A Saltwater People: Water, Jurisdiction, and Dispossession: Protecting the Salish Sea

Robert YELḰATŦE Clifford*

This paper explores the dispossession of the W̱SÁNEĆ peoples from their home waters, the Salish Sea. It posits dispossession as not only removal but also as the enforcement of a set of regimes that damage Indigenous jurisdiction and remove Indigenous Peoples from participation in land and water governance. To address this issue, the paper explores the definition of jurisdiction and examines different approaches to land and water management, including National Marine Conservation Area Reserves regimes, the Indigenous Protected and Conserved Areas concept, and the application of legal personhood to water bodies. I investigate these approaches in order to determine whether they can support the revitalization of W̱SÁNEĆ law and the reclamation of W̱SÁNEĆ jurisdiction in the Salish Sea. In analyzing these different approaches, it becomes clear that each offers its own unique advantages and disadvantages, and that if the Salish Sea is to be protected, a layering of different initiatives and mechanisms, as is informed by W̱SÁNEĆ laws and jurisdiction, may be appropriate in the interim. 

1. Introduction

As a Saltwater People,[1] the W̱SÁNEĆ peoples have a vital relationship with the ocean and the beings who call it home. Regarding the dispossession of land, we might demand #LandBack or make the enduring claim against the state that our lands have been stolen. But what of the equally pervasive dispossession of saltwater territory and our ability and authority to relate to those waters in accordance with our own Indigenous legal orders? “What do we call a process of colonization where the effect of dispossession is not removal but the perpetuation of a set of exhaustive administrative regimes that undermine, erase, and choke out the exercise of Indigenous jurisdiction, rendering Indigenous people peripheral to effective participation in land [and water] governance?”[2] What about when these same administrative regimes function to propel climate crisis and other harms?

In order to understand dispossession in this sense, I will draw more directly on the concept of jurisdiction. I will also examine what tools might be available in W̱SÁNEĆ to reverse this trend of jurisdictional dispossession. Specifically, I will look at the National Marine Conservation Area Reserve (NMCAR) regime, the Indigenous Protected and Conserved Areas (IPCA) concept, and, more briefly, the rights of nature movement, including a survey of what these tools are, how they function, and what possibilities they might present. Might any of these tools help locally in upholding W̱SÁNEĆ laws and responsibilities to the ocean and other beings who call it home, while also fostering the revitalization W̱SÁNEĆ law and the reclamation of W̱SÁNEĆ jurisdiction? In doing so, might they also cohere into some form of action that aims at mitigating climate crisis and the powers, structures, and ideologies that continue to propel it? Conversely, in what ways do they fall short, or even function to adhere to the very types of structures and orientations that have brought us to this point of climate crisis? In setting out to offer some type of assessment on these questions, we must first understand how W̱SÁNEĆ law and jurisdiction has been displaced over this marine area, in order to develop a background context from which to judge any potential benefit (or upholding of the status quo). Much is at stake in all of this — something the following example makes clear.

2. The Trans Mountain Pipeline: A Jurisdictional Conflict[3]

On November 28, 2018, I testified in front of the National Energy Board (NEB) in continued opposition to the Trans Mountain pipeline expansion project (TMX), alongside a handful of others from the Tsawout First Nation.[4] We opened with drumming and a prayer song about the thirteen W̱SÁNEĆ Moons; a song that ties us to the lands, waters, and more-than-human world within our homelands. The W̱SÁNEĆ year is divided into thirteen Moons that represent not calendar months but social, cultural, economic, spiritual, and legal practices that correspond with the weather and cycle of seasons. As a Saltwater People, much of our traditional homelands span the southern Gulf Islands (Canadian side) and the San Juan Islands (American side). Our jurisdiction respecting these places has been organized in many ways around our NEHIYMET, or ancestral lines, which grant family groups certain privileges and responsibilities to various locations, including our SX̱OLE (reef-net fishing stations). Speaking at the NEB was one way for us to assert W̱SÁNEĆ jurisdiction in relation to these places, and was an enactment of our laws.

In addition to inherent rights and responsibilities in W̱SÁNEĆ, as Douglas Treaty signatories we also have an established agreement with the Crown regarding jurisdiction and living together, which among other things protects our rights and responsibilities to “carry on our fisheries as formerly.”[5] Concerns relating to the significant harm that would result from an oil spill, as well as the damage caused by increased tanker traffic, including continued erosion of the foreshore, damage to eel grass beds, and harm to endangered species such as the Southern Resident killer whales (SRKW), are at the forefront in W̱SÁNEĆ. In addition to obvious concerns relating to the specific project and its potential approval, for Tsawout there was also something larger at stake. Opening with a prayer, as we did at the NEB, is meant to shape the way we relate to each other, to open hearts and minds, and to honour and respect the relationships that are all around us. We wanted the NEB panel to understand our laws, including their standards of judgment, the obligations they create, the worldview from which they flow, and their relevance and legitimacy in relation to these lands and waters. Also at stake, of course, is the climate crisis and the vast harms that follow.

To many, the NEB ruling[6] to approve the project and deem it in the public interest of Canadians might appear to settle the issue, but rather, it represents only one of the more recent conflicts of jurisdiction; that is, as Shiri Pasternak frames it, the conflict “over the authority to have authority.”[7] Stated differently, it was a conflict “over whose laws of belonging will apply on those lands — and on what grounds.”[8] As W̱SÁNEĆ, we stood in front of the NEB because we are obligated to act, and speaking to these institutions is one of the ways in which we do so. We act in other ways as well. W̱SÁNEĆ law requires that we act to protect our homelands and other beings within them, including islands, salmon, whales, water, and others. This is a positive obligation within our law.

Faced with large and pressing problems such as the TMX and the global climate crisis more generally, we also need more people to listen and to act. Not long before the NEB rehearing, a Southern Resident killer whale named J35, who carried the body of her dead calf for seventeen days for all to see, was telling us the same thing.[9] For those who were listening, she was telling us that we have responsibilities we are not meeting. There are signs all around us that we need to stop recklessly burning through fossil fuels, depleting salmon stocks, and carrying out other destructive behaviours. These are the larger issues that are at stake, and the fundamental changes that must be made. An analysis of the climate crisis, which I cannot reproduce here, tells us that a fundamental reimagining of our relationships within the world, and thus the social, legal, political, and economic structures those relational understandings condition, is required. I assert that wisdom and practices housed within respective Indigenous legal orders can help us in this re-imagining, if we take that as our goal. Yet, our obligations to act sometimes also pull us in front of bodies like the NEB. As such, there is a tension and balance between pursuing various resurgence and reconciliation-leaning approaches, and we must particularly question their potential advantages and disadvantages within the context of climate crisis.

3. Theorizing Dispossession Through Jurisdiction

On land, assertions of sovereignty and the dispossession of Indigenous peoples is actualized and continually reinforced largely through regimes of private property, the right of exclusion, and the power of the state to uphold those structures. Over tidal waters, other jurisdictional techniques do much of the work.[10] What is apparent, though, in foregrounding jurisdictional borders and the struggles they produce is the ongoing and unfinished nature of colonialism. As Pasternak, in her work with the Algonquins of Barriere Lake, invites us, we can imagine a map of place entangled with jurisdictional lines, each of which presents a potential limit in that it represents jurisdiction, or in other words, the power to speak some aspect of the law that applies to that area. As such, the “thickening heap of lines” and resulting “jurisdictional commotion” act as barriers to the exercise of Indigenous jurisdiction.[11] Across W̱SÁNEĆ, these layers of jurisdictional commotion include provincial parks, conservation areas, municipalities, different jurisdictional roles within federal powers, such as between Parks Canada and the Department of Fisheries and Oceans, and even other authorities, such as Islands Trust, who have authority delegated from the Crown, to name but a few.

Layering of jurisdiction in Indigenous dispossession is a “slow violence” that builds over time.[12] It also is a form of dispossession that need “not result in the removal of the community” but, rather, is a process whereby Indigenous territory is “alienated and reterritorialized through competing use and jurisdictional claims.”[13] Importantly, this superimposition of jurisdiction relies not only on a strategy to erase and choke out Indigenous jurisdictional authority, but also on an ability “to replace and undermine inherent Indigenous jurisdiction with a state-delegated form of authority.”[14] Given the importance of this last observation, it is worth flagging now that approved co-management agreements, such as those under the National Marine Conservation Area regime, which I will discuss below, do not simply recognize and make space for inherent Indigenous jurisdictions, but, rather, create a new form of state delegated authority, and, as such, have to be approached with at least some level of skepticism from the outset.[15] It is also critical to note that these jurisdictional lines facilitate not only Indigenous dispossession, but climate crisis and the dispossession of other beings within these territories, creating space for pipelines, capital, and ongoing exploitation and accumulation of various kinds.

The extent to which we can see and act through this superimposed mass of jurisdictional lines, and through to underlying and inherent Indigenous jurisdiction, varies. Certain regions may be more opaque than others. Yet, enactments of Indigenous jurisdiction and self-determining authority resists those jurisdictional lines of dispossession, creating “barriers to penetration by capitalism” and bringing forth new possibilities.[16] Combating climate crisis is vital because climate crisis is, in itself, also a form of dispossession in the sense we have been discussing — “the slow violence of losing the capacity to exercise care” for our homelands.[17] That is, it is a “theft of the ability to act and govern when [our] homelands are damaged” [18] by such diffuse (spatial and temporal) sources that propel climate crisis. As such, resistance to colonialism and climate crisis need to go hand-in-hand. Although jurisdiction is an important factor in this resistance, we cannot forget our responsibilities that go along with that.[19] It matters not only that we speak, but also how we speak and how we act. Indigenous jurisdiction need not (and I would argue should not) be tied to colonial conceptions of sovereignty. Rather, reciprocity and mutual relations of care within and between humans and the more-than-human world moves to the forefront.

 The theoretical orientation I am describing around Indigenous jurisdiction and alternative ways of being in the world are best analyzed in practice, in specific places and contexts. It is that level of specificity that I aim to broadly outline in the following section.

4. Dispossession and the Reterritorialization of the Salish Sea

Despite an 1852 Treaty promise to protect our right to “fish as formerly,” there has been a steady and persistent eroding of W̱SÁNEĆ jurisdiction within our ocean territory, harm to those waters and the beings who call them home, and a dispossession of our ability to uphold care for these places and beings. It was the eventual competition over fisheries that provided the initial impetus for the assertion of settler jurisdiction over W̱SÁNEĆ waters.[20] A complete analysis of this unfolding of settler jurisdiction is not possible here, but the process and nature of this dispossession, as well as the harms it creates, is important to understand as part of colonialism, the climate crisis, and the contemporary contexts in which we find ourselves. It is, therefore, the point from which we must judge the creation of change.

4.1. W̱SÁNEĆ Jurisdiction

While I cannot relate the full nature of W̱SÁNEĆ law here, a few points about how W̱SÁNEĆ law and jurisdiction go about organizing relationships with territory is necessary. In some instances, W̱SÁNEĆ jurisdiction traces back to stories of creation and the responsibilities and obligations they relate. The principle of mutual care between W̱SÁNEĆ and ṮEṮÁĆES (Relatives of the Deep, or islands) is one such example. In other instances, W̱SÁNEĆ law and jurisdiction is centered around a tenure system, so to speak, where families and kinship units have particular rights and responsibilities to fishing sites, hunting grounds, or other particular places. In W̱SÁNEĆ, access to and care for these locations, such as SX̱OLE, or reef-net fishing sites, is inheritable through our NEHIYMET (ancestral line). In addition to inheritance, intermarriage has also been a component of buttressing this system of borders and jurisdiction, creating opportunities to open sites to broader kinship groups.

