THE STANDING SENATE COMMITTEE ON FISHERIES AND OCEANS
EVIDENCE
OTTAWA, Thursday, May 9, 2024
The Standing Senate Committee on Fisheries and Oceans met this day at 9:14 a.m. [ET] to study the federal government’s current and evolving policy framework for managing Canada’s fisheries and oceans including maritime safety.
Senator Bev Busson (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning. My name is Bev Busson, a senator from British Columbia, and I have the pleasure of chairing this meeting this morning.
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Today, we are conducting a meeting of the Standing Senate Committee on Fisheries and Oceans.
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Before we begin, I would like to take a few moments to allow the members of the committee to introduce themselves.
Senator Cordy: Good morning and welcome. I’m Jane Cordy. I’m a senator from Nova Scotia.
Senator Cuzner: Rodger Cuzner, senator from Nova Scotia as well.
Senator Petten: Iris Petten, Newfoundland and Labrador.
Senator C. Deacon: Colin Deacon from Nova Scotia.
The Deputy Chair: Welcome. We have the whole country covered — as I mentioned, I’m Bev Busson from British Columbia — from sea to sea.
On February 10, 2022, the Standing Senate Committee on Fisheries and Oceans was authorized to study the federal government’s current and evolving policy framework for managing Canada’s fisheries and oceans.
Today, under this mandate, the committee will be welcoming and hearing from the following witnesses from Shelburne Elver Ltd.: Brian Giroux, Managing Partner; and Zachary Townsend, Plant Manager. Welcome to both of you. I understand you have some opening remarks, Mr. Giroux. Thank you so much.
Brian Giroux, Managing Partner, Shelburne Elver Ltd.: Thank you very much for the invitation and for the kind attention to, at least, listen to something we have to say.
First of all, I’d like to do a little bit of a background. For me, I have been a fisherman from the time I was 16, and went fishing on almost anything I could get aboard of when I was young. Eventually, I became an international fisheries observer for the Department of Fisheries and Oceans, or DFO, at the very beginning of the 200-mile limit struggle, let’s say. I went on all the foreign fleets — Japanese, Russian, Portuguese, Spanish and French — and I still speak a little Russian and Japanese. After four years of fishing on international vessels — Russian vessels and Japanese vessels, as I said — in the wintertime, we went onto domestic fleets, fishing the northern cod, off the Scotian Shelf and Georges Bank — you name it. Eventually, I found time to go home and do lobster fishing and all that kind of stuff.
In 1989 — after I don’t know how many years of doing all that — I came ashore and started working for fishermen as a negotiator. The first groundfish crisis was happening in Nova Scotia at that time, and I started working for fleets that needed somebody to help guide them through these messes. I worked in groundfish fleets, shrimp fleets, scuttle fleets, silver hake and all kinds of different areas. I helped create fisheries in yellowtail on Georges Bank. I negotiated the Canada-U.S. fishing agreement on Georges Bank. I Canadianized the silver hake fishery and created the shrimp fishery off of Cape Breton. I did a whole range of things to try to create economics within the 200-mile economic zone for our country, and to try to diversify and modernize the industry in that respect.
At the time, I also served as a member of the Canada-Nova Scotia Offshore Petroleum Board for six years, helping to regulate the beginning of the oil and gas industry in the development of the stable gas project. I’m fully familiar with regulation, enforcement, international agreements and all kinds of things.
One of the things I did along the way was this: As a fisherman, I had a licence to fish eels in Shelburne County. At the time, in 1997 or 1998, I started talking to the department and I got together all the licence holders in Shelburne County. Instead of fishing the big yellow and silver eels, we converted to fishing the glass eel because the management plan emphasizes that you should only fish one life stage within the system. If you have a system, you only fish one of the three life stages for conservation purposes.
Seventeen of us formed the group — an equally divided fishermen’s cooperative. We simply operate as a company for structure and limited liability reasons, et cetera. To this day, it’s still the same. Michael, who is Zachary’s father, is a partner of mine, and his grandfather was too. We created this out of nothing. Basically, we started selling eels for $50 per kilo. Eventually, as the air freight connections became better, and as the European fishery declined, this industry started to take off and become more valuable, but, at the beginning — 20-odd years ago — it was nothing much more than a bit of part-time money that we could make to fill in a season.
I’d like to point out that at that time, every First Nation in Nova Scotia was offered a licence in 1997 and 1998 because the We’koqma’q Band in Cape Breton has a licence. They accepted that offer, and they have a licence today in this fishery — for as long as we have. Every band at that time was offered the opportunity to fish this eel at this life stage, and all refused except for the We’koqma’q First Nation.
Springing forward a bit, in our area, we have a fairly good relationship with the local band, and we have actually submitted proposals to try to help them come in; the department rejected that. Back in 2015, we first started noticing the first people from outside of our area coming to fish glass eels. They were abusing, in our mind, the food, social and ceremonial, or FSC, licence. There were only one or two of them at the beginning, and the local fisheries officers told us — glass eels are not a source of food, by the way — at the time that it’s not a big issue, and that the licence would be amended. In 2015, 2016, 2017, 2018 and 2019, I asked every year twice — in two management meetings per year — for the department to please amend the FSC licence to include a minimum size of 10 centimetres. That, by the way, was what the local band had in its FSC licence: a 10-centimetre minimum size. But these were bands that had not accepted that, and they were fishing under that. For five years — twice a year — at the management meetings, I asked them to amend that licence, and they did nothing. This is the Department of Fisheries and Oceans. They did nothing.
