Court won't overturn decision to cut quota from N.S., N.B. elver licence holders

Three judges have delivered another blow to beleaguered commercial groups that fish for lucrative juvenile eels in the Maritimes, agreeing with a lower court ruling that upheld Ottawa's 2022 decision to transfer a portion of their quota to First Nations without compensation.

The Federal Court of Appeal heard arguments in the case last week in Halifax, and emerged with a decision that found the federal fisheries minister had "broad discretion" and had used it reasonably.

Tien Nguyen, a pioneer in Canada's fishery for young eels, also known as elvers, said he had hoped the judges would address the "absolute power" of the fisheries minister to make decisions that have enormous financial impact on licence holders.

"It's just like you build up the business, you struggle with it for a number of years, and when it's finally successful, the government decided to take it away from you," said Nguyen, who heads an elver company that fishes in Nova Scotia and was involved in the case as an intervener. 

"How would you feel if someone take your pension plan and give it away to your neighbours?"

The elver fishery has descended into chaos in recent years. There has been violence and widespread poaching along Nova Scotia and New Brunswick rivers, where elvers are caught with nets at night. This year's spring fishery was cancelled before it even got underway.

The problems emerged as the price rose dramatically — hitting a high of $5,000 a kilogram in 2022 — fuelled by demand from Asia where the elvers are shipped live, then grown to adulthood in aquaculture facilities and sold for food.

Some Mi'kmaq and Wolastoqiyik have claimed a treaty right to fish for elvers. In 2022, the federal fisheries minister, who at the time was Joyce Murray, transferred 14 per cent of the quota of the eight commercial licence holders to Indigenous groups without compensation.

The Department of Fisheries and Oceans did the same in 2023, and this summer indicated it was considering handing 50 per cent of the fishery's total annual catch of 9,960 kilograms to First Nations, again without compensating licence holders.

The department has also proposed shaving off even more quota by handing out small licences to 150 individual elver and eel fishermen.

DFO declined to comment on the Federal Court of Appeal decision as Shelburne Elver Ltd., the main group behind the appeal, has 60 days to try to seek a hearing in the Supreme Court of Canada if it chooses.

Three licence holders were involved in the original lower court challenge. None questioned that First Nations should have more access, but they were unhappy the department had abandoned the "willing buyer, willing seller" approach where licence holders would be compensated if they voluntarily gave up quota.

Brian Giroux with Shelburne Elver Ltd. said he had hoped the judges from the Federal Court of Appeal would provide oversight for what he called the "dictatorial powers" of the federal fisheries minister.

"I think I really would like to emphasize that this is frightening for anybody investing a nickel" in commercial fisheries, he said.

DFO said in a statement it will decide individual quotas and the total allowable catch allocated to the elver fishery before the 2025 season opens, and is "seeking the views" of licence holders, treaty right holders and individual fishermen.

"Given the significant increases in elver value and relatively low input costs, the commercial elver fishery presents a unique opportunity to broaden the distribution of the prosperity that can be generated among various types of harvesters, potentially including young harvesters, employees of existing commercial licence holders, and harvesters who participate in co-operative commercial enterprises," the statement said.

Nguyen said he and his wife, Anh, who works with him in the elver fishery, both fled communist Vietnam in the 1970s, and the moves by DFO to strip quota from licence holders feel like something from a communist regime where "private property doesn't exist anymore."

Anh Nguyen said she believes Indigenous and non-Indigenous people should have an equal right to the fishery.

The couple said they struggled for more than 20 years when prices were a small fraction of today, slowly figuring out how to fish for elvers, where to find them, and how to keep them alive and healthy before being shipped overseas.

"We worked hard, we built a new life," Anh Nguyen said. "We are very proud we had contributed to the community with this elver fishing, and we're still waiting [for a] pat on the back from the government saying, 'Oh, thank you for your contribution.'"