It is important to note that the W̱SÁNEĆ tenure system is not strictly anthropocentric. The thirteen W̱SÁNEĆ Moons, for example, place the cycle of seasons at the root of W̱SÁNEĆ laws, governance, economy, spirituality, and sociality.[21] Not all of W̱SÁNEĆ territory is organized around NEHIYMET. There are also areas throughout W̱SÁNEĆ that are “commons.” Yet, the “tragedy” that is thought to necessarily accompany such a “commons” need not be present, because when functioning fully, W̱SÁNEĆ law creates subjectivities and communities with felt obligations of mutual care and respect, as well as a mechanism for maintaining and correcting behaviours that depart from these standards. These have been effective and strong systems of law and jurisdiction asserted in connection with these territories, and it has been for precisely this reason that they “have been relentlessly attacked by colonial authorities” throughout colonial history.[22]

4.2. Sovereignty Claims, Jurisdiction, and Disposession

The broader context for early settler-colonialism in what is now British Columbia can be found elsewhere.[23] A general outline is relevant though. Early fur trade developed absent any colonial control,[24] and no attempt to regulate the fishery, for example, was made.[25] As settlement began, the focus was principally on land. In terms of assertions of sovereignty, prior to the Oregon Treaty of 1846 between the United Kingdom and the United States, W̱SÁNEĆ was within what was considered “disputed territory.” With the signing of the Oregon Treaty, Vancouver Island and the mainland north of the 49th parallel fell under the sovereignty of the British Imperial Crown.^[26] On land, the creation of property regimes and Indian reserves soon followed. Many of these reserves did, however, have an intimate link with Indigenous fisheries. For example, post-Confederation reserves in W̱SÁNEĆ, which are very small in land mass, are principally fishing stations. As Doug Harris has framed it, “Land followed fish.”[27]

The so-called Douglas Treaties that W̱SÁNEĆ signed, through which the Crown envisioned freeing up land for settlement, were also tied to fisheries in that they offered a more narrow protection of land rights while contemplating broader promises “to carry on our fisheries as formerly”[28] with the same freedom as when we were the sole occupants.[29] That the fishery was perceived as unlimited at the time, and could be secured with little impact on land, was likely a factor.[30] It was later that non-Native fisheries became more important and dispossession of Indigenous fisheries and jurisdictional authority over water became a colonial imperative. Even the Oregon Treaty left the boundary in tidal waters ambiguous, an issue that was not settled until 1872.[31] The border through these waters became one “determined by international politics and understandings of latitude and longitude, not family status, lineage, or salmon availability, or other ecological factors.”[32] The border also dissects W̱SÁNEĆ marine territory and is a significant part of the unfolding and imposition of settler jurisdictional orders over that of W̱SÁNEĆ. While “the 1794 Jay’s Treaty guaranteed Native peoples’ freedom of movement across the border,”[33] this movement was not desired nor unrestricted, even if those restrictions were not always obeyed by Indigenous peoples in the Salish Sea.

 Multiple jurisdictional lines, in addition to the international border, also take shape through reception of the common law. When the colony of British Columbia joined Confederation in 1871, a further jurisdictional shift occurred, with British Columbia “ceding jurisdiction over ‘Seacoast and Inland Fisheries’ and ‘Indians and Lands Reserved for Indians’ to the Dominion government.”[34] Federal laws and regulations of fisheries proliferated, in most cases seeking to erase or at least subjugate W̱SÁNEĆ and other Indigenous laws and jurisdictional authority over those lands and waters. As Harris frames it, the creation of Indian reserves and the creation of the Indian food fishery “were two of the principle instruments of state power and colonial control in British Columbia. Although nested in two quite different legal regimes — one governing land use and structured around notions of private property, the other governing fisheries and premised primarily on the resource as common property — the reserve and the food fishery served the same purpose.”[35] Dispossession. The dispossession we are speaking of is not only in the sense of attempted erasure, but also the replacement of broad inherent rights and authority to land and waters with severely truncated and state-delegated rights to the much narrower Indian reserves and Indian food fishery.

With respect to the Douglas Treaty, the promise to fish “as formerly” and as though we were the sole occupants was similarly “forgotten or ignored” as the “creation of the industrial commercial fishery” expanded alongside the creation of canning technology.[36] Licenses for non-native seine-net fisheries and other fishing methods “physically displaced important” W̱SÁNEĆ “reef-net fishing grounds.”[37] W̱SÁNEĆ reef-net fishing sites were strategically located, but regulated through W̱SÁNEĆ law and jurisdiction such that they were cared for and not overfished. As a result, salmon were abundant.[38] “Recognizing the fecundity of these Native fishing places, however, industry players with capital sought to take over the sites for their own exclusive use,” for which they were offered licenses by the Department of Fisheries and Oceans.[39] With that dispossession also came the displacement of an ethic of care and responsibility. The canneries that owned the fish traps imposed in these areas overfished and were incredibly wasteful.[40]

More generally, the international border between Canada and the United States also functioned to create a regulatory race to the bottom in favour of competition over conservation, even as fish stocks plummeted — something blamed on the Indian fishery.[41] Any type of Indigenous selling or bartering of fish was prohibited,[42] the issuance of permits as a form of regulatory control over the Indigenous fishery was introduced,[43] and the method and timing of the Indian food fishery was established and regulated.[44] Fish stocks and Indigenous peoples suffered as a result, with little opportunity for recourse.[45] As is often the case, the interests of the colonial state and settler community come to trump those of Indigenous peoples, and these types of regulations ensured that could happen.

Declining salmon stocks remain a central concern to date, including in relation to endangered Southern Resident killer whales, for which they are a main food source. Conservation also remains a jurisdictional issue in that different regulatory regimes, enforcement levels, and priorities exist across settler jurisdictional boundaries in the Salish Sea. We can see that the entanglements of Indigenous jurisdictional dispossession, the reach of capital and imperatives of accumulation, and environmental harms have tended to go together. This has been the case even from the introduction of canning technology, which extended the reach of the market and opened the opportunity to create more capital, which in turn triggered the extraction of more salmon as resource in service of that accumulation of capital. In terms of the fishery, what might look like a granting or privilege of a food, social, and ceremonial fishery right, or the establishment of various “harvesting agreements” or delegated fishing rights, is actually a process through which inherent Indigenous jurisdiction over fisheries and all that surrounds it has been stripped away and replaced with truncated access to those fisheries along the lines of a cultural accommodation.[46] Through that process, the remainder is opened to the colonial state and settler society. Even where the Douglas Treaty protects the right to fish, it has not extended to a right to governance or a protection of the fishery.

It is from this backdrop that W̱SÁNEĆ struggles to reclaim jurisdictional authority and to uphold responsibilities of care with W̱SÁNEĆ territory and the other beings who also call it home.

5. NMCAR, IPCA, and Legal Personhood: Potential Jurisdictional Tools?

As an ocean people, W̱SÁNEĆ have strong interests and responsibilities under W̱SÁNEĆ laws to uphold healthy relationships within the marine environment. Salmon, herring, SRKWs, clam beds, and more have all been threatened by a myriad of harmful actions and detriments to their living environments locally, but also internationally and at a global level through rising temperatures and the acidification of oceans, to name only two. Within W̱SÁNEĆ politics and governance, there is a constant struggle to navigate possible tools, approaches, and actions that can function to uphold W̱SÁNEĆ responsibilities to these relatives in the sea. To reiterate, these responsibilities relate not only to actions internal to W̱SÁNEĆ, but also to harmful actions of others. The difficulties that arise in this regard are immense. As W̱SÁNEĆ are entangled in a web of colonial and global relationships and impacts, difficult choices and paradoxes constantly arise.

We have our own laws and responsibilities that we will continue to assert and enforce, and which require much broader and foundational change than settler law and jurisdiction is structured to permit. Such a commitment points us toward the need to continue to re-build and emphasize W̱SÁNEĆ jurisdiction and ways of being, or what Aaron Mills would call lifeways, in their full complexity.[47] At the same time, as part of meeting our responsibilities within W̱SÁNEĆ law, we may choose, or be compelled, to draw upon various tools of the state as a means to seek tangible benefits and protections for our relatives in the sea. The risk inherent in that strategy, however, is becoming caught up in “regulatory capture” and power dynamics that end up co-opting what was initially a strategic and more peripheral intervention within settler jurisdictional frameworks, thereby shifting focus, energy, and ability away from enacting the broader and deeper changes required in restoring W̱SÁNEĆ jurisdiction and combating climate crisis.

Remaining confined to state structures will not alter the colonial relationship, nor create the degree of change necessary to respond to climate crisis. Far more foundational change is required. Yet in the present moment, how do we act to give immediate care and to reduce harm to the ocean and our more-than-human relatives who call it home? What remains, then, is actually an impossible political decision: is the net harm of reinscribing much of the logic that brought on these harms in the first place better or worse than foregoing the use of a tool that could create conservation measures that are undoubtedly better than what currently exist? It is difficult to say for certain. The real problem is being forced to choose between these two strategies. There is, of course, no straightforward answer to this predicament, and a layering of approaches may be our best approach.

In this section I will examine W̱SÁNEĆ efforts to protect the marine environment with the help of three potential tools: a National Marine Conservation Area Reserve (NMCAR), an Indigenous Protected and Conserved Area (IPCA), and Legal Personhood of the environment. These tools have been chosen based on W̱SÁNEĆ being presented with, or otherwise having some level of interest in, the possibility of utilizing these tools within our territory. Understanding these tools and the implications they have regarding jurisdiction requires significant attention to the frameworks through which these mechanisms operate and come into being. For example, regarding the NMCAR, considering not only enabling legislation and policy orientations within Parks Canada, but also the nature of various potential co-management agreements that an NMCAR would give rise to, is necessary. The complexity and uncertainties of such an analysis, including the broader structure of federalism in which it is embedded, speaks, in and of itself, to the type of jurisdictional commotion to which I have already referred.

We should therefore, from the outset, be clear that an NMCAR, in itself, and as will be discussed in more detail, does not fundamentally depart from the model of dispossession of marine territory that we saw above in relation to fisheries, in which dispossession occurred through an erasure of W̱SÁNEĆ jurisdiction, the imposition of foreign jurisdictions, and a reinscribing of more limited rights and truncated forms of delegated jurisdiction to Indigenous Nations. That is, there is no return to, nor even recognition of, the right to “fish as formerly” and to the jurisdiction in relation to fisheries that should flow from that, let alone any serious questioning of how it is that Canada has come to have any legitimate jurisdictional authority over these waters whatsoever. In that regard, while these types of agreements are often spoken of as a compromise between settler and Indigenous peoples and jurisdictions, rarely do they seem to consider from what starting point. So, while I will now examine the NMCAR framework, along with potential co-management or Indigenous management board models and the processes they may entail, including a brief look at innovative international examples, specifically recognition of the “legal personhood” of nature, this broader concern should be kept in mind throughout. Following my discussion of the NMCAR, I will also examine the concept of an IPCA and how the possibility of layering initiatives may help mitigate various shortcomings and limitations of each approach.  

5.1. National Marine Conservation Areas

Despite a large network of terrestrial National Parks within Canada, including among coastal areas, “few of these terrestrial parks provide any direct measure of protection for the adjacent marine resources.”[48] Beginning in the late 1980s, Canada began to address this gap with the National Marine Parks Policy[49] in 1986, and development of the first NMCA in 1987 — Fathom Five National Marine Park.[50] Since then, Parks Canada has been tasked with establishing a system of NMCAs that, as a whole, represent the full range of marine ecosystems within Canada. Parks Canada has identified and divided the marine areas within Canada — the Atlantic, Arctic, and Pacific oceans, and the Great Lakes — into twenty-nine distinctive regions, with the goal of establishing marine conservation areas within each region.[51] These NMCAs are created and managed with the “purpose of protecting and conserving representative marine areas for the benefit, education and enjoyment of the people of Canada and the world.”[52] Currently, there are three established NMCAs and one NMCAR.[53] An NMCAR is identical to an NMCA, with the same protections, but the additional “Reserve” designation signifies that all, or part of, the conservation (or proposed conservation) area is “subject to a claim in respect of aboriginal rights that has been accepted for negotiation by the Government of Canada.”[54]

NMCAs are principally about conservation and managing marine areas for sustainable use and enjoyment.[55] NMCARs have the same purpose, though they are generally understood to also honour Aboriginal and treaty rights.[56] Since each NMCA or NMCAR is unique, the creation of an individual “management plan” is intended to be done “on a partnership basis.”[57] Existing agencies, such as the Department of Fisheries and Oceans (fisheries and ocean management) and Transport Canada (marine navigation and shipping management), will continue in their own management roles, but within an NMCA or NMCAR those agencies must co-operate with Parks Canada to create management plans.[58] Once those agencies sign-off on a management plan, they also have a responsibility to uphold conservation objectives. In Canada’s view, “First Nations and local government may also have roles in managing NMCAs,” with those roles being laid out in the NMCAR “management plan.”[59] Jurisdictionally, NMCAs “include the seabed, its subsoil and overlying water column and may encompass wetlands, river estuaries, islands and other coastal lands.”[60] As national conservation areas, jurisdiction needs to be transferred to the federal government to be “owned and managed by the Government of Canada.”[61] Only a small degree of flexibility seems to currently exist in this requirement.