Then, 2020 comes along. In the middle of the pandemic, we’re still fishing. By that time, it had grown to over 500 people fishing with an FSC licence. The encounters with the fisheries officers were getting bad during the pandemic, there were all kinds of strange stories, with people pushing back against the enforcement department. On May 12, the Fisheries and Oceans Department calls us up and says, “We’ve lost control of the situation, and we’re going to close your fishery.” We had asked them for five years to amend that licence, not one or two years.
They closed our fishery in 2020. Interestingly enough, in 2021, the FSC licence was amended. The large group of people who had been fishing on this FSC licence switched over to fishing for a modest livelihood. The Government of Canada assured us that the modest livelihood would be subject to sanction under the Fisheries Act, but basically the problem kept growing and growing.
The next thing that happened was that the Public Prosecution Service of Canada started dropping the ball. They started to charge a lot of people in 2020-21. In late 2021, I found out through a senior person in the department that over 70 charges were not being proceeded with by the Public Prosecution Service of Canada. If you have no consequence to an action, then the problem only grows. I called up the provincial director of the Public Prosecution Service of Canada to discuss this with him. I said that I read his desk book about following prosecutions, but a natural resource was being plundered here, and the fisheries habitat and private property were being violated, while violence was occurring and public safety was at risk. Yes, the First Nations have rights on this issue, but they cannot trump all the other elements that decide when to proceed with a prosecution. Finally, I said, “Our workplace is unsafe now.” He said, “I’ll make a note of that,” and he hung up.
Basically, it was an outrageous statement that set the course for the next two years of enforcement. He would not proceed with Fisheries Act violations against First Nations individuals. He was quoted by local DFO officials as saying, “I will not proceed with charges against First Nations individuals until they represent a meaningful share of the fishery.” Basically, it’s a statement that fetters the minister, as well as the powers and decisions of the department and the actions of the department. It has led to this international debacle that we’re in today. When you back up and look at this issue, it’s difficult to say, “How does he have a right to make a policy decision of that nature?” Without bounds, any laws get abused.
At this time, I’d like to really talk, just for a second, about the enforcement officials in the Department of Fisheries and Oceans. The minister has, in effect, insulted us for commenting on the management of this fishery, thinking that we were insulting the enforcement. It’s not the enforcement that’s the problem in this fishery. This fishery could have been enforced reasonably and effectively if the enforcement officials had the support they need from the department with proper licensing and policy structures, and also from the Public Prosecution Service of Canada with the follow-up.
I have personally dealt with 21 ministers in my time working as a fisherman, and this is one of the worst ways we’ve ever been treated. She is not even willing to listen to our side of the story, or about the problems with the management of this fishery. She wants to try to focus on the fact that we’re criticizing the enforcement. No, I’m not criticizing the enforcement; I love the enforcement, but the enforcement’s hands have been tied here. These people are trying to do their jobs. They are out there in difficult situations, at night, facing people with weapons at times, and the minister calls them racist. I guarantee the morale of the department right now is very low. I’d like to make the point that we’re not saying the enforcement is bad. We’re saying the management has allowed this to get out of hand, and the enforcement can’t put this demon back in the box, so to speak, without the proper legislation. You had Commissioner Keliher from Maine here. I’ll get back to that.
The next failure in this fishery is the failure of DFO headquarters. DFO headquarters has had 24 years to put regulations in place to define a modest livelihood. It’s not really to define it — all you really have to do is put a regulation in place that says a modest livelihood is a right and guarantee, but it has to be within a conservation structure. That’s all people ask for: conservation.
We support the integration of First Nations within the fishery. We just wish that the department would follow through on a willing buyer-willing seller approach instead of coming to us and stealing our quota away. We support the integration. We work cooperatively with our local bands. We’ve given up river systems for them; we’ve helped them. It’s the bands from outside — five or six hours away from our area — who have caused us a real problem.
DFO headquarters has failed for 24 years to put in modest livelihood regulations. The other issue is that it’s been almost 20 years that they have failed to make a decision on the listing of this species as a species at risk. The species is not endangered; it’s not threatened. It’s a species that exists from Greenland to Venezuela. It’s a panmictic species that spawns in one location. The product of the reproduction goes to all habitat that are available through oceanic distribution. There’s a great piece of work from Université Laval that shows about 50 million to 100 million animals spawning genetically every season. That is not an endangered animal. Certain interests created a flawed recommendation, and the ministry failed for 20 years to deal properly with species at risk. A couple of months ago, they called and said, “Remember that consultation we did with you three years ago? We want to update that; we want to refresh that.” I have a copy here that I can leave with you, but we submitted another submission about the species at risk process and what we feel about it.
Within this context, and the fact that they were not proceeding with charges, it really did become a circus on the rivers. In 2023, people started arriving from all over North America. We personally encountered people from a number of different states and provinces. However, in talking to other licence holders, there were people here from B.C., Ontario, Quebec, Vermont, New Hampshire, Maine and New Brunswick, fishing in southern Nova Scotia, and claiming a modest livelihood First Nation right. Again, we see the vacuum of regulation. The hands of enforcement are tied by a prosecution service not willing to proceed, and we just have a circus. The enforcement people are not to blame here.
