Inside the failed Maritime elver fishery: documents describe confrontation, risk to safety

Disclosure documents filed by the Department of Fisheries and Oceans (DFO) in a federal court case are revealing the breadth of unauthorized Indigenous harvesting in the chaotic and aborted 2023 Maritime fishery for baby eels, or elvers.

Multiple First Nations launched commercial elver fisheries in defiance of DFO and large groups of unauthorized Indigenous harvesters massed at riversides to thwart enforcement efforts, the documents say.

Despite assurances that it was prepared before the season opened, DFO was forced to shut down the legal elver fishery on April 15 after fishery officers reported "1,550 individual occurrences" of unauthorized fishing by both Indigenous and non-Indigenous harvesters.

DFO documents do not provide a breakdown of the harvesters but make clear part of the problem it faced was openly defiant Indigenous groups operating outside of the legal fishery.

"Some, but not all of the unauthorized fishing is carried out by members of First Nations without access or with what they consider to be insufficient allocations within the authorized fishery," deputy minister Annette Gibbons wrote on April 14, recommending closure.

Why this matters

The failure is a reminder that Canada has yet to resolve how conservation is managed where First Nations have a treaty right to earn a moderate living from fishing while the Supreme Court of Canada has also ruled that Fisheries and Oceans has a final say on conserving fish stocks.

That tension is outlined in advice provided to then minister Joyce Murray as the department planned for, and then ended, the legal elver fishery in 2023.

Several hundreds pages of documents were released in response to a Federal Court of Canada legal challenge launched by some holders of commercial elver fishing licences.

The documents obtained by CBC reveal a chaotic, violent and unmanageable fishery overwhelmed by unauthorized harvesters drawn by easy money. They also say the uncontrolled fishery posed a safety risk to authorized harvesters and fishery officers and to conservation of the species.

The tiny, translucent eels sell for $5,000 per kilogram and are shipped to Asia where they are grown for food.

In 2022, the fishery was worth $47 million, shared between eight commercial licence holders and three Indigenous communal commercial licence holders operating with DFO approval.

What happened on the rivers

The documents say DFO conservation and protection officers encountered different attitudes from various groups fishing without licences.

"Notably, when fishery officers are encountering individuals who are Indigenous, they believe they are authorized to fish by their own chief and council or a broader constitutionally protected right to fish and sell elver without any restriction by the DFO. Most non-Indigenous harvesters attempt to avoid detection when [conservation officers are] present, likely out of fear they do not have the same rights asserted by Indigenous harvesters."

That dynamic had consequences, according to the documents.

"There is a heightened safety risk when unauthorized harvesters purposefully work in large groups, making it extremely difficult for fishery officers to monitor for compliance and take enforcement action," Murray was told on April 14.

"There is also an added risk of further escalating the pre-existing tensions by undertaking focused operations to disrupt large groups with additional fishery officers, in particular when Indigenous harvesters are poised to defend what they view to be a treaty right to participate in this fishery. This has factored into the approach taken to date, balancing efforts to monitor both the harvesting and sale of elvers."

'Officers barricaded'

The department cited an April 11 incident: "DFO fishery officers barricaded in at Gold River, N.S., and prevented from leaving for close to one hour. RCMP attended and eventually road opened up."

The RCMP provided its own version of the incident to CBC this week saying its Lunenburg detachment "responded to a request for assistance on Beech Hill Road in Gold River First Nation. RCMP officers learned that a peaceful demonstration was ongoing relating to the elver fishery.

"In consideration of the RCMP's role of promoting public safety our members attended the scene and monitored the situation. At approximately 8:35 p.m. the demonstration ended peacefully and everyone, including our members, left the area."

DFO cited another incident the following day when 50 Sipekne'katik fishers threatened commercial fishers on the Sissiboo River near Digby.

Pressure to increase Indigenous access

Prior to the season, Fisheries and Oceans was notified by three Maritime First Nations who did not have DFO approved fishing plans — Sipekne'katik, Millbrook and Elsipogtog — that they were proceeding with their own commercial fishery.

