Elver-Fishery-Charges 20230414

‘It doesn’t go away’: another violent fishing season in Atlantic Canada

East Coast fishers have weathered arson, gunshots and harassment. Conflict and turmoil will likely continue until the Canadian government addresses Indigenous Rights head on
This article was originally published on Hakai Magazine.

In the early morning dark of April 12, 2023, violence erupted along a Nova Scotia riverbank after a man engaged a woman and a youth in a heated argument. Soon after, seven people arrived. One allegedly assaulted the man with a pipe while another stood nearby wielding a knife and a taser. When the RCMP later arrested two members of the group a short distance away, the officers found two shotguns and a taser.

The altercation is just one of a series of violent disputes that broke out along rivers across the province in March and April, with people reporting being threatened at gunpoint or with knives. In one instance, a young person was hit in the head. In another, a man was shot in the leg.

At the center of this fighting is a lucrative bounty: translucent, toothpick-sized young American eels, known as elvers. Elvers currently sell for roughly $5,000 per kilogram, the most valuable commercial fish in Canada by weight. The fishery is worth nearly $50 million, and the pressure to maximize profit during the brief 10-week harvest contributes to tensions among fishers.

Citing threats to public safety and to the eel population, Fisheries and Oceans Canada stepped in on April 15 to close the fishery for 45 days.

Conflict around elvers is not new, nor is it the only fishery in Atlantic Canada that’s seen so much turmoil. In 2021, a group of men armed with a hatchet and piece of rebar threatened and kidnapped two elver fishers in order to steal their catch. In 2020, Fisheries and Oceans Canada also shut the elver fishery down early, after confrontations broke out between Mi’kmaw fishers and federal fisheries officers. Later that same year, non-Indigenous lobster fishers torched a fishing boat, a truck and a building to protest the Sipekne’katik First Nation opening a small lobster fishery. As part of the same dispute, a mob surrounded a lobster holding facility in West Pubnico, N.S., trapping two Mi’kmaw fishers and four non-Indigenous workers inside.

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A common point of contention underlies many of these violent conflicts. First Nations spokespeople, commercial fishers and legal experts agree that Fisheries and Oceans Canada’s decades-long refusal to uphold Indigenous peoples’ right to fish for a moderate livelihood has led to altercations in one fishery after another.

“When there isn’t a resolution to rights issues for Indigenous peoples, it doesn’t go away,” says Rosalie Francis, a Mi’kmaw lawyer from Sipekne’katik First Nation. “The issue was never resolved, so now we see it in another resource area.”

Indigenous nations say Treaty Rights mean control over fisheries

In 1760 and 1761, three Indigenous nations — the Mi’kmaq, Wolastoqiyik and Peskotomuhkati — signed treaties with the British Crown. Known as the Peace and Friendship Treaties, the agreements upheld Indigenous peoples’ right to hunt, fish and trade. For centuries, that right was disregarded by colonial governments.

In 1999, however, Canada’s Supreme Court reaffirmed that right in R. v. Marshall. The defendant in the case was Donald Marshall Jr., a Mi’kmaw man from Membertou First Nation in Nova Scotia. Six years earlier, he had been arrested for fishing for adult eels without a license and selling his catch. The high court’s verdict upheld Marshall’s treaty right to fish year round, including outside commercial seasons, and to earn a “moderate livelihood” — enough income to cover basic necessities but not to “accumulate wealth.”

The ruling, known as the Marshall Decision, applied to members of 34 Mi’kmaq, Wolastoqiyik and Peskotomuhkati communities in Quebec, Prince Edward Island, New Brunswick and Nova Scotia.

Sipekne'katik First Nation community members wave a flag that reads 'We are all Treaty people', while a coast guard helicopter hovers in the background in Saulnierville, N.S. in 2020. The nation's
Sipekne’katik First Nation members wave a flag that reads, ‘We are all Treaty people,’ while a coast guard helicopter hovers in the background in 2020. Despite a Supreme Court ruling affirming their right to fish, East Coast Indigenous fishers have been met with resistance from Fisheries and Oceans Canada officers and non-Indigenous commercial fishers. Photo: Mark O’Neill / The Canadian Press

Legally, the nations’ Treaty Rights to fish have priority over commercial fishing, though the Supreme Court later clarified that Fisheries and Oceans Canada can curtail First Nations fishing to protect fish populations. What the court did not do, however, was detail how moderate livelihood fishing would work in practice. Instead, it tasked Fisheries and Oceans Canada with developing regulations with the First Nations.

Yet when Indigenous fishers set out to exercise their newly reaffirmed right, Fisheries and Oceans Canada enforcement officers and non-Indigenous commercial harvesters stopped them.

“Once we had got our rights, nobody wanted to share quotas or share the fish,” says Kerry Prosper, an Elder and councillor for Paqtnkek Mi’kmaw Nation in Nova Scotia. “[Fisheries and Oceans Canada] and everybody said [fisheries were] fully subscribed, meaning there’s no room for you.”