This kind of evolved in the 2023 season to what we call a catch-and-release system, where they were educating people and issuing warnings. We encountered one guy on a river from Parrsboro, I think, and he had four warnings.
I guess we now end up in this situation where the department, over the last few years, has tried a willing buyer-willing seller approach. They rejected that because they had some consultant’s report that they won’t release. For two years in a row now, they have taken 14% of our quota and given it to the First Nations. Again, we have cooperated with local First Nations. The First Nations in our area and in New Brunswick were the beneficiaries.
In 2024, we now find ourselves — the First Nations and us — out of work. About 1,100 people are out of work — about 200 of us. Shelburne Elver has about 40 T4 slips every year. About 50 households in the county depend on it. I can’t speak for the rest of the licence holders or the First Nations, but about 1,100 people are affected.
You are the shareholders of this public ship of state — this company of state — that produces economic wealth for our country. Imagine you had a manager or a CEO who ruined $100 million of economic activities, mostly in Nova Scotia and in southern New Brunswick, and had three closures over the last five years because of mismanagement. Furthermore, 1,100 people are out of work. That is $100 million in two rural provinces. If you were the CEO of a company, wouldn’t you be fired for that?
This is what 20 years of mismanagement looks like. Again, I’d like to support the enforcement officials — they’re even being insulted by their own minister — but, after 20 years of mismanagement, we now find ourselves out of work. They are going to take away more quota from us in the process called “redistribution of economic benefit” somehow. We really don’t know what our future is, or whether we will be allowed to go back fishing again. Bear in mind that we are just a bunch of reasonable people from Shelburne County who started this thing, learned how to catch and to hold them, learned how to ship them to China, Hong Kong, Korea, Taiwan and Tokyo, and make money for our country — and now we’re being stopped.
We’ve really tried. We have people in our group who have a wealth of experience in Maine. Mitchell Feigenbaum is a buyer in Maine. We’ve been telling this department for years about what they do in Maine. They’ve known about it for years. Last fall, they took a junket. Commissioner Keliher came down and talked to you guys. Maine took decisive action when they had a similar problem. The penalties there are about $25,000 for the first offence, criminalization and jail time for next offences, forfeiture of licence and things like that. They took it seriously. They cleaned up the situation.
I would like you to focus on the fact that this is a colossal series of mismanagement, fettering the hands of the minister to make decisions and tying the hands of the enforcement branch of the department. They’re now saying we’ll have a traceability system with possession regulations, but possession regulations are nothing compared to some serious penalties.
Currently, under the Fisheries Act, I can show you the inculcation files. Most fines are $500 to $5,000. That’s one night’s work for a dedicated poacher. They’re not even taking new vehicles to the river now, so forfeiture doesn’t mean anything. They’re taking rented vehicles, or old used vehicles, or being dropped off by somebody else. A $500 fine does nothing to stop serial poaching and, within that context, people who feel they have a right to abuse a natural resource — when, clearly, the Supreme Court of Canada said that conservation must trump everything.
I apologize for going on and on. I have some copies of this — I didn’t exactly stick to the script, as you said — and I also have a copy of my complaint that I filed in February against the Public Prosecution Service of Canada. This is 10 pages. We received a reply from the Department of Justice a little while ago that stated:
By way of follow-up to your previous email, I am informing and can inform your client that we have appointed a general counsel from outside the PPSC’s Atlantic Regional Office to investigate this complaint.
I’m trying my level best to push, cajole, complain — do whatever I can — but we would like your help to try to focus on the policy and the regulatory vacuums that exist here before we can re-establish control. Thank you.
The Deputy Chair: Thank you very much, Mr. Giroux. I appreciate you taking the time. I have a list of people who want to ask you some questions.
Senator C. Deacon: Thank you, Mr. Giroux, and thank you for being here, Mr. Townsend. We will start with law, order and good government. That’s what Canada is supposed to be, I think. Yet, we don’t have law, we don’t have order, and, in this situation, we certainly don’t have good governance.
You have tried to educate 21 ministers of DFO. This is a non-partisan problem equally divided in terms of no one being able to get the bureaucracy under control. They’ve had how many years to deal with the Marshall decision and put regulations in place? This committee has touched on lobster and found problems there with the Peace on the Water report, and we are coming out with a report on mismanagement of the sealing industry. Here we have the elver fishery with, fortunately, no one hurt or killed yet. We heard from Commissioner Keliher that Maine acted. You brought it to their attention, but there is a sort of defiance and a disregard for best practices at DFO.
Help us focus on what we can do here. We are with you, I think. I can’t speak for my colleagues, but, from the initial testimony that we heard, we were very much of the mind that something needs to change. It is achievable. Maine has proven it can be done. My favourite saying is this: “Those who say it can’t be done should get out of the way of those who are doing it.” We can do it.
How can we help?
Mr. Giroux: Well, again, enforcement is trying to do its job. The long-standing issue of no modest livelihood regulations has left us with a backdrop here of a rising tide of people who feel they can operate in any way they want to. The incidents in our area are mostly bands from hundreds and hundreds of miles away, not the local bands. As you said, we have a cooperative relationship with the local bands, and try to work with them. We submitted proposals to try to help them into entry, but the department refused them. I handed it to Bernadette Jordan myself, and the department didn’t even answer. Somebody sets the policy and direction for the department, and then the local people follow through on it, but certainly the lingering Species at Risk Act, or SARA, issue must be put to bed. This is a wide‑ranging species. America has gone through this exercise twice in the last few years. They say, “No, it is not a threat or endangered species, but basically a reasonable population at a lower level than historic high biomass. So it’s still a reasonably exploitable species.” That has to be put to bed. The government has insisted that we can’t go above the current total allowable catch, or TAC, until that issue is finished.
