By: Leslie Anne St. Amour
Leslie Anne St. Amour (she/her) was born and raised in eastern Ontario, primarily the Ottawa Valley and Kingston areas. She is a member of the Bonnechere Algonquin First Nation and has mixed Algonquin and settler heritage. Leslie Anne attended McGill University where she received a Bachelors in political science with a minor in Indigenous studies in 2016, she was member of the 2016-2017 Oceanpath Fellowship cohort run by St. Francis Xavier University and later attended the University of Toronto Faculty of Law. Leslie Anne articled with the Ontario Ministry of Environment, Conservation, and Parks and now works as an associate at Durant Barristers. Leslie Anne sits on the Board of Directors of the Algonquin Wildlife Research Station, and Aboriginal Legal Services. Leslie Anne is also co-host of the podcast Rebalancing Act which she created with a law school colleague.
PUBLISHED IN LAND BACK | (2021) 1:2 ROOTED
Note, this article is only available online.
It is well-known within Indigenous communities that colonial ideas of conservation are often in conflict with Aboriginal rights. There is a long history of forcibly removing Indigenous peoples from their territories for conservation purposes, which laid the groundwork for Canada’s system of provincial parks, including Ipperwash Park, Algonquin Park, and Banff Park[1] In the case of Ipperwash, the expropriation of land from the Kettle and Stony Point First Nation was met with resistance, leading to the death of Dudley George, an Ojibwa man, at the hands of armed police.
Under section 35 of the Constitution Act, 1982, conservation is one of the potential grounds to justify the infringement of Aboriginal title and rights. In this context, conservation refers to the protection of species, habitat and wildlife populations. Yet the presumed correspondence between state control and the health of our ecosystems needs to be scrutinized in light of the colonial mindset that underlies state-led conservation efforts. The Land Back movement provides a crucial opportunity to dismantle colonial assumptions about conservation and return authority to Indigenous communities over their own territory, to the benefit of all.
A variety of legal regimes support Canada’s conservation efforts: species at risk legislation, water management, land use planning, and hunting and fisheries legislation. At the same time as they purport to ensure protection of biodiversity and the natural environment, these regulatory schemes have also undermined the possibility of deepened engagement with Indigenous peoples and communities in developing long-term conservation strategies. When Indigenous nations have the authority to govern over conservation efforts, whether through partnerships, shared governance or other arrangements, it allows not only for better outcomes, but also fosters reconciliation between Indigenous and Canadian legal orders. Moreover, research on the effectiveness of conservation has demonstrated that conservation efforts that draw on Indigenous knowledges and expertise are often more effective than conservation efforts without Indigenous involvement.[2] In view of the accepted correlation between Indigenous stewardship and conservation, this paper proposes that there is no principled basis for conservation to remain a valid legislative intent that can justify the infringement of Aboriginal rights. This problem could be resolved by preventing the Crown from relying on conservation as a justification for infringement where there is evidence that inclusion of the Indigenous parties would result in more effective conservations measures.
Indigenous Law
The Supreme Court of Canada in Van der Peet described the purpose of section 35 as the reconciliation of the pre-existence of Aboriginal societies, with their own practices, traditions and cultures, with that of asserted Crown sovereignty.[3] Inherent in the recognition of distinct nations is an understanding that distinct Indigenous legal orders exist, because a nation cannot exist without a legal order governing its people. Since Indigenous laws are not found in books of statutes the same way that Canadian law is, they can be more difficult to identify for those who are not members of Indigenous nations. However, they are just as present on Turtle Island as Canadian law. Locating Indigenous law must start with Indigenous epistemologies. Indigenous languages allow speakers to relate to the world in ways that exceed the limits of the English language. This relationality is also inherent in Indigenous stories and oral traditions. These stories and relationships are among the places Indigenous laws can be found.
