From December 7-19, the 15th meeting of the Conference of Parties (COP15) of the UN Convention on Biological Diversity was held in Montreal. Among the discussions abuzz was how Canada, and the over 100 other nations who formally supported the call to protect 30% of the world’s lands and oceans by 2030 in order to prevent catastrophic biodiversity loss, would make this happen.
Canada has not only supported this call, but has pledged to meet this target in the G7 Nature Compact. Having the second largest land mass in the world, Canada has a large role to play – and has responded by committing to protecting 25% of its lands and oceans by 2025, and 30% by 2030. So far, Canada has protected only 13.9% of its oceans and 13.4% of its land, missing its target of protecting 17% of terrestrial areas and inland water by 2020. We still have a long way to go.
A curious thing happens when you look at a map of biological diversity hotspots and linguistic diversity hotpots around the world. It quickly becomes evident that a pattern of correlation exists, where biological diversity and cultural diversity seem to exist simultaneously. This is no coincidence.
For millenia, Indigenous peoples have cultivated their territories in accordance with their laws in such a way as to create flourishing habitats that are as unique as their caretakers. The people, in return, had abundant homes that shaped their lives, laws and languages. As Indigenous legal orders continue to exist despite colonial attempts at their destruction, Indigenous peoples around the world protect 80% of the world’s remaining biological diversity, while making up only about 6% of the world’s population.
All humans both shape and are shaped by the beyond-human world around them. Today, the dwindling abundance of the lands and waters that Canada asserts jurisdiction over is causing newcomers to these territories (read: non-Indigenous people) to reconsider the behaviour that has led us to the ecological crisis we are facing, including the disruption of Indigenous governance.
Canada cannot achieve its land and ocean protection targets without working with Indigenous peoples. Not only does Canada have a lot to learn from Indigenous law on generative resource management – Crown governments also have legal obligations that require such collaboration. Acting without Indigenous involvement would mean a failure to meet Canada’s obligations under treaties with Indigenous peoples, the Canadian Constitution, the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), and the G7 Nature Compact itself, which requires that Indigenous peoples are full partners in the implementation of the protection targets.
It is also no coincidence that Indigenous peoples across the country – and the world – are already declaring portions of their territories as protected areas under their own laws and inherent jurisdiction. The term “Indigenous Protected and Conserved Area” (IPCA), which came from an Indigenous Circle of Experts report, reflects the resurgence of legal jurisdiction and governance that Indigenous people have upheld for thousands of years in caring for and nurturing the lands and waters of their territories. It is used to describe Indigenous-led, long-term conservation measures that elevate Indigenous rights and responsibilities. IPCAs are about much more than just conserving biodiversity. They are an emerging crucial pathway that, if embraced, can meet many of Canada’s legal obligations to Indigenous peoples.
It was with much anticipation that first BC and then Canada legislatively committed to take all measures necessary to align their laws with UN Declaration. IPCAs have an instrumental role to play in meeting the standards set out in the UN Declaration:
This is quite plain to see when it comes to some clauses in the Declaration, such as:
- Article 26, which describes the right Indigenous peoples have to their territories generally;
- Article 29, which describes the right in relation to protection and conservation of the environment;
- Article 25, which lays out the right in relation to spiritual relationships to traditional territory and the related obligations to future generations; and
- Article 32, which describes the right to development and use of traditional territories, including the requirement for free, prior and informed consent (FPIC) when it comes to proposed developments, especially resource development.
Several of these articles listed also include obligations for state governments to ensure these rights are met in a way that supports and promotes Indigenous visions for their lands and waters. Many other provisions in the UN Declaration are equally relevant to IPCAs, though it may not be so obvious.
Article 24 of the UN Declaration describes the rights Indigenous peoples have to their traditional medicines and to maintain their health practices, including the conservation of vital medicinal plants, animals and minerals. It also says that Indigenous peoples have rights to enjoyment of the highest attainable standard of physical and mental health, and enumerates the obligation that states have in ensuring the full realization of this right.
In some cases, the conservation of specific medicinal plants, animals and minerals may only be possible through Indigenous legal processes for governance of their lands and waters. For example, the sməlqmíx, the syilx people of the Similkameen valley, practice ceremonial burning that allows for particular foods and medicines to grow. Without this practice, these important species are not accessible. The sməlqmíx are now implementing their nʔaysnúlaʔxʷ (Ashnola) sməlqmíx protected area, which centres caretaking practices under their own legal protocols in the watershed, and therefore contributes to the physical and mental health of sməlqmíx people through increased access to their foods, medicines, ceremony and ancestral knowledge. In such cases, it may be argued that it is Canada and BC’s legal obligation under Article 24 (2) to support the sməlqmíx protected area’s full implementation, as failing to do so would deny the sməlqmíx their rights to their highest attainable standards of health.
In Article 31, Indigenous peoples are guaranteed the right to their cultural heritage, traditional knowledge, and traditional cultural expressions, including the manifestations of their sciences, technologies and cultures. Indigenous knowledges are intrinsically tied to place and many traditional cultural expressions may be tied specifically to place.
IPCAs are a clear pathway for Indigenous peoples to practice their cultures because they are so deeply interwoven with their territories. Resurgence of Indigenous governance is especially imperative to protect and develop cultural heritage and knowledge in relation to oral traditions, fauna and flora, arts, and other cultural expressions that are intimately connected to land and water – particularly when that land and water is at risk.