With broad and far-reaching conservation goals, NMCAs are meant to be large and to work in conjunction with neighbouring parks. Parks Canada continues to work on updating policy objectives and implementing regulatory frameworks, but the development of marine conservation areas continue at a slow pace. An absence of updated policies and the creation of enforceable regulations certainly contribute to a lack of clarity in what exact protection measures an NMCAR might offer W̱SÁNEĆ. What we can glean from the proposed policy updates is a greater attention to climate crisis and Indigenous peoples’ long-standing connection with the lands and waters within NMCAs, even if those remain inadequate — as are Canada’s actions as a state, more broadly. The guiding question will be: Does this tool open enough jurisdictional space to meaningfully uphold and protect W̱SÁNEĆ laws and interest? And does it orient our jurisdictional trajectory in a positive direction? Or, conversely, does it risk reinscribing too much of the jurisdictional framework that has fostered dispossession and inhibited structural responses to climate crisis?

Parks Canada’s re-cast policy framework focusses on several overarching objectives for managing NMCAs.[62] To briefly summarize a few relevant points, these policies do contemplate actively pursuing a range of cooperative management agreements with Indigenous Nations, which are meant to respect Indigenous knowledge systems. They are also intended, at least in word, to respect “the spirit and intent of treaties” and to recognize “the social, cultural and economic well-being of Indigenous peoples” tied to these waters.[63]  In short, within this proposed policy framework, reconciliation[64] is seen as manifesting through Indigenous cultural heritage protection, Indigenous monitoring and co-management agreements, and “opportunities for Indigenous peoples to present and share their heritage and culture with visitors.”[65] Since a management plan “is a key document that helps guide decision-making,”[66] there is potentially an opening for increased W̱SÁNEĆ decision-making powers, depending on the management model negotiated.

In terms of actual management of NMCAs, a great deal of focus is given to zoning. All lands and waters within an NMCA are legislatively required to be zoned.[67] In order to implement and enforce zoning within NMCAs, Parks Canada has drafted regulations. Proposed are four different zones with varying levels of protections and permitting requirements.[68] While legislation requires one “fully protected zone” and one “ecologically sustainable zone,”[69] the rest is open to negotiation. While the zoning framework has a focus on preventing extraction, there is less regulation of marine travel.[70]

While some ecological restoration activities are contemplated within NMCAs, it is fair to say that a lack of specific focus on restoration, and exclusion of already developed or ecologically damaged areas, is a significant weakness. While prohibition of extractive infrastructure in favour of renewable infrastructure is positive, the primacy of an NMCAs conservation purposes and objectives also remains secondary to “any activity undertaken in the interests of Canadian sovereignty or security.”[71]

5.2. Establishing a Proposed Southern Strait of Georgia NMCAR

Broadly speaking, there are five steps in establishing an NMCA or NMCAR. Step one involves the preliminary identification of representative marine areas within a given region that are “in a natural state, or . . . capable of being restored to a natural condition.”[72] Step 2 involves additional studies and consultations in narrowing in on a specific site. In Pacific Region 5, this has become the Southern Strait of Georgia location. While the federal and provincial governments signed a memorandum of understanding in 2003,[73] Step 2 appears to have been done with little to no consultation with W̱SÁNEĆ.[74]

Step Three is the “most complex and time-consuming step” of the process, requiring a more detailed feasibility and consultation process.[75] Determining whether an NMCAR in this location is “both practical and desirable”[76] has been underway since 2004 and prioritized since 2016. It remains in the feasibility stage to date. A proposed boundary for the NMCAR has been developed during this stage.[77] Jurisdictional commotion relating to existing tenures, shipping lanes, and otherwise developed or ecologically harmed areas has shaped not only this proposed boundary but also a series of “exclusions” within it.

Based on this proposed boundary, Parks Canada understands itself to have a responsibility to consult with nineteen different First Nations regarding the feasibility of an NMCAR in this location.[78] For W̱SÁNEĆ, consultation is currently channeled through the W̱SÁNEĆ Leadership Council Society (WLC) and the Paquachin First Nation.[79] A significant achievement shaping this process is the recently signed IEȽȻIȽTEL or Nutśa matt kws ‘í shul’ hwilasmut tu Skwul ‘í kwthe’ Accord (IEȽȻIȽTEL Accord), in which many of the Nations being consulted on issues such as NMCAR have agreed to work together.[80] Should these Nations agree to the feasibility of an NMCAR in the Southern Strait of Georgia, then Step Four proceeds to the negotiation of a marine conservation area agreement. These agreements, “setting out the terms and conditions under which the NMCA will be established and managed,” are complex.[81] Once agreed upon, the final step is to bring the NMCA into force through legislation of the Parliament of Canada.[82] In the case of an NMCAR, the CNMCA Act will still apply, “but the status of the area would be subject to the final resolution of the aboriginal claim.”[83] The fact that an NMCAR provides legislated protection measures over an area can be seen as a distinct advantage of the process, at least to the extent that it creates greater enforcement and funding opportunities than might otherwise be available.

5.3. NMCAR Themes and Considerations

In order to assess the feasibility of the proposed NMCAR, the WLC has had to consider issues relating to conservation potential, boundaries, tenures, ownership, areas of exclusions, zoning analysis, potential economic benefits, potential co-management structures, Douglas Treaty Rights/Responsibilities, W̱SÁNEĆ Laws, and more. Some of the challenges, or weaknesses, can be grouped into broader themes. For our purposes, we can group those into exclusions, boundaries, and zoning.

5.3.1. Exclusions

The Southern Strait of Georgia NMCAR is complicated by heavy marine use and close urban centres in the area. Current exclusions within the proposed boundary relate primarily to areas with high tenure concentration, or the incompatibility of specific tenures in the area, which can include issues of jurisdictional complexity.[84] In large part, these are jurisdictional issues relevant within Canadian law, but they represent little more than a self-imposed bureaucratic barrier in W̱SÁNEĆ thought. Referencing the map of the proposed boundary,[85] exclusion of most harbours in the proposed NMCAR occur not only due to high tenure concentration, but also for ease of navigation. The trouble with moving from one jurisdictional area to another is that you need to have some reasonable idea of when you are, or are not, within an NMCAR area. The trouble with the presumptive exclusion of various harbours is that those areas are incredibly important both culturally and ecologically.

Herring, for example, are keystone species essential to the marine foodweb. Not only have herring been depleted from drastic overfishing, but spawning grounds within harbours have been heavily impacted, and several important spawning grounds would be excluded from the NMCAR boundary for these reasons.[86] Ganges Harbour, a traditional W̱SÁNEĆ village site, which W̱SÁNEĆ pushed to have included as a Reserve specifically because of the herring fishery and its importance, as well as Tod Inlet, where our first ancestor came to the Earth as rain and which is the location of the first W̱SÁNEĆ village site, are two examples.[87] Harbours are home to seagrass beds and different types of kelp. The fact they are heavily used or more challenging to navigate does not change that. From a W̱SÁNEĆ perspective, that these are the areas most vulnerable to the impacts of cumulative effects does not contribute to a rationale for exclusion, but rather an increased rationale for “care” — that is, restoration and protection.

A similar tension between a rationale for exclusion and a rationale for increased care can be seen in regards to the presumptive exclusion of sewage lines and outfalls. The cumulative effects of pollution in the Salish Sea has resulted in near constant sanitary closures of most clam beds. In W̱SÁNEĆ we have a saying — “when the tide is out, the table is set.” Clams beds have been a central aspect of W̱SÁNEĆ economy and culture, which the cumulative effects of pollution has taken from us. This remains an issue over which we have little decision-making authority. How can an NMCAR help the health of these clam beds and foster a better relationships with clams? Excluding effluent outfalls from the NMCAR boundary, as though they are not really there, seems misguided. Climate crisis makes it abundantly clear that rationalizing pollution as “away,” or “out of sight, out of mind,” is inappropriate and dangerous. A better approach, and one more consistent with ecological integrity and sustainability, would be to use an NMCAR as a tool to regulate effluent treatment levels and bilge pump dumping to help restore the health of clam beds.

Ultimately, since NMCAs prohibit activities that are inconsistent with sustainable use and require the rehabilitation of areas previously degraded or polluted, there is hesitancy to include heavily used harbours, industrialized areas, or previously degraded areas. These types of considerations play far too great a role, and within the jurisdictional realm of Canadian law, they continue to pose huge challenges and limit the possibility of meaningful ecological rehabilitation. The very notion of exclusions and compartmentalization is difficult to grasp within W̱SÁNEĆ thought. To make exclusions is to ask us to leave behind part of our culture, beliefs, and laws; to fetter our jurisdiction to care for our relatives within the sea and future generations. To quote my uncle John Elliott on this point: “We can’t let that go. We can’t put it aside. It is a part of who we are.”[88] Seen through the lens of relational ontology, Elliott does not mean this as hyperbole, but quite literally.

5.3.2. Boundary

Similar difficulties arise in regard to creating an NMCAR boundary. Rather than focusing on responsibilities and an assessment of what it would actually take to protect, for example, Southern Resident killer whales, the NMCAR framework is sidetracked by jurisdictional complexities from the outset. The NMCAR boundary avoids extending around the southern tip of Vancouver Island and up the Strait of Juan de Fuca based on the complex infrastructure and jurisdictional issues around the city of Victoria. A similar rationale results in excluding the mouth of the Fraser River from the NMCAR boundary. The Fraser River is the largest river in British Columbia and one of the largest salmon spawning rivers in the world, and it brings millions of migrant birds every year. Seemingly more important, however, is the river’s importance for industrial activities and port access to metro Vancouver. Jurisdictional complexity, heavy use of the marine area, and potential interaction with the Tsawassen Treaty[89] make it incompatible with an NMCAR.[90]

The international border between Canada and the United States, which intersects W̱SÁNEĆ territory, the Strait of Georgia, and the Strait of Juan de Fuca and which functions as the boundary of the proposed NMCAR, is another example — perhaps the most obvious — of how jurisdiction precedes conservation. What do our relatives, KELȽELMEĆEN (Orca), know of these boundaries? It takes only one look at the critical habitat of SRKWs to see the inconsistencies with the NMCAR boundaries.[91] Is this inability to work cooperatively and across the international border not the same issue we saw in depletion of salmon stocks, the primary food source of KELȽELMEĆEN, in the first place? I do not claim that the NMCAR would not benefit KELȽELMEĆEN. However, as opposed to asking what it would actually take to save the endangered SRKW, the logic of the NMCAR boundaries, and the jurisdiction that enables it, seemingly works backward to ask what are we able to do given what we already have in place — even despite the fact that what is currently in place is exactly what is doing the central harm.

5.3.3. Zoning

In establishing an NMCA, a series of studies and mapping is done as a way to determine areas of high importance based on a variety of different considerations and interests. These maps are created by using a “spatial decision-support tool” called Marxan. A Marxan analysis breaks down the area of study into a large number of planning units as a way to “identify areas of high conservation value that would fully represent the species and habitats found within the study area.”[92] A Marxan analysis is a long and expansive process shaped by particular values and the data inputs provided.

What would a map projecting a loss of fishery and changes in marine life over time, the historical trends of degradation and contaminated sites, or the cacophony of jurisdictional lines imposed over W̱SÁNEĆ jurisdiction look like? How would that recast the actual challenges being faced? A map available through Trailmark Systems shows what vessel traffic in the region looks like for the year 2017, and that is only from vessels required to carry an Automatic Identification System (AIS).[93] It is striking just to consider the noise alone generated from these ships, which impacts SRKW echolocation abilities, let alone analysing where these ships are heading and what they are carrying.

W̱SÁNEĆ cannot conduct our own Marxan analysis and Parks Canada is reluctant to conduct another Marxan analysis prior to a decision on feasibility. As such, two paradoxes arise. First, W̱SÁNEĆ is asked to put the cart before the horse; that is, to proclaim an NMCAR feasible in our territory (a significant commitment) prior to fully understanding if a Marxan analysis can capture our most significant concerns, or what a management framework would actually entail. Second, we are asked to identify and utilize ecological protections within an NMCAR framework, meaning that the way in which we speak of our relationships with territory and the beings within it necessarily becomes shaped by a very technical and bureaucratic process. Much of how this all plays out, and how decision-making is structured, ultimately depends on the type of co-management agreement negotiated after the feasibility stage. While any final co-management agreement will be context dependent, some sense of the possibilities is necessary.