One of the central relationships in most, if not all, Indigenous nations’ laws on Turtle Island is with the land itself, and the animals who share the land. Turtle Island, the name for what is now known as North America, demonstrates the connections between Indigenous people, laws, and the land. Turtle Island is a reference to a creation story, shared by many nations in North America, in which the earth was formed on the back of a turtle. In this story, other animals help to shape the earth upon the turtle’s back and these actions form the basis of Indigenous relationships with animals and the corresponding laws that govern these relationships. This story demonstrates the crucial role that wildlife and the environment play in Indigenous worldviews and laws, which are inherently linked to the conservation of ecosystems. This process of using stories to draw out Indigenous law is one that Val Napoleon and Hadley Friedland have considered in great depth.[4]
Evidence and Strategies for Indigenous Conservation
There are many examples of Indigenous-led conservation efforts which have provided significant conservation benefits.[5] Biodiversity is often equal or greater in state-recognized Indigenous lands than state-managed parks in Canada.[6] There is growing evidence that Indigenous-managed lands are at least as effective as state-managed protected areas in resisting deforestation and ecological degradation.[7] For example, Six Nations of the Grand River Territory contains the largest tract of remaining Carolinian Forest in Canada, one of the most endangered ecosystems in Canada.[8] Six Nations has approximately 50% of the land forested, compared to an average of 24% across the rest of the Southern Ontario region.[9] According to one recent comparative study, Indigenous-managed lands in Australia, Brazil and Canada host greater biodiversity than state-managed protected areas or randomly selected non-protected areas.[10] In British Columbia, a government-to-government partnership between Saulteau First Nation and West Moberly First Nation has led to the development of the world’s most effective recovery program for endangered caribou by engaging an adaptive management framework to address two limiting factors of the population. In this context, limiting factors refer to the conditions which constrain the population size.[11] These examples demonstrate the effectiveness of Indigenous involvement in conservation, especially in comparison to state-led conservation. They also demonstrate the need for Indigenous involvement, because Indigenous involvement provides the most effective opportunities for conservation and species protection and recovery.[12] The underlying rationale for both geographically concentrated efforts, such as caribou protection, and large-scale efforts, such as the forest cover of Six Nations, is that Indigenous governance and decision-making grounded in Indigenous sovereignty are premised on a fundamental respect for our ecosystems and animals.
Many of the Indigenous-led conservation efforts described above do not operate as systemic efforts under the larger Canadian conservation regime but rather as pockets of Indigenous-governed conservation spaces carved out from the Canadian legal system. An integration of Indigenous-led conservation efforts with the larger Canadian conservation regime has the potential to increase the efficacy of conservation efforts in Canada on a larger scale. A developing area of Indigenous-led conservation is the use of Community Conserved Areas (CCAs). CCAs are being implemented across the world. They have existed in Australia for several years and are becoming more common in Canada. CCAs operate through different legal mechanisms in different jurisdictions, but their purpose is the same: to designate an area of land for conservation purposes, managed or co-managed by a local community.[13] CCAs are often managed by a local Indigenous community or nation who are the traditional caretakers of the land and they provide an opportunity for management under the Indigenous community’s or nation’s own laws.
Indigenous Protected and Conserved Areas (IPCAs) are the Canadian equivalent of these Indigenous-led conservation areas and are a more recent development in Canada as compared to other states. Current examples of IPCAs in Canada include: the Edéhzhíe Protected Area in the Northwest Territories,[14] the Tallurutiup Imanga National Marine Conservation Area in Nunavut,[15] and Thaidene Nëné National Park Reserve in the Northwest Territories.[16]These different projects all include a land base which is managed in part by an Indigenous community or nation for conservation purposes. The first IPCA in Canada was the Edéhzhíe Protected Area, established in 2018. This is not to say that there has been no management or co-management by Indigenous communities in respect to land previously; however, this was the first formal effort on the part of the Canadian government to create and implement IPCAs in Canada. Since IPCAs are a relatively recent development, evidence of their effectiveness is limited. However, considering the proven efficacy of Indigenous-led conservation for other areas of land managed by Indigenous communities, they hold great potential for the future of conservation in Canada.