The Kitasoo Xai’xais have exemplified this with their recent declaration of Gitdisdzu Lugyeks (Kitasu Bay) as a Marine Protected Area. The new declaration comes with a draft management plan for the bay that is rooted in Kitasoo Xai’xais law and traditional knowledge, including the correct protocol for herring harvest within Gitdisdzu Lugyeks. Through the protected area, the Kitasoo Xai’xias are able to maintain, protect and develop their cultural expressions and science in relation to the flora and fauna of their territorial waters. Now, it is up to Canada and BC to implement their respective obligations under Article 31 (2) to work “in conjunction” with the Kitasoo Xai’xais to “take effective measures to recognize and protect” their rights in this regard.
As mentioned above, language and place are inextricably related. Article 13 of the UN Declaration guarantees the right of Indigenous peoples to their languages, including their oral traditions, histories, literature and traditional names for persons, places and communities. Languages develop and exist in relation to place, and the ability to exercise traditional practices, protocols and laws; harvest and consume cultural foods; and be present on traditional territories are some of the fundamental elements to language revitalization. This is particularly salient when it comes to primarily oral language traditions, where fluency in the language requires more than passive learning from books.
IPCAs are a fruitful method of reinvigorating relationships to traditional territory that are essential to language use and transmission. They often include resurfacing traditional place names and encourage inter-generational knowledge sharing. For instance, in the establishment agreement for the Edéhzhíe Dehcho Dene Protected Area – which was established in partnership with Canada and the Northwest Territories governments – the parties agreed to meaningfully include Dehcho Dene Zhatie, the language of the Dehcho First Nations, into decisions and management actions in Edéhzhíe. The agreement also provides that all meetings, publications and reports are provided with a Dehcho Dene Zhatie translation. In this case, governance of the IPCA is proving to be a space for manifestation of Dehcho rights in relation to language.
Currently, there are 47 Indigenous communities that have received funding from Canada to work on IPCA projects, and many more have declared IPCAs that have not been recognized by Canada. This suggests that Indigenous peoples perceive IPCAs as a preferred method to achieve some of their rights, and Canada is duty-bound to play its part in supporting IPCAs to come to fruition without impediment. There are numerous other obligations that Canada has towards Indigenous peoples outside of the UN Declaration, and IPCAs are very relevant to these as well – such as treaty obligations to share the lands and water, Aboriginal title and rights protected in the Canadian Constitution, the Truth and Reconciliation Commission Calls to Action, and the Calls for Justice arising from the National Inquiry into Missing and Murdered Indigenous Women and Girls, to name a few.
With all this promise, it is hard to see why some governments have been so hesitant to get on board with supporting the implementation of IPCAs. There is currently no clear legislative pathway to align Canadian and provincial laws, tenures and decision-making with Indigenous governance of their IPCAs. In fact, Indigenous peoples face major legal barriers erected and maintained by the Crown in doing so, such as resistance to recognizing Indigenous jurisdiction, resource tenure regimes that give away forestry, mining and other rights to land and resources without Indigenous consent, and lack of interim measures for protection while governance agreements are negotiated. BC’s UN Declaration Action Plan does not mention IPCAs specifically, and Canada’s is yet to be released. Even when an IPCA agreement has been made, Canada has not always lived up to the spirit of its commitments, as was the case for the Łutsël K’é Dene First Nation when their culture camp within the Thaidene Nëné IPCA was raided by RCMP for hours, and the search warrant revoked by a judge shortly thereafter.
Concerns for industry and the economy often arise in response to IPCAs. Resource tenures (resource licences, leases etc. granted by the Crown to third parties) certainly play a role in frustrating Indigenous governance over their territories. IPCAs, however, are far from a wrench in the economy.
IPCAs sit in stark contrast to state-centric binary visions of protected areas or “parks” that are off-limits to people for uses other than recreation, while the vast majority of lands and waters are sacrifice zones where there are few limits to the extractive activities that can take place. Instead, IPCAs (in accordance with the respective Indigenous legal order) may allow for many kinds of economic activity within an IPCA, subject to constraints to avoid over-exploitation and uphold the conservation purposes of the IPCA. Indigenous decision-making allows for greater certainty for industry by avoiding future legal battles over free, prior and informed consent requirements under the UN Declaration, for example. IPCAs also allow for a diversification of the economy by opening the door for new industries, such as ecotourism, to develop. As my colleague Estella White explored in a recent report, IPCAs are great for the economy.
Governments have put forth many different reasons for lack of action in getting behind IPCAs. Be it lack of a mandate, or a fettering of jurisdiction issue, they can likely find an answer through investigating legal pluralism as it exists now and has existed before colonial rule. IPCAs, by nature, involve a careful interaction between two or more legal orders, and so are an exercise in legal pluralism.
Many Indigenous nations have extensive experience in working within legally plural settings through managing shared territories with other Indigenous nations over time. Perhaps it is time for Canada to turn to Indigenous legal orders to learn what it takes to share decision-making power and effectively navigate the pluralistic legal landscape. The Crown has a long way to go in building and repairing damaged relationships, the crucial element for this work to succeed. In learning to make friends, Canada might remember that sharing is what was called for by so many treaties signed with Indigenous peoples, and come to recognize the longstanding work that Indigenous people and Indigenous laws have in nurturing the lands and waters that all Canadians benefit from. Without diverse Indigenous peoples protecting their territories, we cannot have biodiversity, and neither can we have reconciliation.
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