The Epic Fight Over the Enigmatic Eel

Prosper grew up fishing eels with his older brother in Paqtnkek [BUTTON-kek], a community of around 560 people about 20 minutes east of Antigonish, Nova Scotia. The name means “by the bay” in Mi’kmaw. Prosper, a former band chief, is often cited as Atlantic Canada’s leading expert on the Mi’kmaq and knowledge holder on the American eel, and he’s certain eels aren’t being well-managed—proof for him that Fisheries and Oceans Canada (DFO) is putting commercial profits for non-Indigenous fishermen ahead of his nation’s treaty rights. While not suggesting the commercial eel fishery be shut down entirely, Prosper argues that any decision about the future of American eel should include Indigenous rights at its core, not as an afterthought.

Eel, or kat, was a fundamental resource for Prosper’s ancestors. Historically, First Nations have fished eel across Atlantic Canada and all the way up the St. Lawrence River to Lake Ontario. They corralled eels in stone weirs—some dating back 4,000 years—and speared them in shallow water, through ice holes in winter and from boats in summer. The Mi’kmaq ate the fish stewed, baked, smoked or dried. Healers used eel to soothe the sick, applying oil to help with earaches, while craftspeople used eel skins to bind everything from sleds, moccasins and clothing to spears and harpoons.

While eel is no longer a mainstream protein in North America, it was once prized by colonial settlers, particularly Acadians and Quebecois. They copied Indigenous techniques, pushing their skiffs into the night and shining a torch in the water to spear or net eels in enormous quantities, often preferring the delicate, sweet meat pickled.

As the communities coexisted, settlers intensified the fishery as cultural Mi’kmaw eeling declined. In a study Prosper co-published in the early 2000s in collaboration with a local university, he discovered that young adults are far more likely to eat eel at their parents’ and grandparents’ homes than their own. So he started leading spear-making workshops, teaching Paqtnkek youth where to find eels, and how to catch and cook them in an effort to preserve that knowledge.

When Prosper launches his eel-fishing boat, it’s from the sandy, marshy beach of Pomquet Harbour, minutes down the road from the Paqtnkek band office. It was here, 24 years ago, where the arrest and eventual exoneration of Donald Marshall Jr. codified the Mi’kmaw, Maliseet, and Passamaquoddy nations’ rights to fish commercially in Atlantic Canada and Quebec.

What few Canadians know, says Prosper, is that Marshall was fishing for eel.

In August 1993, Marshall, a member of nearby Cape Breton’s Membertou First Nation, caught and sold 210 kilograms of eel to a local buyer for $787.10. He was charged by DFO with fishing without a license, selling eels without a license, and fishing during a closed season, and his equipment was seized. Membertou, like Paqtnkek, is part of the Mi’kmaw nation, the Maritimes’ largest regional tribal group, and that nation rallied to his defense.

It was a double injustice. Marshall had already served nearly 11 years in prison for a murder he didn’t commit (he was later exonerated), and upon his release turned to eeling to make a living. His legal team—including Prosper’s younger brother P. J., who was a law student when the case began—maintained that Peace and Friendship Treaties signed in 1760 and 1761 gave their communities treaty rights to hunt, fish and gather. It took six years for the Supreme Court of Canada to rule, and when it did, it ruled in Marshall’s favor.

“The Marshall [decision] created a real uproar in the commercial fishery,” says Prosper, who, shortly after the ruling, traveled throughout the region to explain it to non-Indigenous fishermen. “This really showed me what people thought about our treaty rights, and how they change when you seem to be impacting their money.” He faced down crowds of angry, worried fishermen.

By the mid-1990s, fishermen in the region were reporting shrinking catches, but it was nothing compared to what was happening to other eel species overseas. The Japanese eel population, which had started sliding in the 1970s, had collapsed. European eels were in free fall by the early 2000s. Environmental groups warn the same thing could happen in Canada if the government doesn’t list the American eel as threatened under the federal Species at Risk Act (SARA), a call that must be made by Canada’s entire federal cabinet. A SARA listing would automatically prohibit killing, harming, harassing, possessing, collecting, buying, selling or trading American eel in Canada.

Within a year of listing, DFO would develop a recovery strategy, which could include permits or exemptions for commercial and recreational fishing, Indigenous or otherwise, and other activities affecting the fish. Or—to the dread of commercial fishermen—no exceptions at all.

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Mitchell Feigenbaum sits at an old dinette table, a battered remnant of a country market and restaurant he recently bought on the outskirts of Port Elgin, New Brunswick, and sees the future. In it, his company South Shore Trading, North America’s largest eel buyer and exporter, no longer has to exclusively sell baby eels to China. Feigenbaum, a former lawyer with a shock of coarse white hair, is wearing jean shorts and a red-checkered button-up. He moved here from Philadelphia about 18 years ago, but hasn’t lost his Philly patois or ability to spot a business opportunity. He recently bought this building, where he eventually hopes to welcome tour buses packed with Japanese tourists detoured from visiting the Anne of Green Gables house, and hopefully sell them—and any other interested customers—some eel.

Eels won’t naturally breed in captivity. So, while Canada’s historic eel fishery is based on the netting and spearing of adult eels, the biggest money to be made these days is in using fine mesh nets to catch baby eels, called elvers, just off the coast, and then selling them, live, to Asian aquaculture farms. They’re then raised to maturity and processed, often into Japanese-style unagi kabayaki, a grilled eel fillet served with rice or in sushi.

Back in 2000, a Philadelphia eel company owned by Feigenbaum and a friend acquired another eel company, this one based in New Brunswick. It came with an experimental elver license. Within a decade, that license went from almost worthless to a major paycheck: in 2010, responding to its own collapsing eel stocks, the European Union banned all exports and imports of elvers, and worldwide prices for elvers of any species soon skyrocketed.

