Fisheries and Oceans Canada faced a five-fold increase in Mi'kmaw fishing for baby eels in 2020 primarily on Nova Scotia rivers — an event it did not expect and could not manage, according to internal DFO documents obtained by CBC News.
The federal department had been closely monitoring, and in some cases prosecuting, the unauthorized sale of baby eels harvested by Mi'kmaq under Food, Social and Ceremonial (FSC) eel licences since 2017.
The appearance of more than 110 Indigenous fishermen at the beginning of April 2020, up from 21 across the region in 2019, quickly forced a shutdown of the little known but lucrative fishery throughout the Maritimes, the documents state.
It was the first time that had happened.
About the fight over elvers
DFO was in the middle of a collision between Mi'kmaq asserting treaty rights and commercial harvesters anxious to protect a fishery worth $38 million in 2019.
Nine licence holders share a total allowable catch of 9,960 kilos of baby eels — known as elvers.
They are primarily sold to Asian fish farms where they are grown to adulthood for consumption.
The tightly regulated commercial fishery was worth an average of $4.3 million per licence in 2019.
Making the case to shutdown 'unmanageable' fishery
Unlike commercial licences where quotas and landings are tracked via logbooks and verified by dockside monitoring, FSC elver catches are not reported and sales are not allowed.
"Given the high value, and since elvers are not known to be a traditional or current food fish for Indigenous people, this harvest is suspected to be for sale into international markets," Deputy Minister Timothy Sargent wrote to federal Fisheries Minister Bernadette Jordan on April 22.
Sargent was recommending the first of what would turn out to be two temporary 45-day closures, which effectively ended the entire 2020 season.
It was a response to the unprecedented increase in Mi'kmaw elver fishing and fears over escalating conflict as harvesters competed over access.
"The unexpected, heightened scale of the activities that have been observed to date (which by far exceeds what DFO had expected based on previous years) has led DFO to determine that those concerns cannot be managed through localized closures," Sargent wrote.
"This level of fishing, in addition to the commercial fishery, has become unmanageable and represents a threat to the conservation of the species."
Lawsuit pulls back curtain on a hidden struggle
In July 2020, commercial harvesters filed a lawsuit in the Federal Court of Canada seeking to overturn the shutdown order.
They argued DFO had not done enough to stop unregulated fishing.
In its defence, the department filed 60 pages of documents justifying its actions.
The lawsuit was later dropped. But the documents reveal what has been a mostly hidden struggle that features nighttime confrontations illuminated by flickering flashlights at the side of a river.
The DFO documents included advice from senior bureaucrats, assessments from its enforcement branch, Conservation and Protection, and detailed economic analysis of the fishery.
What we learned
Mi'kmaw involvement in the elver fishery was first observed in 2016 when two or three harvesters claimed to be fishing for food, social and ceremonial purposes on rivers in southwestern Nova Scotia.
The FSC fishery has expanded to every elver river in southwestern Nova Scotia, including Yarmouth County where commercial fishing is not allowed and a range of elver rivers in eastern Nova Scotia.
A 2017 investigation led to the raid of a warehouse near Pearson Airport in Toronto, where police seized about eight kilograms of what they said was FSC-harvested elvers worth $170,000 — an amount DFO said represented a fraction of the current alleged illegal activity. No charges were laid due to lack of evidence.
The shutdown was projected to reduce landed values for commercial licence holders to $6.5 million.
Unauthorized elver fishing in Nova Scotia continued despite the order.
Over a 23-day period from late April and May, fishery officers made 25 arrests, seized 16 trap nets, 19 dip nets and three weapons and returned about eight kilograms of elvers to rivers. It is not clear if the arrested were Mi'kmaq.
DFO proceeded despite risk of alienating Mi'kmaq
DFO was aware its actions would be seen as an infringement of the Mi'kmaw right to harvest for food, social and ceremonial purposes, and risked a "negative effect" on discussions over the treaty right to earn a moderate livelihood.
"However, risks to conservation and proper management and control of the fishery are currently believed to be at a level where this is necessary," Sargent wrote.
The shutdown was followed, after the fact, by discussions with Mi'kmaw bands where responses to the ministerial order varied.
A summary of the engagement said some Mi'kmaw communities supported the shutdown to protect American eel while others strongly opposed any changes to FSC licences that would potentially restrict access.
There was also "considerable displeasure about a perceived lack of consultation" in some communities, including Kwilmu'kw Maw-klusuaqn, KMKNO, which is the negotiation office for the Assembly of Nova Scotia Mi'kmaw chiefs.
Canada moves to end FSC elver fishery in 2021
In February 2021, DFO imposed a 10-centimetre minimum size on all FSC American eel licences issued to all bands in the Maritimes.
Before this, most licences did not contain a minimum size.
The condition is expressly designed to prevent FSC elver fishing and was urged in a DFO Conservation and Protection report in 2020.
"The ability to protect the species and deter over-harvesting will be much greater enabled through decisive action with respect to the introduction of of size limits and gear restrictions as part of the food, social and ceremonial licence conditions - which would accord much stronger enforcement mechanisms to fishery officers and Public Prosecution Services of Canada (PPSC)," the report said.
"Elver is a lucrative commodity which is easily harvested. There are individuals fishing elver who are affiliated with criminal entities due to the ability to rapidly sell their catch and funnel the proceeds toward other endeavours. MAR C&P is working increasingly more closely with policing counter-parts to disrupt these elements."
The DFO documents do not mention any Mi'kmaw harvesters being charged in these cases.
Arrest continue in 2021
The shutdown has not ended confrontations on elver rivers.
Since the season opened in March, fishery officers have arrested 14 people and made a number of seizures over alleged unauthorized elver fishing.
It's not clear if the enforcement actions relate only to Mi'kmaw fishermen.
Some of the arrests involved members of the Sipekne'katik band.
Chief Mike Sack says the fishermen were exercising their treaty right to fish for a moderate living.
"It falls under that. And I fully support any of our members that are out there exercising their right under any fish or wildlife or resources that there may be," he said.
Chiefs say cut the commercial harvest if there is a conservation issue.
In a statement, the Assembly of Nova Scotia Mi'kmaw Chiefs asserted First Nations interest in fishing elvers under food, social and ceremonial licences, and objected to the unilateral decision to suspend elver fishing in 2020 by DFO.
"While the protection and conservation of all species is always a concern for our people, the Mi'kmaw have a desire to fish elvers for Food, Social and Ceremonial purposes," Annapolis Valley First Nation Chief Gerald Toney said in a statement.
"We should be able to fish any species, as needed and as required, while respecting concerns for conservation, as outlined in Sparrow," he said, referencing the 1990 Supreme Court case that spelled out steps required to infringe on a treaty right.
In December, one of their negotiators told DFO that elvers are a viable food source for Mi'kmaw communities and commercial licences should be cut first if there are conservation issues.
In a statement, DFO said it will respond accordingly to conserve the population and maintain a sustainable and orderly fishery in 2021. It is the same language it used last year when it shut down the fishery.
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