Put rules in writing to fix Maritime elver fishery's enforcement problem, say businesses

Representatives of the $45-million Maritime elver fishery are calling on the federal government to implement enforceable regulations for moderate livelihood fishing by Indigenous people.

They told a Senate committee in Ottawa Thursday the failure to define or regulate moderate livelihood rights by the Department of Fisheries and Oceans (DFO) is one reason for the uncontrolled harvest of baby eels on dozens of rivers in Nova Scotia and New Brunswick.

"Among these poachers are First Nations unwilling to work with DFO to access the fishery under a banner of moderate livelihood rights, backed by organized crime, specifically biker gangs and foreign smuggling networks. Our once peaceful industry has recently faced violent disruption," said Genna Carey, a commercial licence holder speaking on behalf of the Canadian Committee for a Sustainable Eel Fishery, an industry group.

The appearance comes as Fisheries Minister Diane Lebouthillier considers cancelling the upcoming season — an acknowledgement that once again DFO is unable to control the fishery.

The department was forced to close it prematurely in 2020 and 2023 after hundreds of poachers flooded rivers in Nova Scotia and New Brunswick, lured by prices as high as $5,000 a kilogram.

Some Indigenous fishermen said they were asserting their treaty right to catch elvers and they did not need DFO approval. The department still considered their actions poaching.

The department believed the total amount of unauthorized harvesting by both Indigenous and non-Indigenous fishers was equal to, if not greater than, the legal catch. About 10 tonnes of the tiny translucent baby eels — known as elvers or glass eels — are legally harvested during their annual migration into Maritime rivers. They are shipped live to China where they are grown for food.

In 2022, the fishery was worth $47 million, shared between eight commercial licence holders and some Mi'kmaw and Wolastoqey communities that operated with DFO approval.

But other First Nations launched their own elver fisheries without DFO consent, claiming they do need government approval, despite a Supreme Court ruling to the contrary.

The landmark Marshall cases affirmed the treaty right to earn a moderate living from fishing, but the fishery should be regulated by the federal and provincial governments.

Commercial dealer Mitchell Feigenbaum says the department must put its requirements in writing rather than relying on negotiation.

"Those efforts rarely bear fruit. At which point the government just leaves the status quo in place. First Nation individuals asserting their treaty rights go out and fish. If DFO tries to enforce the law, the courts and the prosecutors say, 'Well, there's no regulation that says they can't.' So DFO simply needs to make a regulation saying, 'Here's what the dos and don'ts are, and they need to apply it to all First Nations,'" he told senators.

'No such policy'

Commercial licence holders have said DFO officials told them at a Jan 10 meeting that the Public Prosecution Service of Canada (PPSC) has informed the department it will not prosecute these Indigenous fishery cases.

"We have no such policy. The PPSC's role is to prosecute federal offences that are brought forward by investigative agencies," spokesperson Nathalie Houle told CBC News.

Decisions are made on a case-by-case basis, she said.

DFO says fisheries officers arrested 107 individuals for violations of the Fisheries Act and regulations related to unauthorized elver harvesting last year, and completed over 370 seizures of gear and assets — including 14 vehicles and vessels.

"Fisheries and Oceans Canada disagrees with the characterization of comments attributed to our representatives at a recent meeting with members of the elver industry," DFO spokesperson Kathryn Hallett told CBC in a statement.

"To date, a total of 60 charges have been laid related to unauthorized harvest, sale and/or export of elver during the 2023 season, and conservation and protection [officers are] working to conclude a number of ongoing active investigations," Hallett said.

Mi'kmaw leaders oppose unilateral shutdown

The Assembly of Nova Scotia Mi'kmaw Chiefs has led negotiations with DFO on the elver fishery for its members. The assembly did not respond to a request for comment on the Senate appearance.

In December, the assembly submitted its 2024 elver fishery plan to the department, including a proposed total allowable catch of 3,600 kilograms, over one third of the total Maritime quota. It would be shared by eight Nova Scotia First Nations, fished by 527 to 780 people.

It's unclear if a closure will be defied by Mi'kmaw harvesters.

"We feel that [Lebouthillier] doesn't have the ability to make a unilateral decision to do that without our input. You know, we're trying to have a nation-and-nation relationship with the government, but we're not. It just seems one sided right now," fisheries co-lead for the assembly, Gerald Toney, told CBC News last week.

DFO declined to comment Thursday, instead referring to a Feb. 13 statement issued after CBC revealed the minister had told commercial licence holders and Indigenous stakeholders she intended to cancel the season.

In it, DFO said it will consider feedback before announcing a final decision.

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