the courts may decide," Knight told MPs.

The ambiguity has led to increasing tension in Nova Scotia over lobster and elver fishing not authorized by federal officials.

Tension over two fisheries

In the case of lobster, commercial harvester have opposed fisheries aimed at providing a moderate livelihood for Indigenous harvesters that occur outside of the commercial season. Some First Nations have reached understandings with DFO to permit treaty-rights fisheries, other First Nations in the province have not.

There were also loud complaints by commercial fishermen that a DFO licenced Indigenous food, social and ceremonial fishery — which does not allow the catch to be sold — has been used to cloak an outright commercial fishery.

In the case of elvers, a flood of unauthorized fishermen arrived on rivers in Nova Scotia and New Brunswick in the spring of 2023 eager to catch the tiny, translucent eels that can sell for up to $5,000 a kilogram. Almost all are shipped live to Asia where they are grown for food

The influx overwhelmed DFO's ability to manage the fishery.

The government-authorized elver fishery — shared between eight commercial licence-holders and some Mi'kmaw and Wolastoqey communities — was shut down amid violence and threats on the rivers.

However, unauthorized harvesting continued, carried out by both Indigenous and non-Indigenous people.

'There needs to be clear expectations'

"DFO needs a clear plan that is communicated to all parties. There needs to be clear expectations of what is permitted and what is not permitted," Knight said Monday.

"DFO needs to execute the plan and arrest those who don't comply. It's as simple as that. And after a very small number of arrests and seizures are made, compliance will occur," he said.

For its part, DFO says it has made arrests and seizures this year in the disputed lobster and elver fisheries.

On the broader issue of illegal fishing, Knight urged dockside monitoring for the lobster industry, more resources for the conservation and protection branch and certification of catches to prove seafood was legally caught and recorded.

CBC has reached out to DFO and the Assembly of Nova Scotia Mi'kmaw Chiefs. The responses will be reported when received.