Since then, American eel elvers, each about the length of a golf tee, have commanded between $1,100 and $5,500 per kilogram on the international market, reaching a peak in 2012 and 2013, says Feigenbaum—compared with $3.50 to $15 per kilogram for frozen, wild adult eels, which aren’t suited for industrial processing. That meant the region’s nine elver licenses—which includes one communal commercial license held by an Indigenous group—became the basis for a $20- to $30-million fishery practically overnight. Atlantic Canada’s adult eel fishery, by contrast, includes around 400 license holders, 14 of them Indigenous, and is worth only a fraction of that.

Given the money at stake, Feigenbaum’s ambitions exceed the complex of cavernous buildings in rural New Brunswick where South Shore Trading holds hundreds, sometimes thousands, of squirming American eels—both elvers and adults, depending on the season—in huge, noisy aerated tanks. He and a group of four other elver license-holding businesses and individual fishermen, along with three other investors, are putting their money behind NovaEel, a new eel aquaculture business with its eyes on the real prize: unagi.

The NovaEel team wants to disrupt China’s domination of the market by raising elvers, caught in the wild by its own shareholders, to full size in tanks within its own facilities as early as 2020. By processing eels into a packaged barbecued product, which they’d sell at 10 times the price of elvers, they’d pocket that extra cash, and keep it here in Atlantic Canada. Feigenbaum estimates NovaEel could create a $200- to $300-million per year market—10 times what Canada’s current elver eel industry is worth.

“Right now we’re hunters and gatherers,” he says. “We go into the river, and we collect seeds. We sell them for $10, and the Chinese turn them into $100.” The influx of money could provide an important boost to rural communities like Port Elgin, where unemployment is around 10 percent. For the plan to succeed, NovaEel needs a steady supply of elvers—which hinges on the hotly anticipated federal SARA ruling.

The elver fishery has faced opposition since it started, especially from Indigenous groups and commercial fishermen reliant on adult eels. It’s illogical, some critics say, to pluck sexually mature adults and juveniles from an ecosystem and expect that the stock won’t collapse. Maria Recchia of the Fundy North Fishermen’s Association says their commercial adult eel fishermen worry maintaining an elver fishery risks the species’ health and that of fish reliant on elvers as a food source. “They’re certainly hoping eels will not be listed as a species at risk, but at the same time they’re deeply concerned about the state of eels.”

One question regarding the stock’s health comes down to this: scientists aren’t certain what effects the elver fishery has on the overall health of the adult eel population. Baby eels come into certain rivers in very large numbers, says Prince Edward Island-based DFO research scientist David Cairns, who has spent much of his career studying the American eel. Yet few of them survive to adulthood.

One DFO fisheries management report from 1998 estimates the natural mortality rate for eels between the elver and silver eel stage at roughly 95 percent. “Harvesting of elvers becomes, essentially, part of the natural mortality,” it reads, “and is believed to have less impact on the stock than harvesting at later life stages.” Some models have shown that only 0.2 to 0.45 percent of larvae even reach the coast in the first place.

“If you harvest these small little guys, are you harvesting those that would have died either way?” Cairns asks. Science, he says, just doesn’t have a clear answer to this. Not yet.

Reviews in Canada and the United States have generally concluded the American eel is in “some degree of difficulty,” he says. But while some studies along river systems have shown precipitous declines, eel populations along the southern Gulf of St. Lawrence, where he works, are three times what they were 20 years ago.

The longest-running study of American elvers—started in 1996 by DFO, suspended for five years, and now run in collaboration with an environmental nonprofit—takes place on the East River, in Chester, on Nova Scotia’s south coast. Technicians net, count and release the tiny eels as they enter the river. In 2014, they tallied 1.7 million elvers. They counted 657,000 in 2015, 2.3 million in 2016, and 800,000 in 2017. This is the best Canadian data available, but only represents a single river along a coastline dotted with thousands of rivers and streams, all potentially home—or not—to American eels.

In 2006, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), an arms-length expert panel responsible for preparing scientifically based species assessments used in the SARA listing process, identified the American eel as a species of special concern. Six years later, reacting to uncertainty around eel population data, the group upgraded its rating to threatened and issued a report.

DFO will use that COSEWIC report and information gathered from consultations with Indigenous groups, the fishing industry, the hydroelectric industry, provincial governments, and members of the public to inform its final recommendation to cabinet on whether or not the species should be listed under SARA. When that will happen is anyone’s guess: DFO spokesperson Steve Hachey says the department has “no idea when it will be announced.”

In 2007 and 2015, the US Fish and Wildlife Service concluded its own Endangered Species Act protection wasn’t necessary, ruling the species “stable.” Late last year, the American eel management board for the Atlantic States Marine Fisheries Commission announced that the “resource remains depleted,” but opted to maintain Maine’s elver quota of around 4,400 kilograms for 2018.

For Feigenbaum, a SARA listing from the Canadian government would be illogical. But the company has a backup: if the Canadian government closes or drastically reduces the elver fishery, NovaEel CEO Paul Smith says they could move the business to Maine, which has shown no signs of closing its fishery. In Smith’s best-case scenario, NovaEel will eventually operate eel farms worldwide from Nova Scotia-based headquarters.

The assertion of Indigenous rights over natural resources is also increasingly playing a role in the drama of who is entitled to catch—and profit off—eels and elvers. A Nova Scotia working group on the American eel was established in spring 2017, bringing together staff from two Mi’kmaw environmental groups, DFO, and a group representing treaty negotiations on behalf of most Nova Scotia Mi’kmaq, including Paqtnkek. NovaEel CEO Paul Smith says his company takes any opposition to the elver fishery seriously, and has met with nearly a dozen Atlantic First Nations to help keep communication open.