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First Nations Interests
It is necessary to the understanding of both the history and the legal principles of aboriginal rights for First Nations, government and people to work together in the protection of Nature.
Aboriginal Title
Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 SCR 511
First Nations have a claim to the unceded lands in the province of British Columbia. Government holds legal title to this land. The Province took its interest in land subject to the interests of First Nations.
Government has a duty to consult when there is unceded territory, when the crown has knowledge of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it. There is a duty to consult and accommodate.
Honourable negotiation implies a duty to consult and conclude an honourable agreement. Underlying is the need to reconcile prior Aboriginal occupation with the reality of Crown sovereignty. The Crown must adjust its conduct to reflect unresolved rights and can not run roughshod over Aboriginal interests. The Crown must continue to manage the resource pending claims resolution. Unilateral exploitation of resources may deprive Aboriginal claimants of some or all benefits of a resource (not honourable).
The duty to consult varies from a mere duty to notify, to a duty to listen and obtain consent. The duty varies from cases where claim is weak to where the case is strong. It varies depending if issues are serious. Every case must be approached individually.
Reconciliation is not a final legal remedy, it is a process flowing from rights (Constitution Act 35(1))
One cannot meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right and its modern scope.
Aboriginal claimants must not frustrate the Crown’s reasonable good faith attempts or take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached. Mere hard bargaining will not offend an Aboriginal People’s right to be consulted.
Accommodation occurs at the stage when the Crown amends policies.
Balance and Compromise are inherent.
Third Parties are under no duty to consult or accommodate. This does not mean that they can never be liable, if they act negligently in circumstances where they owe Aboriginal peoples a duty of care or if they breach contract with Aboriginal peoples or deal with them dishonestly, they may be held legally liable.
History
The following planning information is extracted from a document titled We Rise Together produced by the Indigenous Circle of Experts.
In 2010, at the 10th meeting of the Conference of the Parties (COP 10) to the Convention on Biological Diversity (CBD) in Nagoya, Aichi Prefecture, Japan, countries around the world adopted a Strategic Plan for Biodiversity. The plan included 20 global biodiversity targets, which together became known as the Aichi Targets.
In response, in 2015, Canada adopted a suite of national targets known as the ‘2020 Biodiversity Goals and Targets for Canada.’ These four goals and 19 targets cover issues ranging from species at risk to sustainable forestry to connecting Canadians to nature. Canada Target 1 states:
By 2020, at least 17% of terrestrial areas and inland water, and 10% of coastal and marine areas, are conserved through networks of protected areas and other effective area-based conservation measures.
COP15
November 18, 2022, the international targets were updated at COP15.
Perhaps the most insidious impact of historical protected areas is the disconnection they fostered between Indigenous Peoples and their territories.
- Many parks and protected areas in Canada were created without the consent of Indigenous Peoples during periods in Canada’s history when it was common for people to be ‘cleared from the land’ to make way for tourism, recreation and related development, or to maintain the appearance of Eurocentric notions of pristine wilderness devoid of human influence.
- Practices like these failed to recognize the intimate relationships that Indigenous Peoples have maintained with lands and resources in their territories for millennia as users and responsible stewards.
- In the most egregious cases, Indigenous Peoples were removed from their homes to establish national, provincial or territorial parks.
- Parks Canada makes its own regulations and laws without letting the people of the land have input.
- The point is: in the not-too-distant past, protected areas took away not only the rights of Indigenous Peoples, but their ability to exercise their responsibilities related to the land.
Understanding Reconciliation
Reconciliation can mean different things to different people. At Indigenous Circle of Experts (ICE) gatherings, it was acknowledged as ‘a very powerful word and highly charged, evoking a lot of emotions.’ As such, it is up to each Nation to define reconciliation for itself. In this manner, reconciliation means identifying the appropriate healing process for restoring relationships: first, between Crown and Indigenous Peoples, recognizing what has not worked in the past so it is corrected moving forward in the spirit of peace and friendship; and second, between all people (Indigenous and non-Indigenous) and the lands.
Ethical Space
‘Ethical space‘ … respects the integrity of all knowledge systems. This ethical space provides a venue for collaboration and advice, sharing and cross-validation (where one side validates the other’s decisions). Its methodology applies Indigenous conservation and protection measures going forward.
- The focus of ethical space is on creating a place for knowledge systems to interact with mutual respect, kindness, generosity and other basic values and principles. All knowledge systems are equal; no single system has more weight or legitimacy than another.
- One system does not need the other to ‘corroborate’ it, to achieve internal validity. For example, the written system does not always need archaeological evidence to provide sound ‘proof’ of an Indigenous practice or story.
- While agreeing to formally enter ethical space may be straightforward for most parties, actually being within that space together requires flexibility. Parties may frequently need to adjust to change, surprise, and other factors that cannot be envisioned at the initial stage.
- While engaged in ethical space, no party can claim to have achieved (or even entered into) processes of consultation or accommodation as defined under existing or previous provincial or federal legislation or policies. That is not the purpose of ethical space.
The Need for a Paradigm Shift in Conservation
The path toward the conservation of lands and waters must be thoughtfully and respectfully navigated. Science, legislation and policies continue to play the guiding role. However, ICE suggests that Indigenous expertise become a part of this guidance, in both substance and method. This will require:
- dedicating time and resources to further exploring Indigenous-led conservation and engagement with Indigenous governments regarding Indigenous Protected and Conserved Areas (IPCAs),
- supporting innovative funding models,
- identifying new partners, allies and champions, and
- creating the kinds of resources that would be useful to Indigenous governments on their path to IPCAs, including, for example, a toolkit.
