Quota transfer to Maritime First Nations prompts Federal Court challenge

Commercial licence holders in the lucrative Maritime baby eel fishery have launched a Federal Court challenge over the decision to take 14 per cent of their quota and give it to Indigenous groups in 2022.

The quota of baby eels, or elvers, was worth millions of dollars.

It was reallocated without compensation to fulfil First Nation treaty rights to fish.

The elver redistribution raises broader questions about what licence holders in other commercial fisheries can expect if their allocations are cut in favour of First Nations.

Fisheries and Oceans Canada (DFO) said it was an interim cut, but the department notified the industry in January it proposed to reallocate 14 per cent of the quota without compensation again in 2023.

"We at least deserve to be reasonably treated," said Brian Giroux, a member of the board of directors for the Shelburne Elver Group.

Shelburne Elver was one of three commercial licence holders in the Federal Court of Canada last week seeking to set aside the 2022 redistribution ordered by the minister of fisheries and oceans.

"It's expropriation without compensation," Giroux said outside the courtroom.

DFO said it was entitled to take approximately 1,200 kilograms of quota from the eight commercial licence holders to increase Mi'kmaw participation in the fishery. It said the licence holders are owed nothing.

Lucrative fishery

Elvers are netted in Nova Scotia and New Brunswick rivers each spring and shipped to Asia, where they are grown for food.

Elvers sold for $5,000 a kilogram in 2022.

Each licence holder is given exclusive right to harvest on assigned rivers.

In 2020, DFO was forced to shut down the entire Maritime fishery after a series of riverside confrontations between department officers and Mi'kmaq netting elvers on rivers.

The Wolastoqey in New Brunswick were given 200 kilograms and the Kwilmu'kw Maw-klusuaqn Negotiation Office (KMKNO) in Nova Scotia was given 400 kilograms in 2022.

Giroux and other licence holders offered to sell their licences back to DFO — a process known as willing-buyer, willing-seller. It has long been used to integrate Mi'kmaq into commercial fisheries without increasing pressure on a given species.

DFO rejected offer

DFO rejected the offer, claiming licence holders wanted too much. It reallocated the quota instead.

Giroux said the process was rushed, DFO did not consider its offer in good faith, there was no negotiation, and this year is a repeat.

"They didn't notify us, they didn't contact [us]," he said. "They didn't reach out at all to say, 'Look, we're interested in buying and selling.' No, nothing at all until the 11th hour yet again."

Justice Department lawyers said DFO is not obliged to compensate licence holders even if federal fisheries ministers have repeatedly committed to the process.

Former fisheries minister Bernadette Jordan said willing-buyer willing-seller would be used to provide access to First Nations.

Her successor, Joyce Murray, made similar commitments, telling Parliament last April: "We are working very hard to have a willing-buyer, willing-seller process so that those transactions can be appropriate for everyone."

In its filing in the elver case, the Crown said: "The minister is not bound by any prior ministerial statements or policy regarding the manner in which increased First Nations' access may be provided or the intention to provide compensation to licence holders."

Michel Samson, who represents another commercial elver licence holder in the case, said the federal legal argument should send shock waves in other fisheries.

"What we're seeing in this case is that DFO is saying that what the minister, both current and former, have said around willing-buyer, willing-seller means nothing.

"That is not a policy that DFO feels that they're obligated to follow, which they clearly didn't do last season with the other licence holders," he said.

DFO's preferred approach

Samson said they are planning to do the same thing this year "by cutting quota without providing compensation. So the message to commercial licence holders, whether it's lobster, crab, halibut or anything else, [is] you're next."

In a statement, DFO spokesperson Lauren Sankey said willing-buyer willing-seller remains the department's preferred approach to advancing First Nation treaty rights to fish.

"DFO acknowledges that a lack of willing sellers at market value cannot be an impediment to implementing rights-based fishing," Sankey said.

"The elver fishery is unique. In certain and specific cases, such as elver, DFO has taken alternative approaches to implement fishing rights. The 2022 elver decision was an interim approach, and following consultations with First Nations and commercial licence holders, a decision for the 2023 season is forthcoming."

The Assembly of Nova Scotia Mi'kmaw Chiefs did not respond to a request for comment for this story.