Conservation as Justification
While it is important to emphasize that Aboriginal and treaty rights do not solely relate to environmental impacts, as noted in Clyde River, there is still an important relationship between environmental and conservation impacts and Aboriginal and treaty rights.[17] This relationship is reflected in the relationships of Indigenous people to their traditional territory.
Canadian courts have long relied upon Canadian-led conservation legislation as a valid ground for the infringement of section 35 Aboriginal rights, but without considering whether these conservation efforts are effective given the strong relationship Indigenous peoples have with their traditional territory and this role in conservation measures.[18] However, the priority the Court has traditionally afforded to conservation over Aboriginal rights is largely based on jurisprudence that not only pre-dates section 35, but assumes that the Crown’s conservation efforts are efficient, and worth the infringement of the right.
In R v Sparrow, the Court determined that section 35 Aboriginal rights can be limited by government action backed by a valid legislative objective.[19] The Supreme Court applied section 35 for the first time to find that although fisheries regulations passed for the purpose of conservation infringed upon the right of the Musqueam Band in British Columbia to fish, the infringement was a justifiable one. The Court described conservation as an uncontroversial policy aim:
The justification of conservation and resource management, on the other hand, is surely uncontroversial. … Further, the conservation and management of our resources is consistent with aboriginal beliefs and practices, and, indeed, with the enhancement of aboriginal rights.[20]
R v Sparrow, [1990] 1 SCR 1075, 70 DLR (4th) 385 at paras 72-74.
In legitimizing conservation as an “uncontroversial” legislative objective, however, the Court relied on decisions that predate section 35.[21] Considering the growing body of evidence that conservation is more effective with Indigenous participation, it is hard to imagine a circumstance in which an incursion on Aboriginal rights in pursuit of Crown-led conservation efforts would be justifiable, necessary, minimally impairing to the right, or proportional, as required by the fiduciary duty owed to Indigenous nations.[22] Since Indigenous-led conservation is more effective, infringing an Aboriginal right in order to meet a conservation goal is likely to result in worse outcomes than if Indigenous peoples were involved in the conservation efforts.
This tension could be resolved by limiting the ability of the Crown to rely on conservation as a justification for infringement where there is evidence that inclusion of the Indigenous parties would result in more effective conservations measures. Allowing less effective conservation methods to be used to justify infringement would be contrary to Canada’s fiduciary duty to Indigenous nations. It would allow the Crown to engage in conservation efforts less likely to actually protect the natural resources and unnecessarily limit Indigenous rightsholders. Alternatively, the Crown should be encouraged to engage Indigenous rightsholders in conservation efforts to prevent the need for rights infringements and where necessary, be able to truly justify the infringement.
Conclusion
For effective conservation practices to take place, conservation must not be used to justify infringement of section 35 rights. Ignoring the role of Indigenous peoples in conservation would be detrimental to the goals of conservation and reconciliation. For this reason, the use of conservation as a justification for infringing Aboriginal rights should not stand as Canada moves towards a future with Indigenous peoples as partners in conservation efforts.
[1] See Tabitha Marshall, “Ipperwash Crisis” (6 February 2019), online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/ipperwash-crisis>; Chief Kirby Whiteduck, “Our Majestic Forests: An Aboriginal View of Algonquin Park” in David Euler, ed, Algonquin Park: the Human Impact (Espanola: OJ Graphics Inc, 2009) 36 at 49, online (pdf): <http://www.algonquin-eco-watch.com/Human%20Impact/Algonquin_Park_the_human_impact_web.pdf>; Theodore (Ted) Binnema & Melanie Niemi, “’Let the Line Be Drawn Now’: Wilderness, Conservation, and the Exclusion of Aboriginal People from Banff National Park in Canada” (20016) 11:4 Environmental History 724.
[2] See Kyle A Artelle et al, “Supporting Resurgent Indigenous-led Governance: A Nascent Mechanism for Just and Effective Conservation” (2019) 240 Biological Conservation 1 at 4.