We can go above the current TAC if we put that issue to bed. Even if we follow the management plan, we could come up with retirement of adult eel licences, like we did to create our company. That would create another group of access for First Nations individuals. By putting the species at risk issue to bed, and by looking at the management plan seriously and saying, “Right, there are options here to create new quota,” like the proposal I submitted with the Acadia Band to try to create access for them — these alone could create maybe 5,000 to 6,000 kilograms of quota. Right now, the current quota is 9,960 kilograms, so it’s almost 10 metric tonnes. That would create more access available to First Nations.
At the beginning of the Marshall process, the government said that they would try to acquire commercial access. It has been successful for some groups, but not for others. Some groups get access and allow the fishermen to go fishing, and that’s their modest livelihood. It was a good concept. But somewhere along the road, they allowed the bands to start leasing their licences. There are many instances now in our area in which the licences are not available to the First Nations band members. They are being leased by the chief and council for money, cash or whatever. You have these perfectly good opportunities, where an individual could go make a modest livelihood on a licence that the band owns, but they are leasing it and not allowing it.
The concept was good, but the follow-through fell down a bit. Then, the department said, “Well, we will go on this willing buyer-willing seller route to try to gain access.” The Supreme Court said that we have some rights here. We have historic dependency, regional fairness issues, et cetera. The willing buyer-willing seller concept is great. But when it came to the elver fishery, they ran out of money. They said, “For any of us who submitted bids, we went to a reputable accounting firm, saying here is what our books are.” And they said, “Well, the value of your licence is X.” The government doesn’t even return our calls for eight months and then gets a sham consultant’s report that they won’t release, and then they just start taking our quota away. That take from us — for two years — was $1 million a year from our cooperative.
We are taxpayers, so you have to realize that half of that is just coming to the Crown in taxes. The approach is that we should get back on track. We should regulate in a very general sense so that we have a backstop for negotiations. Right now, some bands are not willing to negotiate anything. They claim to have a right to do whatever they want, and they will go and do whatever they want, without reporting catches, without paying attention to conservation rules, and fishing right against fish ladders and dams and you name it — breaking every conservation rule in the book. That’s not right. We have to regulate in a very simple way, and try to get back to the good faith of government to say, “If you are going to destroy our business, you should at least try to compensate us a couple of dollars.”
The Deputy Chair: I really appreciate your answer. And we can continue on the second round.
Mr. Giroux: As you can tell, I am passionate about this.
The Deputy Chair: Yes, we appreciate your passion. It is definitely showing, and we appreciate what you are going through.
Senator Petten: I am wondering a little bit about Shelburne Elver Ltd. As I understand from the material that you submitted, it is a cooperative, and you have 17 members. Do you sell as a group to just one person, or how does that operate from the elver fishery? I’m trying to get my mind around how, even though you have 17 members, I imagine that doesn’t mean that you would have a number of fishers who would sell to you outside those members. I’m not sure how it works. In previous testimony, as I understand it, there are 900 licensed Indigenous fishers and 200 licensed non-Indigenous fishers in all of Nova Scotia and New Brunswick. It’s big, and I can’t get my head around that.
Mr. Giroux: We agree to sell as a block. I will usually contact buyers all over the world and hold an auction. I give a count, which is important to the farmers, who want to know how many animals per kilo, because they grow them. We package and deliver the product ourselves and then we have a closing date, and I accept the highest bid for our cooperative.
In the other numbers — yes, as far as I understand it — the First Nations sell individually, but there are two or three buyers in the local area who buy from them, so they would sell their catch like they do in Maine. I don’t know if you have seen the news and information out of Maine. Individuals go into buying stations and sell their catch for the night. The other non-Native licence holders in our fishery are usually family-operated businesses, and they do what we do: They auction them off. There are usually one or two major buyers who are willing to come and pick them up. We are the exception insofar as there are only two or three of us in the fishery who actually fish and pack. You may be familiar with Louis MacDonald, who directly sells his own catch as well. So there are only a few of us. The others are mostly selling to one or two of the local buyers.
Senator Petten: These are mostly non-Indigenous licences that you deal with?
Mr. Giroux: Yes.
