Court upholds DFO transfer of commercial elver quota to Maritime First Nations

Commercial licence holders in the lucrative Maritime baby eel or elver fishery have lost their legal bid to overturn a federal government decision that reduced their quota and gave it to First Nations.

The Federal Court of Canada ruled the process used by the minister of Fisheries and Oceans in 2022 was fair, reasonable and within ministerial discretion to manage the fishery.

"It is very much a decision based on policy and public interest considerations consistent with the statutory scheme of the Fisheries Act, albeit with an immediate private impact on licence holders," Justice Elizabeth Walker said in an Aug. 28 decision.

The case was being closely watched because the quota was taken without compensation to the licence holders.

The Department of Fisheries and Oceans abandoned negotiations to buy out existing licence holders — the process normally used to broaden Indigenous participation in commercial fisheries without increasing pressure on fish stocks.

"We're disappointed that the federal court did not take the opportunity to reinforce the integrity of the limited entry commercial fishery where you need to have someone exit for someone to enter. And the way that's been done has been through a willing buyer, willing seller model and unfortunately the court refused to do that," said Michel Samson, a lawyer representing Wine Harbour Fisheries, one of the licence holders who sued in federal court.

Significant ruling

"This sets the green light for DFO to be able to take away lobster traps, to be able to cut crab quota, cut halibut quota, cut red fish quota without compensation. This is what this decision has meant."

Three of eight commercial licence holders applied to the Federal Court of Canada seeking to overturn the transfer — not because they objected to First Nations participation — but because DFO had abandoned willing buyer, willing seller process.

They argued the valuation of their commercial licences used by DFO was kept from them and then minister Joyce Murray reneged on ministerial commitments to continue to use willing buyer, willing seller.

Walker ruled the minister was not bound by vague assurances in a press release and that she took into account all factors she needed to in giving First Nations quota.

First Nations shared $3M in 2022

In 2022,  Murray cut the commercial elver quota by 14 per cent or 1,200 kilograms and gave half to Indigenous bands in Nova Scotia and New Brunswick. The rest went unallocated.

The transfer was part of the Trudeau government's reconciliation agenda and a way to implement the Mi'kmaw right to earn a moderate livelihood from fishing.

DFO documents show Mi'kmaw and Wolastoqey communities earned nearly $3 million in 2022 with Acadia, Annapolis Valley and Bear River First Nations in Nova Scotia taking in $1.9 million, or $31,000 per harvester. Six New Brunswick communities — Madawaska Maliseet, Tobique, Woodstock, Kingsclear, St. Mary's, and Oromocto First Nations shared $957,467, or $12,000 for each of 80 harvesters.

Appeal possible, second law suit to continue

Two of the commercial licence holders say an appeal is being considered and a separate Federal Court judicial review for an identical quota transfer in 2023 will be pursued.

Brian Giroux of Shelburne Elver Group says federal court ruling "affirms or reaffirms that the minister of Fisheries and Oceans has absolute dictatorship powers in this country. They don't have to talk to you, they don't have to treat you in a fair and reasonable manner."

"She [Justice Walker] ruled correctly that it may have been a fair and reasonable process within a bad system." says Giroux.

In 2023, the department again cut the commercial quota by 14 per and this time the whole 1,200-kilogram share went to the same First Nations in Nova Scotia and New Brunswick.

But the fishery had to be shut down as unauthorized Indigenous and non-Indigenous poachers flooded into the area to cash in on the lucrative fishery.

"It didn't lead to reconciliation this spring. It led to chaos," said Samson.