5.4. Cooperative Management

The term Cooperative Management is used by Parks Canada to describe any number of models in which Indigenous peoples are involved in the planning and management of national parks, but which do not limit the authority of the Minister under the Canada National Parks Act.[94] To be clear, these agreements, therefore, do not necessarily envision a transition to Indigenous management as a stand-alone option. While many of these examples are terrestrial parks, they remain relevant in considering the spectrum of potential management models. To be fair, Parks Canada does explicitly consider this spectrum of co-management report, and thus the options and analysis of “legal context” it presents, to be outdated given an increased emphasis on being guided by the “spirit and intent” of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[95] While future co-management agreements may go beyond these examples, we do not yet have a clear picture of what those agreements might look like, or the extent to which they might move beyond these frameworks. Additionally, the same section 35 caselaw remains in the background. As such, I think legitimate concerns remain, and the following examples remain relevant for our purposes. I should also note that Parks Canada is mandated and granted a certain scope of power and jurisdiction, and thus is also confined in its ability to alter what may be agreed to, in certain respects. As such, while I am speaking of Parks Canada, I am primarily speaking of a structural and jurisdictional limitation more generally.

5.4.1. Parks Canada Co-Management Spectrum and “Legal Context”

As of 2017, there were thirty-five heritage places in regard to which Parks Canada has entered into cooperative management structures in Canada.[96] Each cooperative management agreement is necessarily unique and context dependent. Parks Canada does, however, identify three broad models for agreements to follow: 1) Relationship Building Body; 2) Cooperative Management Board; and 3) Consensus Management Body. Internally, Parks Canada has identified the need to understand the “legal context” in determining which model is most appropriate.[97] The structure of a negotiated agreement therefore seems to flow, at least in part, from an interpretation of this legal context. Understanding the “legal context” makes sense in terms of establishing a bare minimum in engaging Indigenous groups. However, presuming that Canadian Aboriginal law is the starting point is problematic. Indigenous laws, norms, and decision-making mechanisms, which pre-exist Canada, are a more appropriate reference point, as opposed to a secondary consideration.[98] If Parks Canada is truly “working towards a new model of collaborative conservation” and seeking “innovative approaches to Reconciliation” that “honour the spirit and intent of treaties,”[99] then taking Canadian Aboriginal law as a structural limitation is backward looking. In addition, this “legal context” is also framed such that, thus far, only the Haida Nation have been able to achieve a consensus management agreement. A significant factor in that regard is that the “legal context” guiding the development of a consensus management body requires that there be “no overlapping claims” as well as “one body to represent all nations.”[100]

From a relational ontology lens, “overlapping” relationships with place and other beings is not a problem, but a fact of life; one which our own legal orders have regulated for millennia. We can see in the requirement of “one body to represent all nations” that, rather than recognizing existing form of Indigenous governance, these co-management agreements are processes through which governance structures and the polities they represent are brought into being. Squeezing a decentralized kinship governance structure, such as W̱SÁNEĆ NEHIYMET, into a single decision-making body is no straightforward task. When coupled with the notion that place and the more-than-human world have being and agency, it is difficult to see how a management board can meaningfully represent that form of W̱SÁNEĆ governance. Again, Parks Canada (at least) may be willing to begin to move beyond these limitations, but the legal landscape and limited jurisdictional authority of Parks Canada, as but one branch of the federal government, means these concerns will not simply disappear.

I return now to the three cooperative management models identified above. The first type are Relationship Building Bodies. These bodies produce recommendations that are not necessarily legally binding, that focus on the process of sharing knowledge, and that do not provide Indigenous groups with decision-making authority.[101] These models are not relevant to our context. The second type are Cooperative Management Boards (CMBs) aimed at facilitating long-term relationships. A CMB is a potential model within the context of an NMCA, and Parks Canada’s “legal context” may also suggest this model with respect to W̱SÁNEĆ.[102] The exact structure of a CMB can vary, but they generally involve representation on the management board from Parks Canada and the Indigenous group(s), with the chair of the board being appointed jointly or by the Minister.[103] Consensus is not required and final decisions rest with the relevant Minister.[104] CMBs may also be purposefully limited in scope. Two examples using the CMB model are Tongait KakKasuangita SilakKijapvinga/Torngat Mountains National Park, on the Labrador Peninsula of Newfoundland and Labrador, and the Kluane National Park and Reserve, in the Yukon Territory. This model of co-management can offer significant powers to their Indigenous signatories, but they are also riddled with complexities, trade-offs, and tensions. While the same critiques may apply to the next option — consensus management (or co-governance) — that model does have the additional incentive of creating more decision-making authority for Indigenous partners.

With its roots in a Haida Heritage Site, and later a National Park Reserve,[105] the Gwaii Haanas Agreement has become the sole example of an Indigenous group negotiating a consensus management agreement, thus far.[106] An often noted strength of the Gwaii Haanas Agreement is that both parties continued to assert “sovereignty, title or ownership” over Gwaii Haanas/the Archipelago[107] while agreeing to work toward “long-term protective measures” “without prejudice” to those claims.[108] The Archipelago Management Board (AMP) is the mechanism through which the parties “share and co-operate in the planning, operation and management of the Archipelago,”[109] based on consensus,[110] and flowing from their own jurisdictional authority. The 2003 Management Plan for the terrestrial area[111] was followed in 2010 by the Gwaii Haanas Marine Agreement.[112] The Marine Agreement required adding the Department of Fisheries and Oceans to the AMB, for jurisdictional reasons, and resulted in the first real dispute between the parties, which revolved around a roe herring fishery.[113] In the eyes of the court the dual assertion of sovereignty within the Gwaii Haanas Agreement gave DFO “a heightened duty” [114] regarding accommodation, but “did not give the Haida any veto” regarding the roe herring fishery, and balancing commercial rights and public interests were still a factor.[115] Ultimately, in the ruling of the court, “there is no question the Minister enjoys deference in governing the roe herring fishery.”[116]

Through the Gwaii Haanas Agreement, the Haida Nation is able to assert a form of “nested sovereignty”[117] and exercise of jurisdiction, although the presumed supremacy of Canadian sovereignty remains a concern. There is also no escaping the fact that Canadian sovereignty is territorially broader and thus can impact Haida jurisdiction. Nonetheless, the Council of the Haida Nation continues to push jurisdictional boundaries in merging their terrestrial and marine agreements into a holistic and comprehensive management plan, the Gwaii Haanas Gina ‘Waadlux̱an Kilguhlga Land-Sea-People Management Plan, again a first of its kind.[118] The management plan is a first for an NMCAR and approaches Gwaii Haanas management “from mountaintop to seafloor as a single, interconnected ecosystem.”[119]

As a final note, while the Council of the Haida Nation (CHN) acts as the unified body representing Haida interests as party to the Agreement, significant internal governance occurs in the background of that structure.[120] The CHN remains accountable to the hereditary chiefs of the Haida Nation, who have all come together through signing the Haida Accord.[121] While the CHN is vested with governing power for the Haida Nation, it “shall uphold the principles embodied in the Haida Accord.”[122] Internal disputes therefore continue to be addressed through traditional governance structures, which then inform the CHN body.

5.5. IEȽȻIȽTEL or Nuts’a maat kws ‘i’ shul’ hwilasmut tu Skwul ‘i’ kwthe’ Accord

To recap, a significant reason Haida has thus far been the only Indigenous group able to negotiate a consensus management agreement, aside from the constant political pressure they have applied, is the lack of “overlap” within the boundaries of their traditional territory. The “legal context” identified by Parks Canada in establishing a consensus management body has tended to require “no overlapping claims” and “one body to represent all nations.”[123] On the face of it, the complexity and “legal context” around the proposed Southern Strait of Georgia NMCAR would preclude a consensus body model, such as that used by Haida. Again, Parks Canada has more recently indicated that UNDRIP is a more relevant guide post, and thus expressed a willingness to potentially move beyond the Haida model. Nonetheless, the fact that the Southern Strait of Georgia NMCAR is in close proximity to an urban centre, and that Parks Canada identifies nineteen different First Nations as having interests within the proposed NMCAR boundary, creates certain challenges within the NMCAR framework.

W̱SÁNEĆ, along with our relatives and neighbours, have taken this “overlap” issue into our own hands. In November of 2019, south island First Nations, from Nanaimo to Saanich, signed the IEȽȻIȽTEL or Nuts’a maat kws ‘i’ shul’ hwilasmut tu Skwul ‘i’ kwthe’ Accord to work together on issues relating to Parks Canada within our territories. In SENĆOŦEN, IEȽȻEȽTEL means “to paddle together.” In taking this step, we relied on our own legal traditions and protocols.[124] I consider the IEȽȻEȽTEL Accord to be a central aspect of moving forward, and while I will return to it below, it is here a reminder that we can consider the benefits offered by tools such as an NMCAR while also refusing to be limited by those frameworks.

6. Legal Personhood and Indigenous Protected and Conserved Areas

The NMCAR framework can present opportunities for increased conservation efforts and protections within the Salish Sea. Depending on the negotiated agreement reached, W̱SÁNEĆ might find access to greater decision-making powers, which could have a positive impact on the Salish Sea and the more-than-human beings who also call it home. Yet, ultimately, an NMCAR does not result in a full restoration of W̱SÁNEĆ jurisdiction, and in order to actually grapple with the reality of climate crisis, we need more than a patchwork approach to environmental conservation. As such, we should be clear that the NMCAR framework, and corresponding co-management agreements, remain firmly rooted in, and thus limited by, the idiom of sovereignty and its associated and complex entailments, power relations, and structures.[125] The most striking example in this regard is the way these structures seem to foreclose the very possibility of place and the more-than-human world as subjects, as opposed to objects, of law and politics.

The gap between the epistemic locality and relational ontology described by Brian Burkhart, which I give greater attention to elsewhere,[126] and the liberal and rights-oriented framework of Canadian law, is vast. It is in no way clear that a middle-ground between the two orientations is possible, and the attempt to exercise one jurisdiction (W̱SÁNEĆ law and responsibilities) through the other (NMCAR framework) may be misguided. At the same time, given the constant harms felt by our relatives in the marine environment and to ŚW̱OMETs TŦE SELSELI ȻSI ŚĆENNE (“ancestral beds of the lives within the sea”), we cannot afford shirking the need to take responsible action to help them, even if it may not be our most ideal scenario. If we choose to strategically participate in the NMCAR framework, as a tool of Canadian law, we should be keenly aware of the dynamics at play and maintain our principal focus on the fact that participating in the NMCAR should not negate or distract us from implementing our ongoing Indigenous laws and jurisdiction. In moving away from a perceived either/or choice, in the following section I will turn my attention to other innovative tools we might consider, as well as exploring the possibility of layering multiple tools and strategies.

6.1. Legal Personhood

Internationally, there have been a number of legal advances in terms of environmental protection and the rights of nature around the globe.[127] In some cases these are embedded in the constitutions of nation-states. They are often framed as human rights, though some examples move beyond human rights to protecting the rights of Nature, including the examples of Ecuador and Bolivia.[128] Contradictions, lack of enforcement, and empty promises certainly remain. As David Boyd indicates, “neither constitution nor human rights can magically solve deep-rooted societal problems related to capitalism, globalization, and the growing gap between rich and poor.”[129] Yet, some sense of optimism may also be gleaned from these advances in law. One international innovation receiving a great deal of attention is the granting of legal personhood to the environment. The two most prominent examples, Te Urewera and the Whanganui River in Aotearoa New Zealand, are interesting developments occurring in somewhat similar contexts to those in W̱SÁNEĆ.[130]

Te Awa Tupua is the legal person created through the Whanganui River Claims Settlement and “has all the rights, powers, duties, and liabilities of a legal person,”[131] which are exercised and upheld by Te Pou Tupua (“the human face of Te Awa Tupua”)[132] in speaking and acting “on behalf of, and in the name of, Te Awa Tupua.”[133] As the settlement sets out, “Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and meta-physical elements.”[134] Stated from a Maori perspective, Ko au te awa, ko te awa ko au (“I am the river, and the river is me”).[135] Upon its recognition of legal personhood, the Aotearoa New Zealand Crown transferred ownership of the river bed to Te Awa Tupua itself. As such, “[o]ngoing management of the surface water is collaborative[136] and “must consult Te Pou Tupua, as appropriate,”[137] although existing property rights are grandfathered in.[138]

Much like the Whanganui River, Te Urewera, once an Aotearoa New Zealand national park, also became its own legal person.[139] Te Urewera is established in much the same way as Te Awa Tupua (Whanganui River). Fee simple ownership now vests with Te Urewera itself,[140] with the Tu Urewera Board acting on behalf of, and in the name of, Te Urewera.[141] In undertaking its duties, the Te Urewera Board has developed the Te Kawa o Te Urewera Management Plan (Te Kawa).[142] Principally, “Te Kawa is about the management of people for the benefit of the land — it is not about land management.”[143]  It is “a series of protocols established to promote the human–nature relationship. In doing so, it also establishes a way of life for those who have a relationship with Te Urewera.”[144] Te Kawa recognizes that “Nature speaks all the time and is understood only by the sincere observer and heedful mind and heart.”[145] To read Te Kawa it is to be inspired. As a “management plan” it is the best that I have seen, and W̱SÁNEĆ would do well to follow a similar vision in terms of commitment to centering W̱SÁNEĆ belief and worldview with the objective of fundamentally shifting human behaviour in these lands.

