‘Anarchy will reign’ unless Indigenous fishing rights are settled: former DFO head

An estimated three times the quota of juvenile American eels (elvers) was caught on Atlantic Canadian rivers and flown out of the country illegally through three airport marine export terminals last spring.

The Canada Border Services Agency didn’t find a single one.

That’s despite commercial elver licence holders notifying Fisheries and Oceans Canada staff about the terminals through which the live, illegally caught elvers were being flown out of en route to Chinese buyers.

After a year that saw something akin to anarchy on Nova Scotia’s rivers as unlicensed harvesters chased juvenile eels worth thousands of dollars a kilogram and accusations of a large-scale commercial lobster fishery pursued on St. Mary’s Bay with little interference from federal enforcement officials, the Standing Committee on Fisheries and Oceans studied “illegal, unreported and unregulated fishing.”

It has heard from current and retired senior federal enforcement officials, commercial fisheries organizations and independent advocacy groups. Atlantic Canada’s First Nations have not yet been represented.

The picture that’s emerging is of widespread fishing of lobster and eels by First Nations members outside of federally regulated fisheries. In the absence of effective enforcement by either the Fisheries Department, provincial processing regulators or the Canada Border Services Agency, non-aboriginal poachers who don’t have a rights-based claim to the resource are fishing, too.

“Settle the Indigenous rights issues,” Morley Knight, a former DFO regional director of conservation and enforcement for the Maritimes, told the committee.

“While there is a risk in that, and one side or the other will not like the outcome, the courts may have to be used to settle or clarify the rights of Indigenous people who fish. Without that, anarchy will reign and there can be no effective compliance program. The risk is greater than what the courts may decide.”

The juvenile American eels caught live along the province’s rivers have to get on a plane at seafood terminals in Halifax, Montreal or Toronto to get to facilities in China, where they are raised to adult size and then resold primarily into the Japanese sushi market.

The primary markets for lobster also require that catch to pass Canada Border Services Agency officials, either heading into the United States by refrigerated truck or on planes out of Halifax to Europe and Asia.

Premature end to season

This spring the tightly regulated commercial elver fishery was closed early, after officials told licensed harvesters they estimated the balance of the quota had already been caught by unlicensed harvesters.

Yet the unlicensed harvest continued along rivers around Nova Scotia, as did the violence that followed.

“I had many constituents whose properties were being defiled, destroyed, as poachers parked and utilized their things,” South Shore-St. Margarets Conservative MP Rick Perkins told the hearings.

“I had single mothers threatened by people. I had death threats, as did my wife, during this time.”

Two senior Canada Border Services Agency officials called before the committee confirmed they performed an unspecified number of inspections, that they never found any elvers and didn’t have any numbers to provide about whether they found or seized any lobster.

Asked if the federal fisheries minister notified CBSA when it closed the elver season early, Cathy Toxopeus, director general of commercial programs for the agency, said, “I was unaware of the elver fishery being shut down, so I can’t speak to that.”

Daniel Anson, director general of intelligence and investigations for the Canada Border Services Agency, said “there may be regional resources that were aware an elver fishery was shut down, but I can’t say for certain.”

He declined to say whether his department was informed of the closure by the federal fisheries minister.

Mel Arnold, Conservative MP for North Okanagan-Shuswap, responded, “That’s surprising because this was all over the news in Atlantic Canada and across the country actually. With the fishery closed, there would not have been any elvers for export, would that make sense?”

To which Anson said, “The statement makes sense.”

While Anson and Toxopeus couldn’t say that anything was seized this year, on paper it should be hard to get unlicensed fish across the border.

“The compliance measures are those that would surface all the types of information that are important to us,” said Anson.

“That lets us know what is coming from where, who achieved it, who harvested the fish in this particular instance and what its destination might be. That also allows us to verify what end use or destination countries, areas, regions or ports for export they might be going to.