Zachary Townsend, Plant Manager, Shelburne Elver Ltd.: If I may, first, I want to apologize if I am twitching. I have Tourette’s syndrome, and it’s not always easy to control in situations like this. If I could just speak further about Shelburne Elver, we have a situation in which when many people from DFO are testifying to the House committee, they are saying things like, “There are eel barons.” It’s hurting people like us. I went to the House committe and told them my personal story. I explained that my partner passed away from cancer just six months ago, and about the added challenge of having lost my job, having no financial support and being unable to claim Employment Insurance. We found out that we wouldn’t be able to work only a week before the season would have started, putting us in a really bad situation. There are so many people in this fishery who are young — in their twenties and thirties. For example, my brother is 25 and has a six-month-old baby and is looking at declaring bankruptcy. I just received an email saying that my bank account is $400 in overdraft, and I don’t know how I’m going to pay for it. I couldn’t pay this month’s rent. There are so many other stories: Adam Reiss and Kelly MacGillivray are a young couple who have dreams and ambitions, and they are still reeling from the closure last year after only two weeks. Thia and Tahja, who are young fishing sisters, have hopes and dreams. They just want to do what they do best, which is fishing. Tristan and Mercedes Atwood are young licence holders in our group. Alex Cotter and Nigel Bower — all these people are in their twenties and thirties, and they just want to fish. I understand the policies that this government is pursuing — some of them are even noble, and I agree with them — but I think we are all having a hard time understanding why we have to shoulder the burden of that. I don’t understand why we have to pay with our future to do what is right, because isn’t that what the government is there to do?
The Deputy Chair: You have made your point very well. I appreciate your input.
Senator Cordy: Thank you for telling us what you did. They are very personal stories affecting the lives of many people, not just from Nova Scotia, but all over. Thank you very much for that.
How did we get from the final Marshall decision in 1999 — moderate livelihood, and all of that, was understood? Is it that the department officials have been ignoring it all along, or taking no action, or taking the wrong action? How do we solve it?
Mr. Giroux: I certainly think that the five-year abuse of the FSC licence set the stage. You only had one or two individuals at the beginning, but you had almost 500 people at the end of the five-year period. That was a flaw of the local department to sit down and reason. Maybe it takes a year or two, but certainly five years of not being able to effectively — and then after the closure in 2020, suddenly it’s done.
There is kind of a dichotomy here, where the public policy of the department is to try to deliver. I have a friend who used to be one of the negotiators, and he said to me, “Brian, I have an impossible remit. I’m supposed to deliver the right without defining it.” In a general sense, maybe some of these abuses or ignoring of the issues are an attempt to deliver it by default; that way, we don’t get into sticky issues of having to charge people and negotiate tough agreements.
I think that some of it has been kind of a default method to deliver, and some of it is just that we are a very small, seasonal fishery. We are not as large as the lobster fishery and other fisheries that have literally thousands of people involved. I think some of it is on the back of the desk in somebody’s envelope, and it doesn’t get looked at until weeks before the season begins.
Senator Cordy: Which is unfortunate, because that is what happened this year when people were ready to go and it was cancelled.
As you mentioned in your comments, we heard from Mr. Keliher from Maine about what they have done. It seems that it has been successful. Is that a model that Canada could follow?
Mr. Giroux: For sure. The government now talks about extending the benefits of the fishery and, like we say, it is too bad they have run out of money, but we can create quota through the other ways I have talked about.
In Maine, they have a fob system. It used to be swipe cards. An individual is licensed for a certain amount of fish, then they catch it, they go in and they sell it. It’s registered. Their packing and shipping system is reasonable to us, but it may need a little tweaking for our local supply. It is difficult for me to get a fishery officer at three o’clock in the morning when I have to pack to catch a plane that’s leaving Halifax at 7 a.m.
The important foundation, as I said, are the penalties. You have to have serious consequences or else it will be —
Senator Cordy: It will not be good for anybody.
Mr. Giroux: Yes. This is a tremendous natural resource. We could increase the quota, as I said earlier, by five to six tonnes.
There are a few of us who have invested $10 million. We are very small players. For Michael — Mr. Townsend’s father — and me, in our group, we have put in some money with other licence holders, and we are about to start a farming business, or we are trying to. We have invested almost $10 million for concurrent FDA and Health Canada applications and to approve a diet, and then we will start farming. In Canada, we will catch this animal, grow them and process them into a kabayaki product, and we will sell it to the North American market with an FDA and Health Canada-approved product. It’s a $2 million annual potential business, and this is being thrown into jeopardy, too. I would like to be able to start building a farm in Nova Scotia next year, if we could. New Brunswick and Nova Scotia are the potential places we want to start. There is a farm in Maine right now that is begging us to help.
There is so much potential. If we get this thing organized, it is a half-billion-dollar industry that we could safely and reasonably have in this country to catch, produce, export, fulfill the marketplaces and do it in a sustainable manner.
Senator Kutcher: Thank you both for being here and helping us think through this vexatious issue.
We discovered that although DFO had been aware for quite some time about the successes in Maine, it was only years and years after they had become aware that they actually even paid enough attention to learn about it. We clearly have a substantive issue there.
This is what I’m interested in here: Over the last five or six years, what has been the negotiation process? Has there been a negotiation process? If so, what kind of a negotiation process has there been? What are the tables that have been set? Who has been involved, and what have been the outcomes of those negotiations on these elvers?
Mr. Giroux: You have to understand that the Government of Canada is dealing with this on a nation-to-nation basis. Even Joyce Murray — minister number 20 whom I dealt with — said a consultation decision is in place that is very limited in terms of talking to non-First Nations about First Nations issues.
There are basic silos within the department. The silos are such that we don’t understand what they’re doing. We’ve submitted proposals, and we’ve done our own work with First Nations to try to submit proposals. We worked with the local bands in New Brunswick and Nova Scotia to try to submit proposals. Those proposals were not acted upon. We are kept separate in the department. There’s a silo for First Nations nation-to-nation discussions, and then there is us: the non-First Nations. In fact, now they use a different verbiage with us. They don’t say they are “consulting” us anymore; they use the verbiage that they “engage” with us from time to time. I can’t tell you what the negotiations are with First Nations and the Department of Fisheries and Oceans.