[3] See R v Van der Peet, [1996] 2 SCR 507 at para 31, 137 DLR (4th) 289.
[4] See Val Napoleon & Hadley Friedland, “An Inside Job: Engaging with Indigenous Legal Traditions through Stories” (2016) 61:4 McGill LJ 725.
[5] See Kyle A. Artelle et al, “Supporting Resurgent Indigenous-led Governance: A Nascent Mechanism for Just and Effective Conservation” (2019) 240 Biological Conservation 1 at 4.
[6] See ibid at 5.
[7] See ibid at 5–6.
[8] See Carolinian Canada Coalition, “Six Nations Forest” (2019), online: Carolinian Canada Coalition <https://caroliniancanada.ca/legacy/CarolinianSites_SixNationsForest.htm>.
[9] See ibid at 6.
[10] See Richard Schuster et al, “Vertebrate Biodiversity on Indigenous-managed Lands in Australia, Brazil, and Canada Equals that in Protected Areas” (2019) 101 Environmental Science & Policy 1 at 3–4.
[11] See Hannah Askew & Bud Napoleon, “The Caribou Are Our Four-legged Cousins” (27 June 2019) online: Centre for International Governance Innovation <https://www.cigionline.org/articles/caribou-are-our-four-legged-cousins>; Robert Serrouya et al, “Saving Endangered Species Using Adaptive Management” (2019) 116:13 Proceedings of the National Academy of Sciences of the USA 6181 at 6182.
[12] See also Julie Maldonado et al, “Engagement with indigenous peoples and honoring traditional knowledge systems” (2016) 135 Climatic Change 111, https://doi.org/10.1007/s10584-015-1535-7; Eleanor J. Sterling et al, “Biocultural Approaches to Well-being and Sustainability Indicators Across Scales” (2017) 1 Nat Ecol Evol 1798, https://doi.org/10.1038/s41559-017-0349-6; Julia E. Fa et al, “Indigenous Peoples’ Lands and Forest Conservation” (2020) 18:3 Front Ecol Environ 135, doi:10.1002/fee.2148; Stephen T. Garnett et al, “A Spatial Overview of the Global Importance of Indigenous Lands for Conservation” (2018) 1 Nat Sustain 369, https://doi.org/10.1038/s41893-018-0100-6.
[13] See Anish Kothari, “Community Conserved Areas: Towards Ecological and Livelihood Security” (2006) 16:1 PARKS 3 at 3.
[14] See “First new Indigenous protected area in Canada: Edéhzhíe Protected Area” (Oct 11, 2018) online: Environment and Climate Change Canada <https://www.canada.ca/en/environment-climate-change/news/2018/10/first-new-indigenous-protected-area-in-canada-edehzhie-protected-area.html>.
[15] See “Tallurutiup Imanga National Marine Conservation Area” (2019) online: Parks Canada <https://www.pc.gc.ca/en/amnc-nmca/cnamnc-cnnmca/tallurutiup-imanga>.
[16] See Emily Blake, “Thaidene Nëné National Park Reserve Becomes N.W.T.’s Newest Protected Area” (20 August 2019) online: CBC North <https://www.cbc.ca/news/canada/north/thaidene-nene-finalized-1.5253685>.
[17] Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 45.
[18] See e.g. R v Aleck, 2008 BCSC 1096; R v Beer, 2011 MBPC 82; R v Desjardin, 2018 SKPC 52.
[19] See R v Sparrow, [1990] 1 SCR 1075, 70 DLR (4th) 385 (in addition to having a valid legislative objective, the infringement must be minimally impairing and the Aboriginal group whose rights are affected must be consulted, compensated, or accommodated at paras 71–88).
[20] Ibid at paras 72–74.
[21] See ibid at paras 73, 77, citing to Kruger v The Queen, [1978] 1 SCR 104, 75 DLR (3d) 434 and Jack v The Queen, [1980] 1 SCR 294 at 313, 100 DLR (3d) 193.
[22] See Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at paras 77–86.
Indigenous Law Association at McGill 