The following essay is the fifth in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers (see first essay / second essay / third essay / fourth essay). The purpose of this series is to engage in a dialogue assessing the merits and value of such recognition, as well as possible implications. This essay is written by Deborah Curran, Associate Professor, Faculty of Law and School of Environmental Studies and Acting Executive Director, Environmental Law Centre, at the University of Victoria in British Columbia, Canada. She can be reached at dlc [at] uvic.ca.
In Canada, the country with 20% of the world’s freshwater, our colonial legal history and the current expression of both colonial and Indigenous laws make for a unique context that does not necessary lend itself to the application of independent legal status or personhood for natural features such as rivers and mountains. While amendments to colonial law could grant legal status to rivers, many Indigenous legal orders place Indigenous peoples in a stewardship or caretaking relationship with water that they view as fundamental to their laws and culture. Devolving authority to an independent representative or tribunal and separating Indigenous people from direct responsibility for their environment is viewed as harmful to both people and ecosystem. Indigenous communities are responsible for maintaining relationships as part of their legal and cultural duties. Creating a third-party structure, even with representation, may not adequately adhere to Indigenous law. In addition, once communities agree to devolve decision-making authority to a third-party representative of a river, there is always the danger that the Crown – federal and provincial governments – may take the position that Indigenous communities then have less say in proposed development and impacts on the river. How independent structures representing a river could limit or change evolving Aboriginal rights and title is a significant risk for Indigenous communities.
There is considerable energy going into revitalizing and expressing Indigenous laws in Canada, including entering into government-to-government agreements that amend colonial law. These acts of Indigenous law could result in protections for the natural environment and specific features such as rivers that are similar to those promised by granting independent legal status to rivers and the natural environment. At least in the medium-term, the focus in Canada is on revitalizing Indigenous laws to be an effective articulation of Indigenous authority and counterpoint to colonial environmental governance.
Environmental Protection and Aboriginal Rights and Title in Context
There is no right to a healthy environment in Canada under current state or colonial law. The environment, except for fish, is largely the responsibility of provincial and territorial governments who have created a patchwork of different laws regulating the extraction of natural resources, parks, and pollution. All water law in Canada focuses on permitting the extraction of water rather than planning for watershed health, and none acknowledge Aboriginal rights to water as part of the water balance in a region.
Since 1982, the federal Constitution Act affirms and acknowledges Aboriginal and treaty rights. Colonial courts have interpreted the scope of these rights to include the right to harvest for food, social and ceremonial purposes and carry out cultural practices in one’s historic territory. Beyond this bare right to harvest for a moderate livelihood and undertake activities that are “distinctive to the culture” of an Indigenous community, most court cases exploring Aboriginal rights focus on the Crown’s requirement to consult and accommodate First Nations when the provincial or federal governments make decisions about applications to use resources in the traditional territory of an Indigenous community. This duty is a procedural right and does not a guarantee a substantive outcome of a healthy environment, intact ecological relationships, or the ability to exercise one’s Indigenous laws.
Recently, however, First Nations and colonial courts have turned to Indigenous laws and Aboriginal rights, as well as their expression in government-to-government agreements, as legitimate limitations on the decision-making authority of the federal and provincial governments, and as a way to challenge the natural resource regimes, including for water, under colonial law.
Indigenous Law
As a multi-juridical society, there is a resurgence in the expression of Indigenous law in Canada, the foundation of which are the relationships and responsibilities between land, plants, animals, fish, marine ecosystems, and humans. Colonial law stands in contrast to Indigenous law, which encompasses the existing and evolving laws of each Indigenous society. Indigenous groups and communities in Canada continue to define and use their own laws. The land- and water-based origin of many Indigenous laws establish relationships and rules for protection, harvesting, cultivation, and trade of ecosystem elements. The origins of Indigenous laws flowing from ecosystem-based relationships also create the overarching governance processes through which entitlements to use, harvesting practices and sharing with adjacent communities are mediated.
The Tsleil-Waututh Nation conducted their own environmental assessment of the Trans Mountain pipeline expansion proposal using their Stewardship Policy derived from their Indigenous laws as the assessment framework. Tsleil-Waututh and Coast Salish Legal principles include the “sacred obligation to protect, defend, and steward the water, land, air, and resources of our territory…the responsibility to maintain and restore conditions in our territory that provide the environmental, cultural, spiritual, and economic foundation our nation requires to thrive”. The Stewardship Policy requires the Nation to evaluate the potential negative effects of proposed development, and if those effects do not exceed “Tsleil-Waututh legal limits”, to assess the benefits of the project for the community. As part of the assessment process, the Tsleil-Waututh First Nation revealed their stewardship obligations in their territory, based on their Indigenous laws and operationalized through their Burrard Inlet Action Plan, which includes regulatory action and habitat restoration by the Tsleil-Waututh.