The years that followed the Supreme Court ruling earned a heavy moniker: the lobster wars. People rammed each other’s boats, fired guns on the water, cut lobster traps and set vehicles ablaze. The renewed violence decades later suggests that anger has not abated.

In the 24 years since the Marshall Decision, Fisheries and Oceans Canada has tried a handful of approaches to tackle the moderate livelihood question. It spent hundreds of millions on gear and commercial licenses for Mi’kmaw communities. More recently, the department and some First Nations signed controversial Rights Reconciliation Agreements. But those efforts have largely tried to funnel First Nations fishers into existing commercial fisheries. In 2022 and 2023, the federal government took a similar tack: it expropriated 14 per cent of the commercial harvesters’ elver quota and redistributed it to Indigenous communities.

The move angered many.

Unsurprisingly, commercial license holders were not happy with suddenly losing $6 million worth of quota. Michel Samson, a lawyer representing commercial harvesters in a judicial review of the reallocations, says his clients support increasing First Nations access to the fishery. They were prepared to relinquish quota for a fee — the willing buyer–willing seller approach that Fisheries and Oceans Canada has used in multiple fisheries since the Marshall Decision — but their offers were rejected.

“[Fisheries and Oceans Canada] turned around and decided we’ll just take your quota instead,” Samson says. “If you’re going to have a proper reconciliation and new entry into a fishery, you need to compensate those who are in who are prepared to get out.”

But Fisheries and Oceans Canada says that license holders wanted more than market value for the quota. A decision on the judicial review could be issued as soon as this month.

Ken Paul, lead fisheries negotiator and research co-ordinator for the Wolastoqey Nation in New Brunswick, says that from an Indigenous Rights perspective Fisheries and Oceans Canada’s reallocation scheme also doesn’t address the underlying issue: that moderate livelihood fishing is a separate right that has legal priority over the privilege granted to commercial license holders.

“Our position,” says Paul, “is that these fishing licenses are not an accommodation of our rights. These are temporary access.”

Beyond that, Paul notes, the reallocated quota is much less than what a non-Indigenous commercial license holder would have. In 2022, Paul says, the 12,000 members of the Wolastoqey Nation received 200 kilograms of elver quota. “Our members fished that out in five days,” he says.

But if Wolastoqey members choose to fish beyond those 200 kilograms of commercial quota — exercising their treaty right to fish — they encounter other barriers. Because moderate livelihood fisheries are not authorized by Fisheries and Oceans Canada, fisheries officers can fine anyone who buys the catch, including wholesalers and resellers, who can also have their licenses suspended. (The same applies to anyone caught buying from poachers.) The legal risk means that Indigenous fishers often earn a fraction of the high prices that commercial fishers get for elvers and other species.

Ultimately, Paul says, the Wolastoqey Nation wants control over management of fisheries on their territories, including support from Fisheries and Oceans Canada for the nation to conduct scientific work on elvers.

Lack of clarity from Fisheries and Oceans Canada makes confrontation more likely

Fisheries and Oceans Canada’s inconsistent approach to addressing Indigenous treaty rights is not solely a high-level legal dispute. The lack of clarity, says Michael McDonald, a Mi’kmaw lawyer and treaty fisheries manager on contract for Sipekne’katik First Nation, means Indigenous fishers are currently operating in a void that’s made confrontation more likely — including with Fisheries and Oceans Canada officers.

Time and again, says McDonald, Indigenous community members asserting their right to fish have been charged by Fisheries and Oceans Canada enforcement officers. The charges are not for fishing, though. “They get them arguing, and then they charge them with obstruction [of a fisheries officer],” the lawyer says.

Indigenous lobster fishers have had similar run-ins with enforcement. In one 2018 incident, three of McDonald’s clients were fishing lobster for a moderate livelihood when a Fisheries and Oceans Canada officer charged them with fisheries violations and seized their traps. This past January, a Nova Scotia provincial court judge dismissed the charges, saying there was no evidence the fishers had violated Canada’s Fisheries Act.

In a statement, Fisheries and Oceans Canada spokesperson Lauren Sankey says the government is committed to advancing First Nations’ right to fish. But by not clarifying the difference between commercial licenses and Indigenous Rights, Paul says, the government has created a situation where people feel justified opposing Indigenous access. “Our members are afraid to go out there because they’re being persecuted by [Fisheries and Oceans Canada], persecuted by non-native people who feel like First Nations are a threat to their livelihoods.”

Without a plan to implement the Indigenous fishing rights that have been affirmed by Canada’s Supreme Court, we likely haven’t seen the last of this conflict, says Francis. Whether it’s around elvers, lobsters or something else, “this will continue to play out, and play out, and play out, until the government deals with the issues on the table.”

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