Kwilmu'kw Maw-klusuaqn (KMKNO), the negotiation office for the Assembly of Nova Scotia Mi'kmaw Chiefs, also told DFO "a revised elver plan is being provided that will no longer only be the four Kespukwitk communities. It will now include five Unama'ki (Cape Breton) communities and Pictou Landing First Nation which represents over 100 per cent increase in previously authorized community population."

During the season fishery officers observed unauthorized harvesters from Eskasoni, Whycocomagh and Listuguj First Nations and received reports of unauthorized harvest from other Maritime First Nations, as well as from the United States.

Members of First Nations with approved fishing plans were also seen "fishing on rivers that are not part of their respective licences, leading to conflicts with other commercial fishing operations."

What DFO approved

In 2023 DFO approved fishing plans and allocated a 450-kilogram quota shared between four Kespukwitk groups in southern Nova Scotia — Acadia, Bear River,Annapolis Valley and Glooscap.

Six Wolastoqey First Nations in New Brunswick were allocated 750 kilograms.

The quota was 13.7 per cent of the overall total allowable catch and was taken from non-Indigenous commercial licence holders without financial compensation.

The minister rejected advice to reduce the commercial quota by 25 per cent in 2023 and transfer it to Indigenous groups.

The We'koqma'q First Nation in Cape Breton maintained its long standing commercial quota.

KMKNO did not respond to a request for comment on this story.

Acadia, Sipekne'katik and Millbrook also did not respond.

'Poaching' continued after legal fishery closed

Both KMKNO and the Wolastoqey objected to the closure of their previously approved fisheries. The Kespukwitk bands had caught 369 of its 450-kilogram quota when it closed. The New Brunswick bands had netted 111 of their 750-kilogram quota.

The closure did not end what the Fisheries minister called "poaching" despite hopes it would severely limit "the opportunity to disguise or launder unauthorized product" within the legal fishery supply chain.

The out-of-control fishing season also affected the East River near Chester, N.S., which is the "index river" used by DFO to monitor the health of the elver stock, according to the documents. DFO uses the information to estimate the abundance of the elver population for the entire region and manage conservation.

Industry had funded the research for over two decades.

"The increase in unauthorized activity in that location is a risk to conducting the planned work to inform science advice on the fishery, thereby contributing to longer term conservation challenges," DFO said.

After the shutdown, a non-Indigenous licence holder captured trail camera images of poaching on the East River on 30 different nights and sent the photos to the minister of Fisheries.

Commercial licence holders

Michel Samson represents Wine Harbour Fisheries, one of the commercial elver licence holders suing DFO.

"What we saw in the spring was clearly known to DFO and should have been predicted and should have been prepared for," Samson told CBC News.

Samson says Wine Harbour has made an unsolicited offer to sell its 1,200-kilogram quota back to the federal government to provide more Indigenous access.

The Department of Fisheries abandoned previous negotiations saying licence holders wanted too much money.

"The minister can no longer say that all of the proposals were too expensive. There is now an option, and that option is to buy out licence holders and be able to distribute that quota to new First Nations."

What happened to industry

The Kespukwitk bands were first brought into the commercial fishery in 2022 in an effort to implement moderate livelihood rights.

Their quota was taken from the eight commercial licence holders without compensation, triggering a Federal Court lawsuit by commercial licence holders on the grounds it amounted to an unfair expropriation and violated a commitment to buy out existing licence holders when new entrants are brought into a commercial fishery.

The 2022 suit was rejected by the Federal Court last week on the grounds DFO was entitled to reallocate quota. But a suit filed when DFO maintained the overall 13.7 per cent cut to non-Indigenous commercial quotas in 2023 remains open.

Outside perspective

Fisheries consultant and author Rick Williams says the elver fishery is unique: offering huge returns on low effort that is very difficult to police.

And it illustrates the ongoing challenge of integrating moderate livelihood into commercial fisheries while maintaining oversight.

"There's a lot to be worked out about how the First Nations and the federal government are going to work together. In this extremely vulnerable fishery that has to happen very quickly if there is going to continue to be a regular commercial fishery and a moderate livelihood fishery in future," he says.

"The reality that everybody has to live within is that there's a limited amount of fish in the water. And although people do have rights of access to that fish, those rights have to be constrained by conservation requirements. And so there are a limited number of people who will be able to participate in this fishery."