The Tsleil-Waututh Nation’s assessment of the trans mountain pipeline (image reproduced with permission of Sacred Trust Initiative Tsleil-Waututh Nation)
Likewise, the Stk’emlúpsemc te Secwépemc Nation also undertook a community assessment of the proposed Ajax mine near Kamloops, British Columbia. Concluding that the Nation would not give its free, prior and informed consent for the project, the process included the Nation exercising its own Indigenous environmental governance to strike an assessment panel. The decision document underscores the importance of the ethics of stewardship embedded in socio-ecological relationships and expressed in Secwepemc lands and resource laws.
Other examples of expressions of Indigenous laws that challenge colonial administrative and legal processes abound in Canada, particularly on the west coast in British Columbia. Many of these expressions involve water as the basis of life. The Nadleh Wut’en and Stellat’en First Nations, as well as the Okanagan Nation Alliance, have made declarations of water law and are developing programs and policies flowing from these declarations. A central tenet of these expressions of law is the relationship of these communities to their lands and waters, and their ongoing responsibilities to take care of the ecosystem’s health.
Cautionary Approach to Legal Personhood
Currently in Canada, there is a movement to revitalize Indigenous laws and to enable those laws to express jurisdiction, sovereignty and interact with colonial law as one of the long-term results of reconciliation. Permitting the full expression of Indigenous laws may mean granting legal status to some rivers as part of government-to-government agreements, however, such an approach would follow first the concrete expression of Indigenous legal orders and long-term discussions about the appropriate ways to enliven those orders in conversation with colonial law.
A legitimate concern is that colonial legal processes or governments could weaken the intent of legal status for rivers vis a vis evolving claims for Aboriginal rights and title. While Indigenous communities would sign-on to such an approach as a way to secure better protection for the natural environment, and thus the underlying conditions of their Aboriginal rights such as fishing, hunting, gathering, and ceremonial practices, the Crown may argue that First Nations’ interest in applications for development or extraction of natural resources is diminished because the river had independent representation. Indigenous influence on potential projects could be limited to direct impacts to Indigenous people and not the environmental health of the river as an ancestor, spiritual entity or condition of life.
There may be opportunities in the medium- to long-term where expression of Indigenous laws include government-to-government agreements that point to legal personhood, as was the case in New Zealand. Several productive government-to-government agreements exist in Canada. For example, the Haida Nation entered into the Kunst’aa guu – Kunst’aayaa Reconciliation Protocol with the Province of British Columbia to create the Haida Gwaii Management Council. The Council makes decisions about forestry and heritage sites, and is composed equally of appointees of the provincial government and Haida Nation, with decisions made by consensus.
Another example is the Great Bear Rainforest Agreements between the seven First Nations in the Central Coast of British Columbia and the provincial government, which agreed to return 80 percent of the landscape to old growth forest over a 250-year timeframe and to support a conservation economy. While the legal mechanisms in colonial law for realizing these agreement are complex, the provincial government operationalized the forestry commitments through the Great Bear Rainforest (Forest Management) Act, which establishes the annual allowable cut for the area as agreed to pursuant to ecosystem-based management. Much of the landscape is designated in a new type of park called conservancies that permit the exercise of Aboriginal rights.
Finally, granting independent legal status and a voice to a river might make sense in unique areas where there are many overlapping claims and legal structures affecting a body of water, and where decision-making authority and priorities require clarity. An example is the Peace Athabasca Delta, a UNESCO World Heritage site and part of the larger Peace-Athabasca-MacKenzie River system. Flowing through three provinces, two territories, and dozens of treaty and non-treaty Indigenous traditional territories, it is affected by some of the largest industrial tar sands and hydroelectric projects in Canada. While colonial legal processes have failed to provide effective governance for one of the world’s most important rivers, perhaps an independent governance body for the River itself could force reparations.
Further Reading
Indigenous Law Research Unit. Indigenous Law Videos
Val Napoleon. What is Indigenous Law?