Judge says DFO acted unfairly in coming to 2023 elver quota decision

A federal judge has ruled the Department of Fisheries and Oceans did not adequately consult with commercial groups that fish for juvenile eels along Maritime rivers when in 2023 it plucked nearly 14 per cent of their quota and gave it to First Nations.

The ruling, which found the quota decision to be "procedurally unfair," is a victory in Federal Court for licence holders who have been at loggerheads with DFO over its handling of the fishery and have launched several legal challenges in recent years.

The lucrative fishery has been the source of tension and violence in recent years as prices soared due to demand in Asia where the tiny eels, known as elvers, are shipped live and then raised in aquaculture facilities for food.

Much has happened, however, since DFO's 2023 quota decision. That season was subsequently halted early due to widespread unauthorized fishing, last year's season was cancelled outright, and this year, most commercial licence holders were stripped of well over half their quota.

Brian Giroux of licence holder Shelburne Elver, one of two commercial outfits behind the court challenge, acknowledged the ruling is in some ways a moot point, given it deals with a season that is two years in the past. But he said his group and at least one other are considering civil action against the federal government.

"If someone's had you on the ground and they're kicking you around, maybe there's a little room for compensation for the actions," he said in an interview. 

Unfair decision

A number of other judges have previously ruled in favour of DFO when commercial groups have disputed decisions officials have made in the elver fishery and have asked the Federal Court to review them.

The most recent ruling instead sides in part with the commercial groups. While Justice Paul Favel said there was insufficient evidence to show that DFO was biased, he did find there was a lack of engagement.

That was unfair, the judge said, and not in keeping with assurances from the year before when DFO made a similar quota decision and said it would engage with licence holders well before the 2023 season.

In a statement, Mitchell Feigenbaum, the president of licence holder South Shore Trading, welcomed the judge's decision and said his company "intends to pursue claims against the Department and its officials in a legal action for damages in connection with DFO's interim and permanent reductions of its quota."

Giroux said the Federal Court process is a "narrow" one, and he's been frustrated by DFO's refusal to release what he views as certain crucial documents.

A spokesperson for DFO said in an email the Federal Court ruling is being reviewed and the department has "no further comment while we consider next steps."