Senator Kutcher: If I understand it correctly, over this period of five or six years, there has not been one single point where the people involved in this fishery have had a chance to sit down together and have a frank and open discussion about how this could be addressed.
Mr. Giroux: We did have some kind of a workshop last year in that regard. Both groups had complained, and we had a workshop in Dartmouth. It was amazing. There were some of us who had much in common. I had been working with some of the Acadia Band, and Mitchell Feigenbaum had been working with some of the bands in New Brunswick. Now we have a better understanding, and we have some informal links with the [Technical difficulties] but it is not very formal. For the workshop in Dartmouth, there were some bands that were very interested in building relationships, and some bands that were not. A separate discussion was required, and that sort of thing. It did yield some — I think the first point was that both groups were dissatisfied with DFO.
Senator Kutcher: That’s unusual.
Mr. Giroux: Yeah.
Senator C. Deacon: That’s quite an accomplishment.
Senator Kutcher: Just so I understand correctly, you are discussing a workshop. What you are not discussing is a negotiation process. If I understand all this correctly, although DFO has been aware of this contentious and important issue for at least five to six years, if not longer, there has not been a negotiation process that has been put into place that brings the parties together to seek a common solution?
Mr. Giroux: Only that workshop. It was structured to deal with sharing rivers, or this or that.
Senator Kutcher: Workshops are not negotiations.
Mr. Giroux: No.
Senator Cuzner: Mr. Giroux, I absolutely agree with your perspective coming out of the Marshall decision. Some really good things have happened through access to the crab, lobster and shrimp fisheries and those resources, where the government came in and helped with training and equipping. The access was purchase — willing buyer-willing seller. It seemed to be something that was of benefit to the traditional fishers, who saw equity in their enterprises really rise, but sort of granted access to First Nations communities. We’re seeing — 20 years later now — some affluence and the great benefit through communities. I know that around my place, Membertou and We’koqma’q and these communities are really benefiting.
In your reference to the willing buyer-willing seller, obviously your group has advocated for that. It’s money that seems to be the obstacle here. The department is saying, “We don’t have money.” It’s not against the principle of willing buyer-willing seller?
Mr. Giroux: I think it’s the money, actually. To be truthful, just to back up a little bit, our group submitted a proposal. You have to understand that when you’re doing that, you’re surrendering your access forever, so to speak. We have many younger partners coming in now — multi-generational as the generations change over — so our group really wasn’t that interested in submitting proposals, but there are other licence holders who were. They were getting a little older or whatever, and they were interested in selling out.
We submitted one. A number of other people submitted. The department, like I said, waited eight months and then they engaged a consultant. They won’t show us that report on methodologies. Most of us used accountants to get some kind of submission together. They said they were going to do a second round, but, two weeks later, they said no and they were simply going to take it away.
The one thing they did say was — in some of the court cases we’ve been involved in — what most people asked for was just too high. But again, you’re talking about forever surrendering access to a business that you’ve built up and developed for over a generation — for 25 years, we’ve fished now. So some of them would be reasonable numbers, so to speak.
Now, basically, the government has changed their language and they’re kind of characterizing us, as Mr. Townsend said, as eel barons and wealthy and whatever. I guarantee you that I give Revenue Canada a healthy cheque every year when I’m allowed to fish. They’re trying to characterize us as greedy and eel barons, and that we have too many benefits. But you know what? Fifteen years ago, when the price was this —
Senator Cuzner: I think that’s probably part of the success that we’ve seen in lobster, crab and shrimp. There’s a respect given to the people who have built those sectors and have developed those markets. There’s a respect for the science and the data that has been compiled and applied over the last number of years, so they’re comfortable within that realm.
I think the potential in this fishery, when you combine that with traditional knowledge — the two-eyed seeing approach to developing science around a sector — seems to be there. I’ll commend that it’s not perfect in the other sectors, but you have to give DFO some kudos for how they’ve approached that. It just seems like a swing and a miss on this particular issue, and that’s truly unfortunate.
Mr. Giroux: The spill-off is in lobster too. There’s definitely some insecurity in lobster too now.
Senator Cuzner: The enforcement issue seems to be better. I read an article where Mike Townsend commented, and he seemed to be saying, “Okay, there are boots on the ground and enforcement this year.” Is that your take as well?
Mr. Giroux: For sure. As I said earlier, I have no complaint about enforcement. They’ve been given a bad remit. One hand was tied. They’ve done their level best this year, but things went into a bit of a hiatus early on because of an incident, with the minister kind of accusing them of racism and then launching an internal investigation that upset some of the momentum.
But definitely, there was even recently — last week — a really big bust in my area of a local gangster type. They found guns, cocaine and over $100,000 in cash. This is what we’re talking about here. Once you have money involved, these officers have to go into quite a dangerous situation. It takes some time, and they need RCMP backup at times. But again, it could have been a lot less of a problem if we had strong penalties and started doing this four or five years ago.
The Deputy Chair: I have a question before we go to the second round, if you could indulge me.
I’ve been listening intently to all that’s been said about the closure. Perhaps to clear this situation in my head to get around what you’re dealing with, the fishery for elvers is closed. Does that mean the only people there now are poachers?
