Nova Scotia Supreme Court dismisses injunction sought by commercial elver industry

Commercial elver fishers in the Maritimes suffered a legal setback Friday.

A Nova Scotia Supreme Court judge dismissed their application for a temporary injunction at the site of the longest running scientific study of the baby eels in North America.

Justice Diane Rowe was concerned about potential infringement of First Nation fishing rights.

"The terms of this order are very broad and may criminalize activities that take place outside the localized area of the study, " Rowe said via teleconference.

Illegal Indigenous fishing alleged

An industry non-profit corporation called the Canadian Committee for a Sustainable Eel Fishery named Acadia Band member Cory Francis in its application. It claims he and others not named risked "irreparable harm" to their research on elvers by illegal elver fishing and acts of intimidation on the East River, near Chester, N.S.

The group argued Indigenous fishing rights were not engaged in the case because elvers are not recognized as a food fish and the Department of Fisheries and Oceans recently prohibited their catch under food, social and ceremonial licences it issued for 2021.

"This industry has not been recognized as one associated with Aboriginal rights," committee lawyer Sarah Shiels told the court.

A win for self-represented Mi'kmaw fisherman

Rowe was not persuaded.

The Bridgewater-based judge questioned the evidence behind the claim and said unresolved Indigenous fishing rights were the subject of ongoing debate and discussion.

The Department of Fisheries and Oceans also opposed the application.

"I also note that DFO did support Mr. Francis's assertion that Section 35 Rights [the section of Canada's Constitution that affirms Indigenous rights] are the subject of management discussions by DFO concerning potential rights to harvest elvers," Rowe said.

She also said she was not prepared to approve an injunction that police and DFO would have to enforce without hearing "full submissions" from the agencies.

"It was great to see Justice Rowe's decision today," said Francis.

Francis, who represented himself, claimed the injunction was an "attack" on Indigenous fishing rights protected by the Canadian charter.

"That broad brush of the injunction would have criminalized all Aboriginal harvesters," Francis told CBC News after the court ruling.

Industry still pursuing permanent injunction

Shiels told the court the sustainable eel fishery committee will be seeking a permanent injunction.

A hearing has been scheduled for next month.

In a statement to CBC, the committee said it was "disappointed no immediate relief was granted by the court."

"To be clear, both DFO and the Minister have clearly stated that elvers are not food fish. Moreover, CCSEF is not seeking to prevent anyone from fishing in general, but rather simply trying to protect the integrity of the long-term scientific study conducted at this one location."

Money at stake

Nine commercial elver licence holders in Nova Scotia and New Brunswick share a total allowable catch of 9,960 kilograms.

They are primarily sold to Asian fish farms where they are grown to adulthood for consumption.

The catch was worth on average $4.3 million per licence in 2019.

The commercial industry says they sought the injunction because authorities have not protected rivers from illegal fishing at East River and elsewhere.