Legal personhood, however, is not without its challenges. First, Te Urewera was nearly returned directly to the Ngai Tuhoe, a Maori iwi (tribe), through a claims settlement. On the eve of finalizing the agreement, Prime Minister John Key backed out of the deal, indicating that returning the national park to the iwi was “a bridge too far.”[146] Instead, the national park was recognized as its own person. How is it that giving back undeniably stolen land to compensate for historical and ongoing injustices was more difficult than conceptualizing a legal arrangement unlike anything else that existed in the world? How is it that having a former national park own itself is a shorter bridge to cross than returning those lands to the Maori iwi? This should be striking. Giving the land back to the Maori could be seen as highly uncertain. It therefore seems to me that the only way to answer such a question is for a Board structure that acts for, and on behalf of, Te Urewera to allow the Aotearoa New Zealand government or people it trusts to have representation on the Board, and thus to speak for the river, to some extent. It also allows grandfathering in existing agreements, expectations, and uses. Potentially, then, such an approach more centrally aligns with continued capitalist and neoliberal agendas and ideologies around land, despite the hugely innovative step of recognizing Maori cosmology and the legal personhood of nature.

The second consideration is whether legal personhood is an appropriate concept in regard to Indigenous cosmologies. Underlying legal personhood is a broader moral claim about “personhood” more generally. Personhood has clearly been a gendered, racialized, and hierarchical concept throughout. Expanding what counts as a legal person, on its own, will not solve deep-seated societal issues, nor should it be expected to. The concept itself, however, may also have its own limitations. Western law and philosophy has spent significant effort to pin down what sets humans apart from the rest of nature (language, culture, rationality, sentience, agency, etc.).[147] As a result, personhood becomes an oppositional binary, meaning that to have “personhood” something else necessarily does not have personhood, nor the associated rights of that personhood status. To be a “subject” in this sense necessitates the existence of some (or many) other “objects.” In that sense, legal personhood is still a valuation of one thing over another, and it is reserved for the privileged few. Thus, while the category of “personhood” expands, is it not actually falling quite short of what Indigenous worldviews and cosmology envision? From within a relational ontology, no subject can exist in isolation. “Being alive is not dependent on any particular property that a thing might have but on having relationality or interconnectedness itself.” [148] In that sense, everything is alive and related through kinship. “Personifying” the environment, then, may in fact be backward in a certain sense. As Aaron Mills might frame it, regarding Anishinaabe law, the Earthway is premised on kinship and relationality, while “legal personhood,” as a component of a rights framework, is premised principally on autonomy.[149]

Granting legal personhood to the environment is a movement that hopes to stretch the rights framework. Within the rights framework, granting legal personhood to KELȽELMEĆEN (Orcas), or ṮEṮÁĆES (islands, or “Relatives of the Deep”), may provide some advantages and seem to more closely align with understandings of W̱SÁNEC laws and jurisdiction. Yet we have seen how legal personhood, like an NMCAR, is a tool within a colonial state and does not fully depart from all the structural limitations that are compatible with extractivism. While it may be a tool worth exploring, it should not be expected to be the only solution.

6.2. Indigenous Protected and Conserved Areas

In addition to layering the colonial legal tools of an NMCAR and legal personhood, there is also space for asserting W̱SÁNEĆ jurisdiction by declaring Indigenous Protected and Conserved Areas (IPCAs).

The Indigenous Circle of Experts (ICE) define the term IPCA broadly, indicating they are “lands and waters where Indigenous governments have the primary role in protecting and conserving ecosystems through Indigenous laws, governance, and knowledge systems.”[150] ICE was one of the bodies created by the federal government to provide recommendations on how to meet previously agreed upon targets in protecting biodiversity, which we can generally refer to as the Aichi Targets.[151] Both bodies created, the National Advisory Panel and ICE, issued extensive reports on how to meet these targets, with ICE, in particular, promoting the use of IPCAs.[152] Increased attention to IPCAs has resulted, including from Parks Canada.[153] The political climate is (at least currently) more receptive to the role of IPCAs, with high-profile non-profits taking notice as well.[154] Particularly relevant is Parks Canada foreseeing the layering of IPCAs and NMCARs, although what exactly that would look like remains unclear.

Whether the Aichi Targets are adequate or enforceable is beyond my scope. Relevant, however, is that the ICE Report is both aspirational and critical of the status quo regarding “parks” and Eurocentric understandings of “nature.” ICE takes the position that these approaches and conceptions are “no longer viable from an Indigenous rights and UNDRIP perspective.”[155] Rather, Indigenous approaches must be recognized as valid and more effective, given the increasing worldwide evidence showing “better results in conservation outcomes for areas under Indigenous tenure when compared with government-managed protected areas.”[156]

The structure and establishment of IPCAs varies significantly. Regardless of structure, IPCAs face four main barriers: jurisdiction, financial solutions, capacity development, and cultural keystone species.[157] As has been my focus through much of this paper, settler colonialism has sought to choke out Indigenous jurisdiction and decision-making authority. Establishing an IPCA necessarily confronts this reality. Currently, there is no distinct national legislation for recognizing or implementing IPCAs in Canada. Unsurprisingly, this also means accessing stable and substantial funding for new IPCAs is a challenge, as is building the capacity to operate IPCAs. Ultimately, while Canada has considered IPCAs principally in relation to the Aichi Targets, Indigenous groups are more concerned with exercising jurisdiction in relation to land, watersheds, and cultural keystone species, as opposed to rigid boundaries or specific targets not of our making. Additionally, IPCAs do also tend to have a stronger focus on restoration initiatives, as compared to the NMCAR framework, for example.

IPCAs also centre Indigenous jurisdictions: “Indigenous governments are responsible for setting the conservation standards for IPCAs. As such, they must have full scope to design their IPCAs to meet their individual and diverse needs.”[158] ICE suggests that “Indigenous governments have the primary role in determining the objectives, boundaries, management plans and governance structures for IPCAs as part of their exercise of self-determination.”[159] As such, even if W̱SÁNEĆ adopts an NMCAR, we need not be constrained by Canadian law, and an IPCA could declare a broader boundary. The Tsilhqot’in Nation and their establishment of the Dasiquox Tribal Park (or Nexwagwezʔan), which reaches beyond their Aboriginal title lands, is a great example of refusing to be confined by rigid boundaries. Similarly, an IPCA can also refuse to be bound by pre-existing parks and conservation areas previously established without Indigenous consent. Rather, an IPCA can lay a “blanket” over these existing structures, thereby creating a “connective tissue” that links together an interconnected network of protected and conserved areas.[160] Such an approach may be particularly advantageous in areas such as W̱SÁNEĆ, where a variety of parks and protected areas already exist and where there is impetus to re-declare W̱SÁNEĆ jurisdiction over those existing structures. From this perspective, the proposed NMCAR would simply be one layer underneath this blanket. In that regard, a W̱SÁNEĆ IPCA would extend beyond the NMCAR boundary and include all areas excluded within the NMCAR boundary. The W̱SÁNEĆ IPCA would also span both terrestrial and marine components of the territory. I will return to this possibility in more detail in the concluding section of this paper.

Ultimately, IPCAs may be undertaken cooperatively with governments, through unilateral declaration, or through a combination of both. While unilateral declarations of Tribal Parks support strong self-determination, they are not necessarily recognized by Canada and may experience additional challenges regarding enforcement and implementation. Where not recognized by Canadian law or the state, IPCAs remain valid assertions and reclamations of Indigenous jurisdiction. In such a context, an IPCA takes initiative in implementing and enforcing Indigenous laws and jurisdiction, leaving the onus on the state to intervene where any enforcement disputes arise. Limiting ourselves to working within state processes has meant that the creation of full Indigenous governance within Canada remains rare. In fact, even co-governance (distinct from co-management), where authority rests equally between both governing parties, represents about only 3.9 percent of lands and waters within Canada.[161] Perhaps, then, there is some benefit to avoiding thinking of the choice between and NMACR and an IPCA as an either/or scenario.

7. W̱SÁNEĆ IST (Moving W̱SÁNEĆ Forward)

An NMCAR, IPCA, and legal personhood offer their own unique advantages and disadvantages. It would be a mistake to think of choosing between these options as necessarily an either/or scenario. If W̱SÁNEĆ is intent on protecting the Salish Sea and the beings who call it home, perhaps, in our current context, a layering of different initiatives and mechanisms is appropriate, at least in the interim. Given the political nature of this decision, I can only offer one potential vision for balancing these difficult decisions.

The need to protect the marine area is clear and unavoidable, and W̱SÁNEĆ law requires it. It is also clear that conservation areas in the marine environment are most effective when they are large enough to effect change. “Small [marine protected areas (MPAs)] may be vulnerable to external threats and unable to effectively protect the species or habitats they were designed to conserve. Conversely, larger MPAs have been shown to optimize conservation benefits.”[162] However, simply designating a marine protected area does not necessarily mean it will meet its objectives. The larger the conservation area, the more funds and capacity required to implement and enforce it. Were all the funding and enforcement requirements of a large conservation area to fall upon W̱SÁNEĆ alone, it would be extremely difficult to uphold and enforce. Additionally, once significant levels of alienation have already occurred, particularly around areas of “critical infrastructure” that states will diligently work to protect,[163] grasping jurisdiction back becomes challenging. While land and jurisdiction back remains the ultimate goal, building partnerships with various bodies may help address the most immediate weaknesses in establishing an IPCA — the lack of funding and enforcement mechanisms inherent in such a declaration. However, much will come down to whether an NMCAR does enough to “mitigate the destructive effects . . . facilitated by a dense web of federal and provincial regulatory regimes.”[164]

An NMCAR leaves much intact in terms of jurisdiction and harms. For example, jurisdiction of fisheries remains with DFO, even if certain zoning requirements limit commercial and/or sports fisheries. A Native fishery remains possible within an NMCAR, as does the extent to which it is currently regulated by DFO or recognized by courts. What does not occur within an NMCAR is a recognition of the W̱SÁNEĆ right to “fish as formerly” in its full jurisdictional sense, which includes not simply a method of fishery, but a right and responsibility to fully regulate fisheries themselves within these waters. On a similar note, an NMCAR also does not have the jurisdiction to alter tanker traffic carrying bitumen and other products directly outside its boundary. “In terms of transportation, the circulation of goods, resources, and energy through territory is the very essence of capitalism today,” and current Canadian constitutionalism means an NMCAR must leave this basically intact.[165] In short, the NMCAR is simply not a tool that will fully honour and reinscribe W̱SÁNEĆ jurisdiction. This is not to say that building partnerships has no benefits, but that negotiating such a tool with governments requires vigilance and can’t be seen as a final solution to jurisdictional tensions. In fact, we must remain wary of the risk that doing so reinscribes relations that end up prolonging the same struggle. Any negotiated agreement that fails to account for Indigenous governance will inevitably result in continued frictions:

Land-use clashes are inevitable and widespread throughout the country precisely because Indigenous landholding systems are subject to imposed incursion, and outright denial, violating Indigenous laws and trampling on invisiblized turfs of Indigenous responsibility and belonging.[166]

In terms of long-term goals, the IEȽȻIȽTEL Accord serves as a solid foundation for moving W̱SÁNEĆ and our Indigenous neighbours collectively forward. The IEȽȻIȽTEL Accord is a product of our own laws and protocols for allying together out of common necessity. Canadian law and the modern treaty apparatus has too often used notions of “overlap” to restrict the advancement of Indigenous rights and governance. Reclaiming space outside the Canadian legal system by revitalizing long-existing mechanisms and protocols both within and between Indigenous traditions is a clear strength and in line with IPCA best practices. Continuing to assert Indigenous jurisdiction in this manner “undermines the sovereignty of the Canadian state” in a way that an NMCAR cannot.[167]

With the IEȽȻEȽTEL Accord in place, it is possible to assert an IPCA over a broad section of our collective traditional territories. The “boundary” of this declared area should flow directly from our shared understandings of these lands, waters, and beings who call them home, as well as an understanding of what it would actually take to effect environmental stewardship of this area. In other words, the main strength of an IPCA is that it can refuse to be bound by any imposed jurisdictional limitations within Canadian law. An IPCA can flow from Indigenous jurisdiction, not Canadian. In fact, given the arbitrary and imposed nature of the international border dissecting the Southern Gulf Islands (Canada) and the San Juan Islands (US), there is equal opportunity to partner with our relatives, including the Lummi, on the US side in declaring IPCAs. The movement of KELȽELMEĆEN is not limited by this invisible boundary in the same way humans are, nor was this arbitrary line relevant to our traditional relationships and governance with our Indigenous relatives. As W̱SÁNEĆ, we have place-names and creation stories, and thus responsibilities, to what are now the San Juan Islands, just as much as we do to the Southern Gulf Islands. While the international border does present material implications for our way of life, we need not take it for granted. There is no reason an IPCA could not span the international border.