Defining IPCAs
Indigenous Protected and Conserved Areas (ICPAs) are lands and waters where Indigenous governments have the primary role in protecting and conserving ecosystems through Indigenous laws, governance and knowledge systems. Culture and language are the heart and soul of an IPCA.
IPCAs can vary in terms of their governance and management objectives, they generally share these essential elements:
- They are Indigenous led.
- They represent a long-term commitment to conservation
- They elevate Indigenous rights and responsibilities. In the Canadian context, IPCAs represent:
- a modern application of traditional values, Indigenous laws and Indigenous knowledge systems,
- an exercise in cultural continuity on the land and waters,
- a foundation for local Indigenous economies
- opportunities to reconnect to the land and heal both the land and Indigenous Peoples,
- an acknowledgement of international law, such as Canada’s Treaties, U.N. Declaration on the Rights of Indigenous Peoples, the Convention on Biological Diversity and other relevant instruments and commitments,
- an opportunity for true reconciliation to take place between Indigenous and settler societies, and between broader Canadian society and the land and waters, including relationships in pre-existing parks and protected areas, and
- an innovative expression of Section 35 (Constitution Act 1982).
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. While IPCAs embody a common goal for conserving the ecological and cultural values important to Indigenous Peoples, the priorities and objectives of individual IPCAs may vary greatly. As such, they may take various shapes and forms based on the objectives for the area. But they share some commonalities. IPCAs should:
- promote respect for Indigenous knowledge systems,
- respect protocols and ceremony,
- support the revitalization of Indigenous languages,
- seed conservation economies if possible,
- conserve cultural keystone species and protect food security, and
- adopt integrated, holistic approaches to governance and planning.
Beyond having rights over lands and waters, responsibility implies stewardship and caretaking—making thoughtful, well considered choices that factor in the impact of decisions made today on future generations’ ability to enjoy the bounty of the land.
Reconciliation
… reconciliation in the context of developing IPCAs must be grounded in respect, including:
- accepting that Indigenous People have sacred connections to their territories that are reflected in their protocols and ceremonies and often embodied in their languages,
- accepting the existence and validity of Indigenous laws and knowledge systems along with western science,
- accepting the diversity of the governance systems Indigenous Peoples have in different regions, and truly understanding and accepting the distinctions between Inuit, Metis Nation and First Nations governments, and
- respecting the spirit and intent of historic Treaties and modern land claims agreements, where they exist, and Canada’s international commitments, such as UNDRIP.
IPCAs Elevate Indigenous Rights & Responsibilities.
Indigenous Peoples have long-standing physical and spiritual relationships with the lands and waters within their respective territories, and with the natural cycles that determine their use. These relationships have always included the right to benefit from the bounty of the natural world and the reciprocal responsibility to care for and respect the land and water, consistent with natural and Indigenous law, for future generations. In IPCAs, Indigenous Peoples’ continued relationship with the land and water must be assured by acknowledging the authority that Indigenous governments have to work with their people on how to use the land and water while achieving conservation and cultural objectives.
In the Canadian context, IPCAs represent:
- a modern application of traditional values, Indigenous laws and Indigenous knowledge systems,
- an exercise in cultural continuity on the land and waters,
- a foundation for local Indigenous economies,
- opportunities to reconnect to the land and heal both the land and Indigenous Peoples, …
- an opportunity for true reconciliation to take place between Indigenous and settler societies, and between broader Canadian society and the land and waters, including relationships in pre-existing parks and protected areas…
Characteristics of IPCAs
- Indigenous governments are responsible for setting the conservation standards for IPCAs.
- Indigenous knowledge systems and western science should be valued and respected equally, should inform and complement each other, and should be combined into a seamless approach.
- IPCAs should respect protocols and ceremony.
- IPCAs should support the revitalization of indigenous languages.
- IPCAs can seed conservation economies
A conservation economy is not meant to employ thousands or generate extreme financial wealth. It is meant to create long-term sustainable employment potential for local and regional residents by maximizing existing skills and knowledge, providing new skills and adequately supporting families now and into the future.
A conservation economy has many important features. The most obvious among them comes from the name itself: ‘conservation’ refers to preserving and restoring the environment in its natural state, while ‘economy’ focuses on renewable and non-extractive economic activity, such as tourism. There is also the connection to Indigenous cultures, which are based on sustainable use and strong spiritual connection with the land. As a result, a ‘conservation economy’ can provide significant opportunities to benefit from living on the land and water while further developing the growing market for sustainable cultural tourism.
- IPCAs should conserve cultural keystone species and protect food security.
- IPCAs should adopt integrated, holistic approaches to governance and planning.
- IPCAs may employ a zoning approach and include:
- areas where uses and access are restricted (e.g., certain sacred sites)
- areas where Indigenous hunting and gathering are allowed (e.g., subsistence food harvesting)
- shared-use areas where non-Indigenous use is allowed (e.g., through permitting) and
- buffer areas around sensitive zones where light-touch development—such as micro-hydro, artisanal mining, or selective logging—are allowed.
Opportunities & Challenges Of IPCAs
IPCAs have the potential to support conservation efforts and goals on various levels for Indigenous Peoples and their governments as well as Crown governments and Canadians overall. ICE has identified four key visions—which can also be thought of as both opportunities and challenges of IPCAs. These are related to healing spaces, beacons of teachings, restoration areas and reconciliation regions.
Spaces for Cultural Regeneration Through Healing
IPCAs can be established to offer spaces for cultural regeneration that may lead to personal or community healing. This could be achieved by:
- creating cultural immersion programs to connect Indigenous and non-Indigenous Peoples to the lands, and
- creating opportunities to practice traditional lifestyles, bringing Elders and youth onto the land for cultural connection and mutual learning.