“The compliance measures are a tool for us to enable our targeting program to ensure that there is the greatest amount of compliance and that actors are conforming to regulatory or legislation regimes and frameworks.”

Yet somehow large amounts of elvers and lobster harvested without licences crossed this country’s borders in the spring and summer.

Waiting to hear Indigenous voices

In a written statement, the Assembly of Nova Scotia Mi’kmaq Chiefs told The Chronicle Herald they aren’t participating in the hearings in Ottawa.

While there are three potential voices on the schedule to speak on behalf of Indigenous concerns, they haven’t testified yet. One of them is Naomi Metallic, chancellor’s chair in Aboriginal law and policy at Dalhousie University.

In an interview with The Chronicle Herald, she took issue with Knight’s statement that the extent of the moderate livelihood right needs to go back to the courts for clarification.

“This is a political matter, not a legal matter,” said Metallic.

In its 1999 R vs. Marshall decision, the Supreme Court of Canada directed the federal government to consult with First Nations on the implementation of the moderate livelihood right.

The court found that the federal fisheries minister is the ultimate regulatory authority and that the minister has the power and obligation to regulate the right. However, any regulations that limit it have to be the subject of “meaningful consultation.”

“Canada is only saying, ‘You can have commercial licences to fish but it has to be in the same framework as for everybody else,’” said Metallic.

“What I’ve heard is that that doesn’t work for the Mi’kmaq. I’ve heard ‘We don’t have the same boats, we’re a smaller fishery.’ There should be consultations about all this.”

Between the 1999 Marshall decision and 2016, the federal government spent $543 million buying up commercial licences and transferring them along with training, boats and gear to Atlantic Canadian First Nations. Copies of these agreements seen by The Chronicle Herald included language stating they were without prejudice to the moderate livelihood right but included the commitment that First Nations would not act upon the right for a set period of time (usually five years).

While each agreement transferred more access and kicked the issue unresolved down the federal election cycle, the matter came to a head in 2020 when Sipekne’katik First Nation launched its own self-regulated fishery on St. Mary’s Bay. Several other First Nations followed suit around Atlantic Canada.

Since then the federal government has spent another $400 million on “rights reconciliation” agreements with First Nations across the country, and Fisheries and Oceans Canada is seeking a further $133 million for it as a top-up to its regular budget for this fiscal year.

Commercial fishermen have questioned why when so much fishery access has been transferred to First Nation leadership, so many band members remain unable to access the resource.

“Given over a billion dollars has already been delivered to the First Nations providing access, why can their people still not fish?” said Colin Sproul, head of the Bay of Fundy Fishermen’s Association.

“With five per cent of lobster licences in the Maritimes for two per cent of the population, why are First Nations people still not able to access their rights? At some point First Nations fishers need to look inwards to First Nations governments for answer to that question.”

Metallic also took issue with claims that DFO isn’t prosecuting Indigenous harvesters. She pointed to reporting by Maureen Googoo at Ku’ku’kwes News showing that over 50 Mi’kmaq harvesters have been charged in recent years.

Sending the extent of the moderate livelihood back to the courts was only one of Knight’s recommendations.

He also said that a dockside monitoring program for lobster and a catch certification program for all fisheries needs to be put in place, providing documentation showing that any fish product coming out of a processor or buyer was caught with a federal government-issued licence.

He recommended leadership development so that high-ranking senior officers don’t get parachuted in from other federal agencies with little fisheries experience.

And he said a plan for effective and equal enforcement of the Fisheries Act needs to be in place before the elvers return to Atlantic Canadian rivers in the spring.

“Before next spring occurs, if we’re going to improve the situation, DFO needs a clear plan that is communicated to all parties,” said Knight.

“There need to be clear expectations of what is permitted and what is not permitted. They need an operational plan and resources lined up to execute their plan, bringing in staff from across the country, if needed. Also, they have to make it clear that those who don’t comply with the rules in place will be arrested, and equipment used in the commission of the offence will be seized, whether it’s fishing gear, pickup trucks or what have you.”