The central advantage of an IPCA is the flexibility to design and structure it around our own laws, processes, and priorities, which is possible in that an IPCA need not be formally recognized by Canada. That strength, however, is also a weakness to the extent that absent a partnership agreement with Canada there is significantly less potential for funding, enforcement, capacity, and general public recognition, along with an increased potential for litigation raised against the IPCA and its enforcement. The establishment and long-term success of a large IPCA may therefore in part (particularly initially) hinge on developing relationships and using other tools outside that framework. The proposed NMCAR, for example, offers the potential of a marine conservation zone that is far larger than many other mechanisms available within Canadian law. Through that framework also comes funding and enforcement mechanisms, along with the possibility to build capacity in Indigenous Guardianship programs and the like. It also risks, however, leading to deals and unwanted compromises with industry and government and increasingly committing W̱SÁNEĆ to a bureaucratic framework that exerts structural and subjective power.

While an NMCAR may present its own list of weaknesses and trade-offs, its conservation potential necessitates careful consideration. This consideration should include acknowledgement that our relatives, KELȽELMEĆEN (Orca), are calling upon us to help, which is what J35 was doing as she carried her dead calf for seventeen days for all to see. We have to take that call seriously, not simply put our own interests as W̱SÁNEĆ peoples first. At the same time, how we enter into and agree to use the NMCAR framework matters, as does the need to not lose touch with the long-term goals and cultural groundings of the IPCA.

I would favour viewing an NMCAR as a tool of Canadian law, not detracting in any way from the fact that the IPCA and W̱SÁNEĆ jurisdiction exists completely outside and independently of that framework. With that said, we may choose to help Canada develop and implement that tool and to develop more respectful relationships with the Salish Sea and the beings who call it home. We should, however, based on past harms and injustices, and the assimilative powers of these types of agreements, choose this strategy cautiously and in limited instances, as well as on the condition that we negotiate a strong co-governance agreement based on at least a consensus model, similar to that of Gwaii Haanas. Like the Haida model, our negotiated agreement should disagree on the question of who has sovereignty, but from my perspective, it should go farther and also disagree on the legitimacy of the sovereignty paradigm, period. As W̱SÁNEĆ, we are but one of the interdependent and interconnected beings who call these lands and waters home. In other words, while we may carve out jurisdictional space, we must not forget to have that jurisdiction informed by an “ontology of care.”[168] We do not want the assimilative power of these types of agreements to displace our understandings and responsibilities of care within our own laws and jurisdiction.

In terms of a governance structure, NMCARs do require the development of a co-management agreement and management board. These types of structures do present Indigenous groups with a range of powers and authorities and the opportunity to bring other agencies (such as DFO) to the table, even while remaining limited and firmly rooted in a sovereignty and rights-based paradigm that is problematic. Even with an overarching IPCA in place, how we conceptualize and negotiate these structures matters. The IEȽȻIȽTEL Accord has created an Indigenous management board as part of its structure. Through protocol and ceremony, the IEȽȻIȽTEL Accord sets out how the Nations will work together, and a structure through which relationships with Parks Canada, for example, will take place. The IEȽȻIȽTEL Accord incorporates a mechanism which fosters collaboration between Indigenous Nations, while also balancing the independence of those member Nations. My main hesitance, generally speaking, with these types of management boards and structures is how they work.

If a management board becomes a decontextualized and bureaucratic body, re-entrenching the cultural and legal assumptions we initially aimed to escape, then it is simply not worthwhile. As for the IEȽȻIȽTEL Accord, as Justin Fritz states,

While it remains important to make decisions on behalf of our Nations, the Indigenous Management Board was created with a recognition of our interconnectedness with each other and with all our non-human relatives — including Salmon people, ṮEṮÁĆES, SȽEMEW̱ — who call these lands home. According to our snu’’uyulh / SKÁLs, our non-human relatives have their own rights and responsibilities to fulfill as autonomous beings. They are their own “legal persons.” While acting on behalf of, and in the name of, our homelands and those beings within it, the Indigenous Management Board will strive to honour this without prioritizing the interests of our individual Nations.[169]

The way in which Te Pou Tupua has strived to be “the human face” of Te Awa Tupa (the Whanganui River), and how Te Kawa o Te Urewera has strived to manage people for the benefit of the land, as opposed to managing the land for the benefit of people, are insightful examples. Since relationships are lived and embodied, attention to these commitments must remain at the forefront in order to avoid the risk of “regulatory capture.”

Ultimately, an IPCA and an NMCAR need not be seen as incompatible. In fact, an NMCAR might be a tool to help build the capacity and efficacy of an IPCA. For example, there is nothing stopping us from taking the funding, enforcement, and capacity building (for example, a Guardian program) provided through an NMCAR and co-governance agreement and repurposing them to apply throughout the entire IPCA area (not just the boundaries of the NMCAR and Gulf Islands National Park Reserve (GINPR)). While Parks Canada’s jurisdiction might stop at the NMCAR boundary, or any excluded area within it, W̱SÁNEĆ jurisdiction does not. In fact, I see an IPCA as a “blanket” that overlays not just an NMCAR, but all other bodies and existing protected areas. It may also serve as an impetus for creating additional protected areas, or smaller Tribal Parks, within the broader IPCA boundary.

Within W̱SÁNEĆ territory there are federal parks, provincial BC Parks, conservancies, municipalities, the Islands Trust, non-government conservation organizations, and any number of ecological reserves and nature sanctuaries. By declaring an IPCA over a broad territory, we also assert that all the operations and existing bodies within the area fall within our IPCA and are therefore subject to our laws and jurisdiction. As such, we call on all these different levels of government and other bodies to work with us and to help build capacity for the greater protection, care, and responsibilities to these areas. In other words, we use the IPCA as pressure to insert W̱SÁNEĆ jurisdiction where it was previously ignored and choked out.

In terms of using new tools within the “blanket” of an IPCA, the legal personhood of nature is one possibility. While legislation creating legal personhood in the environment reinforces significant jurisdictional authority for the state, the Te Urewera Act, for example, does provide a dent in the overwhelming arrogance of claiming an almost “universal assertion of human ownership” over the entire planet.[170] To dent that arrogance and to manage people for the benefit of place, as the Maori have done in line with their cosmology, is an important act of Indigenous law revitalization. With respect to W̱SÁNEĆ, what benefits might flow from recognizing KELȽELMEĆEN (Orca) as a legal person with rights? In W̱SÁNEĆ we already see KELȽELMEĆEN as relatives, but might it create a shift in the broader public’s conceptions that could prove beneficial? Or, in cases where land is returned to W̱SÁNEĆ, though under the condition of being held under certain restrictive environmental covenants, such as SISȻENEM,[171] is there a possibility that the island owning itself presents a more suitable alternative? I suspect the answer is context dependent, but the point is that an IPCA still leaves room for incorporating such tools under its umbrella, should it be desirable to do so.

In the end, an IPCA is an opportunity to assert and reclaim our place-names within W̱SÁNEĆ territory, to emphasize the creation stories attached to them, and the laws and relationships that follow. It is a mechanism for cultural regeneration, healing, connecting with the land, and building economies of reciprocity. It is also a mechanism to declare local, national, and global actions and structures that create harms within those lands as a direct violation of our laws in that they prevent us from upholding the responsibilities we have to our relatives within our homelands, even if our ability of enforcement is currently restricted to those available through a tool such an NMCAR. The strategy is to reclaim and assert W̱SÁNEĆ jurisdiction, as opposed to seeking permission from the state. The ultimate goal remains the same: to re-create ȻEȻEÁT SELI (“a life of dignity”) for all those within these lands and waters.

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*      Robert is WSÁNEĆ and a member of the Tsawout First Nation, his home community; he carries the name YELKATŦE, which was passed to him by his late grandfather, Earl Claxton Sr. He is an Assistant Professor at the Allard School of Law, and his publications cover a range of aspects relating to Indigenous law and Indigenous legal theory, including a focus on legal pluralism, Indigenous language revitalization, and Indigenous spirituality. 

[1]      Janet Poth, ed, Saltwater People: As Told by Dave Elliott Sr. (Saanich: School District 63, 1990).

[2]      Shiri Pasternak, Grounded Authority: The Algonquins of Barriere Lake Against the State (Minneapolis: University of Minnesota Press, 2017) at 55.

[3]      Aspects of this section have been previously published as an essay on the Centre for International Governance Innovation website. See Robert YELḰÁTŦE Clifford, “Saanich Law and the Trans Mountain Pipeline Expansion” in Centre for International Governance Innovation, Digital Essay Series, Environmental Challenges on Indigenous Lands (4 July 2019).

[4]      Tsawout presented at both the original NEB hearings as well as the reconsideration hearings. The Tsartlip First Nation also participated in reconsideration hearings on this date, and it was also in opposition to the project. I also acknowledge that the project impacts a significant number of Indigenous groups along the pipeline and tanker route. I approach my thoughts in this section from a W̱SÁNEĆ perspective, as opposed to offering a pan-Indigenous response.

[5]      Government of Canada, “Saanich Tribe – South Saanich” Treaty Texts – Douglas Treaties (1852), online: www.rcaanc-cirnac.gc.ca/eng/1100100029052/1581515763202 [Douglas Treaty]. Note that the South Saanich and North Saanich Treaties have identical wording, except for the description of lands which they cover. See also Nicholas Xumthoult Claxton, “ISTÁ SĆIÁNEW, ISTÁ SXOLE ‘To Fish as Formerly’: The Douglas Treaties and the W̱SÁNEĆ Reef-Net Fisheries” in Leanne Simpson, ed, Lighting the Eighth Fire: The Liberation, Resurgence, and Protection of Indigenous Nations (Winnipeg: Arbeiter Ring, 2008).

[6]      National Energy Board, Trans Mountain Expansion Project Reconsideration Report (MH-052-2018, February 2019), online: https://apps.cer-rec.gc.ca/REGDOCS/Item/Filing/A98021 at 1.

[7]      Pasternak, above note 2 at 2.

[8]      Ibid.

[9]      See Lori Cuthbert & Douglas Main, “Orca Mother Drops Calf, After Unprecedented 17 Days of Mourning” National Geographic (13 August 2018), online: www.nationalgeographic.com/animals/article/orca-mourning-calf-killer-whale-northwest-news.

[10]     For an excellent analysis of how fisheries as common property and the corresponding right not to be excluded do the work of dispossession, see Doug Harris, Landing Native Fisheries: Indian Reserves & Fishing Rights in British Columbia, 1849–1925 (Vancouver: UBC Press, 2008).

[11]     Pasternak, above note 2 at 18.

[12]     Rob Nixon, Slow Violence and the Environmentalism of the Poor (Cambridge: Harvard University Press, 2011).

[13]     Pasternak, above note 2 at 55.

[14]     Ibid at 5.