Mr. Giroux: Yes.
The Deputy Chair: If there are people present on the river, they are poachers. How do they move their product to international markets?
Mr. Giroux: Well, the way we pack our eels is we hold them in tanks, and then we weigh out one kilo amounts. We put them inside a plastic bag that has a little bit of water and oxygen in it. It’s like a balloon of oxygen and water with a kilo of eels. Then, we put that into a Styrofoam lobster box that has gel packs in it to keep it cool, and then put it inside a cardboard wrapper and deliver it to the airport.
That box, for all intents and purposes, looks like any other seafood box that’s being handled — thousands per day, in some respects — going out of Halifax to all points east and west in the world. It’s difficult because the only real difference is the weight.
I have seen the X-rays of one of the systems that the Canada Border Services Agency, or CBSA, uses, and it’s soft — you can’t tell the difference between a box of lobsters and a box of glass eels. But they have another type of scanner with a different X-ray band, where they can detect the difference between lobsters and eels, but they don’t have a lot of those. For all intents and purposes, if a shipper delivers to the airport a pallet full of boxes of lobsters, and maybe one or two of those are glass eels — boom — they’re shipped out of the country.
By and large, the largest amount of things going on are being trucked to Montreal and Toronto. They’re trucking these animals to Montreal and Toronto in larger tanks on the back of a truck, and there’s far less scrutiny there because DFO has little to no presence in Montreal and Toronto. I think DFO has four fisheries officers in Ontario, and they’re in Hamilton, and that sort of thing.
By and large, they’re being trucked out, and then it’s simply the same thing: labelled as something and then shipped out. For the people in Central Canada, the volumes are so much larger that they’re not paying as much. The CBSA tends to keep its focus on imports.
We do report all things in paperwork. It’s a traceable system now, if you really want to pay attention to the information I provide. I’ve got air waybills, invoices, plane tickets and an export licence. It’s all traceable now, if you really want to pay attention. All that documentation is provided, by the way, to the airline, the truckers and the Department of Fisheries and Oceans.
The Deputy Chair: If someone put their mind to it, it would not be difficult to detect the difference between a shipment of lobsters and a shipment of elvers? It would be a reasonably easy thing to do?
Mr. Giroux: Weight alone. A box of glass eels in a lobster box would weigh about 8 kilos, while a box of lobsters would weigh about 25 kilos.
The Deputy Chair: Correct me if I’m wrong — and I’ll just say this to maybe get it on the record — if there’s no ability to ship out of the country, you have no poachers?
Mr. Giroux: Yes.
The Deputy Chair: Thank you very much.
Senator C. Deacon: Again, thank you, Mr. Giroux and Mr. Townsend, for your compelling testimony. I want to pick up on that.
A colleague of ours, Senator Jean-Guy Dagenais, wrote a letter to the Prime Minister about this, specifically asking about who’s doing the policing at our borders. From your side, can you talk about where you have spoken? You just described what you have to adhere to in order to have an export licence. Somebody else is putting their export licence at risk, but they know they’re not going to get caught. Does that sum up what you said? This has been explained to DFO?
Mr. Giroux: Yes.
Senator C. Deacon: They understand this? No doubt about it?
This is the extent to which the regulator is now not engaging with the regulated industry participants. It sounds like they’re down to a point where they held a workshop, but no one got to any agreed decisions, or agreed actions, at the end. That wasn’t there. They just basically heard recommendations, and then went away and said, “We’ll decide.” But they don’t decide.
Mr. Giroux: No, they did make a decision at the end which was to close the fishery.
Senator C. Deacon: Yes. How many times — if you can just sort of recap over the last 21 ministers — have the department officials recommended Maine’s system to a minister? The minister isn’t necessarily as empowered as they need to be, and it’s not getting the attention higher up the political ranks. How many times have key decisions been avoided, as it relates to starting to bring the Maine system into Nova Scotia? We have had opportunities to get this right. How many times, over the years, do you think you have seen key decision points missed by DFO? Maybe you can list them, or is it just impossible?
Mr. Giroux: I guess I could say that, yes, I have worked in this aspect for many years to try to affect the policy and direction of government, but oftentimes we don’t really know what goes on in the final briefing notes and in the final discussions and recommendations. For example, I submitted an Access to Information and Privacy, or ATIP, request about two years ago, after the first closure, to get a certain block of information on communications. Well, DFO said, “That’s going to take us two years to deliver.”
I complained to the commissioner who is responsible for access to information. The commissioner ruled in my favour and said, “Yes, that’s an unreasonable time.” That was six months ago, and I still haven’t seen it.
I submitted another ATIP request the other day for the same block of communications in the subsequent year. Again, they expect it will take two years to produce. This is not a significant request. This is just communications between officials.
Senator C. Deacon: So they’re actively avoiding engaging with the sector?
Mr. Giroux: That’s what the commissioner said as well.
Senator C. Deacon: I don’t know what else to say. Thank you.
Mr. Giroux: Just as a follow-up, we’ve also launched a lot of court cases and judicial reviews on some of these decisions. It’s such a narrow thing. We’ve lost the first one. There’s a second one in train. We just got a positive response on one that was launched by Mitchell Feigenbaum for the quoted decision in 2024. The judge actually agreed, saying, “Yes, we have to go into this and do a more thorough judicial review of that.”
