As eight Mi’kmaw communities co-ordinate a federally recognized elver fishing plan, and others fish independently, tensions have grown over regulatory confusion and enforcement by Fisheries and Oceans Canada (DFO).
Here’s what you need to now about the complex regulatory landscape surrounding the Mi’kmaw elver fishery.
First, a brief look back to the Marshall decision.
In 1993, Donald Marshall Jr., a Mi’kmaw man from Membertou First Nation in Nova Scotia, was arrested and charged for fishing and selling eels in Pomquet Harbour, near Antigonish, N.S.
Marshall was supported by Mi’kmaw leaders, and believed he was exercising a right guaranteed by the 1760/61 Peace and Friendship treaties, affirming Mi’kmaw rights to trade and commerce.
His case went to the Supreme Court and resulted in a landmark decision in 1999 that affirmed the Mi’kmaw right to hunt, fish and gather in the pursuit of a “moderate livelihood.” The decision also implicated the Wolastoqiyik and the Peskotomuhkati.
A second decision, Marshall II, clarified that the treaty right could only be infringed upon when justified for conservation reasons or other grounds, and Indigenous people must be consulted about any limitation of their treaty rights.
Mi’kmaw communities began to assert their treaty right, while the federal government launched new initiatives aimed at managing what courts now recognized as a constitutionally protected right for First Nations in Atlantic Canada.
The Marshall decisions have resulted in tensions between First Nations and non-Indigenous fishers over the perceived impact of a treaty rights-based fishery on commercial fishing, with notable conflicts arising in Esgenoopetitj in New Brunswick in 2000 and more recently in Sipekne’katik in Nova Scotia.
The Maritime elver fishery began as a small experimental fishery in 1989 with just a handful of licence holders.
Over the past two decades, the baby eel fishery’s growth in Canada has been explosive. The demand, particularly in Asia, combined with declining eel populations worldwide has driven prices as high as $5,000 per kilogram, making elvers one of Canada’s most valuable fish.
Harvested primarily in rivers and estuaries in New Brunswick and Nova Scotia, the tiny eels are caught, shipped live to Asia and raised to adulthood in captivity.
In 2019, a number of Mi’kmaw fishers in Nova Scotia entered the elver fishery independently, citing their treaty right to earn a moderate livelihood.
That same year, three Nova Scotia Mi’kmaw communities — Annapolis Valley First Nation, Bear River First Nation and Wasoqopa’q First Nation — drafted their own joint elver fishing plans, outside of the regulations of Fisheries and Oceans Canada.
In late 2024, eight Mi’kmaw communities develop a unified elver management strategy grounded in Mi’kmaw principles of self-determination, united through the Kwilmu’kw Maw-klusuaqn Negotiations Office (KMK), a group that negotiates on behalf of the Nova Scotia Mi’kmaw chiefs.
KMK was able to negotiate with Fisheries and Oceans Canada (DFO) for 50 per cent of the overall elver quota for First Nations fishers in the 2025 season — of which the group received almost 20 per cent.
The KMK communities fish under their Netukulimk Treaty Right Protected (TRP) elver fishery management plan, which the group says prioritizes conservation and Mi’kmaw self-determination over federal regulation.
Justin Martin, KMK’s fisheries manager and a member of Millbrook First Nation, said their plan isn’t about putting restrictions on moderate livelihood fishing rights, but co-ordinating the implementation of rights in a justifiable conservation-based way.
“This TRP fishery is authorized by those eight First Nations and [we’re] just a delegate to support that and manage that,” said Martin.
“We did extensive community engagement, including a survey of over 600 Mi’kmaw individuals, to not only understand their aspirations around livelihood-specific fishing activity, but also their aspirations and and thoughts on the elver fishery.”
Martin said creating a low-barrier, night-time fishery conducted on multiple rivers can present challenges, but he’s hopeful to see the First Nations fishery continue to develop in the coming years.
At the same time, three Nova Scotia Mi’kmaw communities — Sipekne’katik First Nation, Millbrook First Nation and Membertou First Nation — have chosen to assert their treaty rights independently. These communities developed their own fishing plans prior to DFO’s quota offers and continue to harvest elvers without the federal authorization, backed only by their moderate livelihood fishing rights.
Alden Paul, a TRP plan harvester from Eskasoni First Nation, said he sees much in common with the independent fishers despite their different approaches in 2025.
“I’m an elver fisherman who’s part of an actual plan approved by DFO; I don’t feel threatened by a treaty fisher who doesn’t have the same plan fishing next to me,” said Paul.
“Yeah, it might be governed in different ways, but we all have a right to it and we’re all there to provide for our families, whether you’re part of the TRP or you’re a treaty fisher.”
Paul said he feels fishing through the quotas and regulations is better in terms of safety and minimizing harassment from DFO but worries that working with the federal fisheries department is setting up fishers for failure.
At the beginning of April, KMK raised concerns in a letter to DFO, about misinformation allegedly being shared by Conservation and Protection Officers (C&P).
Issues cited included confusion on fishing area designations and proper net usage, two main distinctions between the DFO and TRP management plans.
“We were under the assumption that DFO would respect our constitutionally protected rights throughout this process,” said the letter.
“C&P’s misinformation undermines our conservation efforts and contradicts our plans.”
The organization also worried misinformation from enforcement officers would be used to justify punitive actions against individual harvesters asserting their treaty rights.
DFO said any licence holder or authorized group, like KMK, can set additional parameters for harvesting.
“It is the responsibility of the licence holder or authorized group to ensure that their designated harvesters are following their plan,” a statement from the department said.
“However, DFO will continue to enforce the Fisheries Act.”