[15]     Paul Nadasdy, who has worked extensively on analysing the impacts that these types of co-management agreements have on inherent Indigenous governance structures, makes this point and has been influential in my thinking. See Paul Nadasdy, Sovereignty’s Entailments: First Nation State Formation in the Yukon (Toronto: University of Toronto Press, 2017) and Paul Nadasdy, Hunters and Bureaucrats: Power, Knowledge, and Aboriginal-State Relations in the Southwest Yukon (Vancouver: UBC Press, 2003).

[16]     Pasternak, above note 2 at 55.

[17]     Ibid at 71.

[18]     Ibid at 123.

[19]     Robert YELḰATŦE Clifford, “W̱SÁNEĆ Legal Theory and the Fuel Spill at SELE₭TEȽ (Goldstream River)” (2016) 61:4 McGill Law Journal 755 [Clifford, “W̱SÁNEĆ Legal Theory”].

[20]     Harris, Doug, above note 10.

[21]     Earl Claxton & John Elliott, The Saanich Year (Brentwood Bay: Saanich School Board and Saanich School District #63, 1993).

[22]     Pasternak, above note 2 at 115.

[23]     See Cole Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia (Vancouver: UBC Press, 2002). I also summarize this in my dissertation, Robert YELḰÁTŦE Clifford, The Old People are the Song, and We are Their Echo: Resurgence of W̱SÁNEĆ Law and Legal Theory (PhD Dissertation, Osgoode Hall Law School, York University, 2022) [unpublished].

[24]     Paul Tennant, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849-1989 (Vancouver: UBC Press, 1990) at 17.

[25]     Harris, Doug, above note 10 at 26.

[26]     The Oregon Treaty, United States and United Kingdom, 15 June 1846.

[27]     Harris, Doug, above note 10 at 8.

[28]     Douglas Treaty, above note 5. See also Harris, Doug, above note 10 at 187.

[29]     Ibid at 29, quoting Barclay to Douglas, 16 December 1850, in Bowsfield, ed, Fort Victoria Letters, 96. While Douglas is speaking to the Treaties created just prior to those created with W̱SÁNEĆ in 1852, the correspondence does speak to Douglas’s intentions regarding the promise to protect the right to “fish as formerly.”

[30]     Harris, Cole, above note at 23. We should note that there were various dynamics at play. There was a goal of assimilation of Indigenous peoples, which having Indigenous people take up farming would have fostered. At the same time, there was limited farming land, which needed to be opened up to settlers. Additionally, local officials were conscious of preventing too much unrest from Indigenous populations, and allowing for fisheries did much to quell unrest.

[31]     Lissa K. Wadewitz, The Nature of Borders: Salmon, Boundaries, and Bandits on the Salish Sea (Seattle: University of Washington Press, 2012) at 68.

[32]     Ibid.

[33]     Ibid at 72. See also Great Britain & United States, John Jay’s Treaty, 19 November 1794 (Senate Ratified June 1795).

[34]     Harris, Doug, above note 10 at 31.

[35]     Ibid at 4.

[36]     Ibid at 25. See also 35 for more on canning technology. Without canning technology, it was not possible to ship fish any significant distance without them spoiling.

[37]     Ibid.

[38]     Abundance was not the result of an inability to capture large numbers of fish. In fact, the reef-net fishery was later banned based on the stated rationale that it functioned too well.

[39]     Wadewitz, above note 31 at 75.

[40]     Wadewitz, ibid, notes how “For years many canners instructed their workers to use only the prime bellies of the fish and throw out the rest” (at 138). Additionally, “[i]n 1901 the B.C. commissioner of fisheries found that canneries on both sides of the international border not only filled every can available, but they threw away more salmon than they used” (at 139).

[41]     Ibid at 145 and 165.

[42]     Ibid at 109.

[43]     See Fisheries Regulations for the Province of British Columbia, ss 1 and 6, Order-in-Council, 3 March 1894, Canada Gazette, vol 27 at 1579.

[44]     Harris, Doug, above note 10 at 113.

[45]     For example, in 1927 the Dominion government modified the Indian Act to make it illegal to raise funds for Native land claims or title cases without the permission of Indian Affairs. See Indian Act, RSC 1927, c 98, s 141.

[46]     Harris, Doug, above note 10 at 188.

[47]     Aaron James Mills (Waabishki Ma’iingan), “Miinigowiziwin: All That Has Been Given for Living Well Together – One Vision of Anishinaabe Constitutionalism”(PhD Dissertation, University of Victoria, Faculty of Law, 2019) [unpublished].

[48]     Francine Mercier & Claude Mondor, Sea to Sea to Sea: Canada’s National Marine Conservation Areas System Plan (1995) Parks Canada, Department of Canadian Heritage, online: parkscanadahistory.com/publications/sea-to-sea-to-sea.pdf [CNMCA System Plan] at 7.

[49]     Jon Lien & Robert Graham, eds, Marine Parks and Conservation: Challenge and Promise, vols 1 & 2, The National and Provincial Parks Association of Canada, NPPAC Henderson Park Book Series No 10, 1985. The National Marine Parks Policy was revised in 1994. See Parks Canada, Parks Canada Guiding Principles and Operational Policies, Part II – Activity Policies: National Marine Conservation Areas Policy, 1994 [National Marine Conservation Areas Policy].

[50]     Fathom Five National Marine Park is on the tip of the Bruce Peninsula on Georgian Bay of Lake Huron.

[51]     See CNMCA System Plan, above note 48 at 10–11 for more details.

[52]     Canada National Marine Conservation Areas Act, SC 2002, c18, assented to 2002-06-13 [CNMCA Act], s 4(1).

[53]     The three established NMCAs are Saguenay-St. Lawrence Marine Park (established under the Saguenay-St. Lawrence Marine Park Act, SC 1997, c 37), Lake Superior National Marine Conservation Area (established under the Lake Superior National Marine Conservation Area Act, SC 2015, c 38), and Fathom Five National Marine Park (Government of Canada/Government of Ontario, 1987, Federal/Provincial Agreement for the Establishment of the proposed National Park in the Township of St. Edmunds, Environment Canada, Ottawa, Ontario). The lone NMCAR is Gwaii Haanas National Marine Conservation Area Reserve and Haida Heritage Site (established as an NMCAR under the CNMCA Act, Schedule 2).

[54]     CNMCA Act, ss 2(4) and 4(2).

[55]     CNMCA System Plan, above note 48 at 8 and CNMCA Act, s 4(3).

[56]     CNMCA System Plan, above note 48 at 8 and CNMCA Act, s 2(2). Aboriginal rights are, of course, constitutionally protected rights, which legislation such as the CNMCA Act could not infringe without justification.

[57]     CNMCA Act, s 9(1). Each management plan is accessible online.

[58]     See ibid, ss 9(1) and 9(4) for more on these points.

[59]     CNMCA System Plan, above note 48 at 8. The Preamble to the CNMCA Act also specifically identifies the need to “consider traditional ecological knowledge in the planning and management of marine conservation areas.”

[60]     CNMCA System Plan, above note 48 at 8.

[61]     Ibid and CNMCA Act, s 5(2). Also note that, in the Gwaii Haanas agreement, the preamble to the management agreement does state that the parties agree to disagree on the point of sovereignty, and thus who “owns” the lands and waters in question.

[62]     See Parks Canada, Parks Canada’s Policy Framework: For the management of national marine conservation areas, Backgrounder (May 2019) [Parks Canada, Backgrounder] at 11 for more details.

[63]     Ibid at 19 & 20. For W̱SÁNEĆ, respecting the spirit and intent of the treaties would imply not just the written text of the Douglas Treaty but the oral version of the Douglas Treaty. While the policy indicated here speaks to the spirit and intent of treaties, the legislation (CNMCA Act) makes no specific mention of this approach. This is noteworthy given that policy holds less sway than legislation.

[64]     Parks Canada explicitly views an NMCAR as a process and tool toward reconciliation (ibid at 19).

[65]     Ibid.

[66]     Ibid at 12.

[67]     Parks Canada, Protecting Canada’s Marine Heritage: Proposed policy and regulations for Canada’s national marine conservation areas, Discussion Paper (2019) [Parks Canada, Discussion Paper] at 9.

[68]     Ibid. See 10–11 for a description of the purposes of each of those four zones.

[69]     CNMCA Act, s 4(4).

[70]     The Saguenay-St. Lawrence Marine Park, a location of heavy ship traffic and a critical beluga habitat, is, however, an interesting example of regulating marine travel and speed within an NMCA (Parks Canada, Backgrounder, above note 62 at 17). For a study on the impact of vessel speed, see Vancouver Fraser Port Authority, “ECHO Program Slowdown Trial — Interim Findings” (1 March 2018), online: www.portvancouver.com/wp-content/uploads/2018/03/Interim-Findings-of-the-Vessel-Slowdown-Trial-Updated-March-1-2018.pdf.

[71]     Parks Canada, Backgrounder, above note 62 at 16n4.

[72]     CNMCA System Plan, above note 48 at 12.

[73]     See Parks Canada, “Southern Strait of Georgia Feasibility Study – Introduction” National Marine Conservation Areas, online: www.pc.gc.ca/en/amnc-nmca/cnamnc-cnnmca/dgs-ssg/intro.

[74]     The decision to focus in on the Southern Gulf Islands location for a potential NMCA has seemed to go somewhat hand-in-hand with the decision to establish the Gulf Islands National Park Reserve (GINPR), which was established without consultation with W̱SÁNEĆ, despite clear Douglas Treaty and Aboriginal rights in the area. In other words, the role of parks in dispossession is not new.

[75]     CNMCA System Plan, above note 48 at 12.

[76]     Parks Canada, National Marine Conservation Areas, “What is a Feasibility Study?” online: www.pc.gc.ca/en/amnc-nmca/cnamnc-cnnmca/dgs-ssg/contexte-background/quoi-what.

[77]     Parks Canada, National Marine Conservation Areas, Study Area, online: https://parks.canada.ca/amnc-nmca/cnamnc-cnnmca/dgs-ssg/region-area [Parks Canada, Study Area].

[78]     Parks Canada, Proposed National Marine Conservation Area Reserve Southern Strait of Georgia: Project Update, Spring 2012 [Parks Canada, Southern Strait of Georgia 2012 Update] at 3.

[79]     The W̱SÁNEĆ Leadership Council Society promotes the interests and enhances recognition of the rights of W̱SÁNEĆ First Nations. While the Paquachin First Nation has not yet signed on to become part of the WLC, the possibility remains open and coordination between the WLC and the Paquachin First Nation remains a priority. The Tsawout First Nation, while initially part of the WLC, has recently withdrawn for now as well.

[80]     The IEȽȻIȽTEL or Nutśa matt kws ‘í shul’ hwilasmut tu Skwul ‘í kwthe’ Accord was signed on 27 November 2019. The parties are the member First Nations of the W̱SÁNEĆ Leadership Council, the member Bands of the Cowichan Nation (Cowichan Tribes, Halalt First Nation, Lyackson First Nation, Penelakut Tribem, and Stz’uminus First Nation), the Malahat Nation, Snuneymuxw First Nation, and the Paquachin First Nation [IEȽȻIȽTEL Accord].

[81]     CNMCA System Plan, above note 48 at 13.

[82]     This is done through the CNMCA Act, s 4(1). See also s 7 for the process by which this occurs.

[83]     CNMCA System Plan, above note 48 at 13.

[84]     Parks Canada, Southern Strait of Georgia 2012 Update, above note 78 at 4–5.

[85]     Parks Canada, Study Area, above note 77. Note that excluded areas within the proposed boundary are not coloured.

[86]     See Parks Canada, Proposed Southern Strait of Georgia National Marine Conservation Area Reserve Atlas (2009) [Parks Canada, Atlas] at 78 for a map illustrating “Pacific Herring Spawning Areas” within the proposed NMCAR boundary.

[87]     The exclusion of SNIDȻEȽ (Tod Inlet) is particularly troubling and ironic given that this area was where the first W̱SÁNEĆ ancestor, SȽEMEW̱, came to the earth in the form of rain and helped form the ocean, lakes, and rivers, as well as shape the land, and where the first W̱SÁNEĆ village site was located. It is in that sense that water is sacred and has spiritual power, and why past harms and damage done to that site is particularly troubling.

[88]     Teaching of John Elliott (27 February 2019), W̱SÁNEĆ Leadership Council Office.

[89]     Tsawassen First Nation & The Governments of Canada and British Columbia, Tsawassen First Nation Final Agreement (2010), online: https://rcaanc-cirnac.gc.ca/eng/1100100022706/1617737111330.