Really, to get almost anything out of this department, you go to ATIP. ATIP is dysfunctional, at least, when it comes to this department. To go through the judicial review process, it costs hundreds of thousands of dollars for lawyers to do the discovery process and get evidence production.
There is evidence that the evidence production is kind of manipulated. At least in the last one, it looks like they cut‑and‑pasted things from some official documents that shouldn’t quite be in a briefing note to the minister. It’s a serious claim, but we’re really not in the loop. They really don’t tell us much. To try to even find out what’s going on, you have to wait about two years. When you get your ATIP, it’s redacted black half the time.
The Deputy Chair: Thank you very much, Mr. Giroux.
Senator Petten: Last week, on CBC News, Paul Withers wrote a piece about the elver fishery. This is part of what was in this report:
Fisheries and Oceans was supposed to have new regulations to bolster oversight of the fishery in time for the 2024 season, but missed that deadline.
DFO policy manager Marc Clemens outlined the new possession and export licence requirements that will take effect in time for next year.
They will spell out when, where and how elvers can be moved within and exported from Canada.
They will require verification by a fishery officer of export container packaging, weighing and sealing.
Mixing legally caught Canadian elvers with foreign caught or unlawfully collected Canadian elvers will be an offence.
Obviously, they’ve been doing some work on some of the things. I know that Minister Diane Lebouthillier put out that they were looking for views on how to do a safe fishery for this year because what they’re really concerned with is safely managing the fishery.
Did you put forward your views to the minister on a safe fishery for this year? I know you’ve had all these issues, but are you simplifying it enough regarding all these great solutions? We’ve heard today how frustrated you are with this fishery. It comes down to finding the viable solutions from your perspective and how to deal with it. Obviously, you have a great grasp of this industry. How do you move it to the next step and find those solutions by responding to the minister and her request?
Mr. Giroux: We started consulting about these regulatory changes in the fall of last year. We were told that they would be in place for the 2024 season. There are requirements for a possession permit and for the packing. The only thing that would change for us, in a general sense, would be that I would need a fishery officer present when we pack. Right now, we have dockside monitoring present, through an independent, arm’s length group that monitors the landings.
In our recommendation for this season, we’ve given them more than enough. Imagine you have 500 rivers to monitor. Our fishery — with the First Nations interests and us — would probably occupy about half of the systems in the fishery. If you had a licensed fishery available this year, you would have about half of the systems occupied by legal, licensed people.
The department basically said no. You could have half your systems monitored by legal people, and the other half would be where you send your enforcement officials. They rejected that as well. They didn’t have to stop all of us.
Senator Petten: It sounds like they’re looking for end users, even when you get to the export area, rather than drawing, to nip it even before you can get out there.
Mr. Giroux: It doesn’t quite stop it because you would need a possession licence. Guess what? I have a possession licence right now because our people have a licence to fish, on the condition that they have a copy of it with them when they fish. Yes, we would have a possession licence for our plant, and a possession licence to export.
What they’re trying to stop, I think, is if they happen upon somebody who has an elver holding facility which would be illegal without a licence.
Senator Kutcher: I was going to ask about the judicial review processes, but you’ve already addressed that. Thank you.
Mr. Townsend: If I could add, when the minister made this decision, she didn’t meet with any of the 1,100 who lost their jobs, as you all know. In protest of that, I put up over 1,000 posters in over 100 communities throughout Nova Scotia, New Brunswick and Quebec, including 150 in her home riding.
Dealing with this minister has been so frustrating because she’s actually started to refuse to answer any of the media’s questions about elvers. They’ve said they won’t be available to comment about it. They’ve actually started censoring comments on her social media accounts from elver fishers who are politely asking her to consider opening the fishery. The only time she’s actually talked about this was about two days after I testified to the House committee. In regard to my personal story that I told you about a half hour ago, she did a testimony, and she characterized elver fishers as “despicable and outright irresponsible,” and implied that we’re encouraging crime by talking about the historical lack of enforcement.
I wanted to say how hurtful that was after I told a very personal story at that committee, where the only thing she would say is that we’re “despicable and outright irresponsible” people. This minister has just been — I’m sorry, but it’s just been so frustrating to deal with her because it’s like we’re talking to a wall. It’s impossible to get any sort of meeting with her. I don’t understand why she would take away our jobs and not talk to any of us. It’s very hurtful. Thank you.
The Deputy Chair: Thank you very much for sharing that with us. I appreciate that. I want to thank you, Mr. Giroux and Mr. Townsend, for taking the time to appear before the committee today.
This was incredibly informative and fruitful, and we appreciate the passion and frustration that you bring to the table and how difficult this is for you.
Mr. Giroux: The House of Commons committee voted a week ago to support our request to reopen this, or for the minister to reconsider. I wonder if I can ask you guys to support us in the same or similar manner.
The Deputy Chair: If I may speak for the group, you can tell from the questions that were asked that we certainly have a collective ear to your issue, and we’ll discuss, as a group, our next step.
Mr. Giroux: The season is not too late. We can still salvage something by the end of the season. Water levels were so high early in the season that they’re just starting to come down now. It’s difficult to fish in high water levels.
Mr. Townsend: What are we going to do without being able to salvage the season? I’m sorry.
The Deputy Chair: Thank you for taking the time. Safe travels home.
(The committee adjourned.)