[90]     Also note that the W̱SÁNEĆ, as part of the SENĆOŦEN Alliance, intervened in the development of this treaty in that the Tsawassen First Nation Final Agreement, ibid, incorporates areas we consider also within W̱SÁNEĆ territory and overlooks the fact that W̱SÁNEĆ had seasonal fishing rights at the mouth of the Fraser River. Diamon Jenness, for example, recorded that “The Saanich had an immemorial claim to the fishing off Point Roberts, near the mouth of the Fraser River”: Richling, ed, The W̱SÁNEĆ and Their Neighbours: Diamond Jenness of the Coast Salish of Vancouver Island, 1935 (Oakville: Rock Mills Press, 2016) at 18.

[91]     See Parks Canada, Atlas, above note 86 at 91 for a map of “Critical Killer Whale Habitat.”

[92]     Ibid at 61.

[93]     Trailmark Systems, All Vessel Traffic 2017, map (November 2018). Requirements to carry an AIS are based on certain factors such as vessel size.

[94]     Parks Canada, Spectrum of Cooperative Management Agreements at Parks Canada (23 June 2017), online: https://parks-parcs.ca/wp-content/uploads/2021/06/Spectrum_of_Cooperative_Management_Agreements_at_PCA_23.June_.2017.pdf [Parks Canada, Spectrum Report] at 3.

[95]     Personal communication, 4 March 2022, W̱SÁNEĆ Leadership Council and Parks Canada representatives.

[96]     Parks Canada, Spectrum Report, above note 94 at 29–30.

[97]     Ibid at 8 for more on this legal context.

[98]     In the context of W̱SÁNEĆ and the Douglas Treaty, it is the difference between beginning with the written text of the Treaty and subsequent court cases as the “legal context,” and beginning with an understanding of our oral history, legal tradition, and ontological grounding, which takes a completely different starting point on core principles of the relationships being addressed, including the ability to sell or own land in a property law sense.

[99]     Parks Canada, Spectrum Report, above note 94 at 1.

[100]    Ibid at 11T1.

[101]    Ibid.

[102]    Ibid.  See the heading “Legal Context” for Model 2: Cooperative Management Board.

[103]    Ibid at 14.

[104]    Ibid.

[105]    In 1985, the Haida Nation declared the creation of a Haida Heritage Site in direct response to logging and set up a blockade on Lyell Island. In response to the anti-logging protests, the governments of Canada and British Columbia worked to designate Gwaii Haanas as a National Park Reserve. This was done through the South Moresby Memorandum of Understanding and then the South Moresby Agreement; see Province of British Columbia, Order of the Lieutenant Governor In Council, Order in Council No 1350, approved and ordered 12 July 1988, with Appendix A To O/C /88 being “Memorandum of Agreement Between Federal/Provincial Governments – South Moresby National Park (May 1988), online: www.bclaws.gov.bc.ca/civix/document/id/oic/arc_oic/1350_1988.

[106]    The Government of Canada & the Council of the Haida Nation, Gwaii Haanas Agreement (1993), online: www.haidanation.ca/wp-content/uploads/2017/03/GwaiiHaanasAgreement.pdf.

[107]    Ibid, s 1.1.

[108]    Ibid, ss 1.2 and 1.3.

[109]    Ibid, s 3.4. See ibid, s 4.0 for more on the Archipelago Management Board.

[110]    Ibid, s 5.0. In the event of “clear and final disagreement,” decisions and actions are “held in abeyance” while being referred back to both the Government of Canada and the Council of the Haida Nation in the hopes of reaching an agreement, with the potential of going to a neutral third party (s 5.3).

[111]    Archipelago Management Board, Gwaii Haanas National Park Reserve and Haida Heritage Site: Management Plan for the Terrestrial Area (2003), online: www.pc.gc.ca/en/pn-np/bc/gwaiihaanas/info/coop/plans.

[112]    Government of Canada & Council of the Haida Nation, Gwaii Haanas Marine Agreement (2010), online: www.pc.gc.ca/en/pn-np/bc/gwaiihaanas/info/coop/plans.

[113]    See Haida Nation v Canada (Minister of Fisheries and Oceans), 2015 FC 290 [Haida Nation 2015].

[114]    Ibid at paras 53 and 55.

[115]    Ibid at para 54. Ultimately, the court found a failure to consult and a finding of irreparable harm and granted the injunction.

[116]    Ibid at para 62.

[117]    Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014) at 11.

[118]    Haida Nation & Parks Canada, Gwaii Haanas Gina ‘Waadlux̱an Kilguhlga Land-Sea-People Management Plan (2018), online: www.pc.gc.ca/en/pn-np/bc/gwaiihaanas/info/consultations/gestion-management-2018).

[119]    Ibid at 2. The plan uses six guiding principles (at 7) and seven goals, each with their own particular objectives and targets (at 13–27). These goals are supported through zoning processes for both terrestrial and marine components, and Haida’s role in actively implementing zoning restrictions relies on the Haida Watchmen Program. See 28 for more.

[120]    The Council of the Haida Nation is comprised of fourteen elected representatives.

[121]    The Haida people are a matrilineal society consisting of a number of different clans, each with its own chief. Each of the hereditary chiefs have come together through signing the Haida Accord (13 May 2013), online: www.haidanation.ca/wp-content/uploads/2017/03/the_haida_accord.pdf. They agreed to work collectively as a Nation for the well-being of Haida Gwaii. The Haida Accord is also constantly renewed according to Haida protocols.

[122]    Haida Nation, Constitution of the Haida Nation (adopted by the House of Assembly on 19 October 2018), online: www.haidanation.ca/haida-constitution/, art 5, s 2.

[123]    Parks Canada, Spectrum Report, above note 94 at 11T1.

[124]    Historically, for example, W̱SÁNEĆ and Cowichan warriors have allied together to protect ourselves and areas important to us when facing raiders from the north. We were also brought together by ceremonial protocol in reinvigorating our unity in this regard.

[125]    See Nadasdy, Sovereignty’s Entailments, above note 15 for more.

[126]    Clifford, above note 19.

[127]    See David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save The World (Toronto: ECW Press, 2017) [Boyd, The Rights of Nature].

[128]    Ecuador explicitly provided constitutional right to Nature in 2008, and Bolivia followed suit in 2009. Bolivia strengthened these rights in 2010 and again in 2012 with added legislation. See David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: UBC Press, 2012) for more details.

[129]    Ibid at 249.

[130]    The Maori are signatories to the Treaty of Waitangi, which has both an English and a Maori version. The two versions differ on what was being agreed to. See Treaty of Waitangi/Te Tiriti o Waitangi, 6 February 1840. Both Maori and W̱SÁNEĆ worldview maintain that nature cannot be seen as a property interest. The Douglas Treaties were based on the then recent Waitangi Treaty between the Maori and New Zealand government. See Jacinta Arianna Ruru, Settling Indigenous Place: Reconciling Legal Fictions in Governing Canada and Aotearoa New Zealand’s National Parks (PhD Dissertation, University of Victoria, Faculty of Law, 2012) for more on this topic. Ruru is a leading scholar with many publications relating to the granting of legal personhood to nature.

[131]    Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, 2017 No 17, 20 March 2017, s 14(1).

[132]    Ibid, s 18(2).

[133]    Ibid, s 14(2).

[134]    Ibid, s 12.

[135]    Ibid, s 13.

[136]    Ibid, s 64.

[137]    Ibid, s 64(4)(a). A fisheries coordination group must be created in the similar manner (s 66).

[138]    Ibid, s 16.

[139]    Te Urewera Act 2014, 2014 No 51, 27 July 2014 [Te Urewera Act]. No meaningful consultation was done in creating this national park, nor were any Maori interests expressly provided for. See Boyd, The Rights of Nature, above note 127 at 150.

[140]    Te Urewera Act, above note 139 at 12.

[141]    Ibid, ss 11(2)(a) & 11(2)(a)(i).

[142]    Te Urewera Board, Te Kawa o Te Urewera Management Plan, online: www.ngaituhoe.iwi.nz/te-kawa-o-te-urewera.

[143]    Ibid.

[144]    Maiora Clarke Puketapu-Dentice, He Mauri to Te Turewera: Understanding Legal Entities: The Transition from Resource Management to Human Management with Te Urewera (Master of Planning thesis, University of Otago, 2018) at 55–56.

[145]    Ibid at 11.

[146]    Boyd, The Rights of Nature, above note 127 at 144–46.

[147]    Such debates can be found in the works of Aristotle, Rene Descartes, Immanuel Kant, and others.

[148]    Brian Burkhart, Indigenizing Philosophy Through the Land: A Trickster Methodology for Decolonizing Environmental Ethics and Indigenous Futures (East Lansing: Michigan State University Press, 2019) at 200.

[149]    Mills, above note 47. Note that this is my own interpretation, framed through language used by Mills.

[150]    We Rise Together: Achieving Pathway to Canada Target 1 through the creation of Indigenous Protected and Conserved Areas in the spirit and practice of reconciliation, the Indigenous Circle of Experts’ Report and Recommendations (March 2018), online: www.changingtheconversation.ca/sites/all/images/Biodiversity%20Library/WeRiseTogetherReport.pdf [ICE, We Rise Together] at 35. The term IPCA is inclusive of “Tribal Parks, Indigenous Cultural Landscapes, Indigenous Protected Areas, and Indigenous conserved areas” (at 5).

[151]    In October 2010, in Japan, the Conference of the Parties for the United Nations’ Convention on Biological Diversity adopted the Strategic Plan for Biodiversity, which has become known as the Aichi Targets. The Aichi Targets set out a range of objectives relating to protecting biodiversity, to be met by 2020. For its part, in 2015, Canada adopted four goals and nineteen targets in an effort to meet its Aichi Targets commitment (Environment and Climate Change Canada, 2020 Biodiversity Goals and Targets for Canada (2016), online: https://static1.squarespace.com/static/613fb778a76e244eef08775d/t/619a942bd9d01b27f1cf83c3/1637520474350/2020_Biodiversity_Goals_Targets_for_Canada.pdf.

[152]    See ICE, We Rise Together, above note 150.

[153]    I was part of a two-part international dialogue organized by Parks Canada on this topic. See Parks Canada, “Indigenous-Crown Protected Area Partnerships Dialogues” (December 2020 & April 2021).

[154]    David Suzuki Foundation, Tribal Parks and Indigenous Protected and Conserved Areas: Lessons Learned From B.C. Examples (August 2018), online: https://davidsuzuki.org/wp-content/uploads/2018/08/tribal-parks-indigenous-protected-conserved-areas-lessons-b-c-examples.pdf [Suzuki Foundation, Tribal Parks].

[155]    ICE, We Rise Together, above note 150 at 19.

[156]    Ibid at 33.

[157]    Ibid at 11.

[158]    Ibid at 6.

[159]    Ibid at 36.

[160]    Ibid at 24.

[161]    Ibid at 77.

[162]    Carolyn K. Robb, Karin M. Bodtker & Kim Wright, “Marine Protected Areas in the Canadian Pacific: Do They Fulfill Network Criteria?” (2015) 43:3 Coastal Management 253 at 263.

[163]    Pasternak defines critical infrastructure as “a vague designation for fixed capital that forms the object of international security collaboration between states and industry to protect global supply chains” (above note 2 at 223).

[164]    Ibid at 64.

[165]    Ibid at 242.

[166]    Ibid at 121.

[167]    Ibid at 270.

[168]    Ibid at 6.

[169]    Justin Fritz is the former policy-analyst at the W̱SÁNEĆ Leadership Council, and we have worked together to try to capture a descriptive orientation for the board that is rooted in W̱SÁNEĆ worldview. Justin Fritz, W̱SÁNEĆ Leadership Council internal document in author’s possession.

[170]    Boyd, The Rights of Nature, above note 127 at xxvi. There are a few small exceptions — Marie Byrd Land, Bir Tawil, and the high seas (which are viewed as a global commons for exploitation) — deemed such for reasons “linked to their remoteness and utter inhospitality to humans.”

[171]    Halibut Island, or SISȻENEM, was recently returned to W̱SÁNEĆ with similar conditions attached. See W̱SÁNEĆ Leadership Council, “TLC To Transfer SISȻENEM (Halibut Island) to W̱SÁNEĆ Leadership Council,” online: https://wsanec.com/tlc-to-transfer-sis%C8%BCenem-halibut-island-to-w%CC%B1sanec-leadership-council/.