By Sheren Kamaei
For millennia, the Gitanyow Nation have exercised their legal authority (also known as “Ayookxw”) to protect and manage the land, air, water, and resources of their Lax’yip (also known as territories). These territories span 55,000km² in the Nass River Watershed, Upper Kitwanga River, and Upper Kisiox River. The Constitution of the Gitanyow Nation affirms the Gitanyow Nation’s inherent right to self-governance and further declares that the Gitanyow Lax’yip has never been ceded to the Crown, another First Nation, or a third party. Yet, the ability of the Gitanyow to steward the land sustainably for future generations (gwelx ye’enst) has been impeded by intrusions sanctioned by the Crown. Faced with environmental degradation and the impacts of climate change, the Gitanyow have taken things into their own hands, most recently with the establishment of an Indigenous Protected and Conserved Area in their territory in accordance with Gitanyow law.
The Colonial Legal Context
In Canadian law, Section 35 of the Constitution Act, 1982 recognizes and affirms aboriginal and treaty rights, including rights to land and resources. Internationally, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affirms the right of the Gitanyow to make decisions about their territories and entitles them to provide their free, prior, and informed consent before development projects can take place. British Columbia enacted the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in 2019, which requires the province to take all necessary steps to ensure that provincial laws are consistent with UNDRIP (s 3). However, over the past 150 years, colonial laws have permitted and incentivized mining, forestry, and pipelines; all of which have contributed to environmental degradation on Gitanyow land.[1] For instance, British Columbia’s Mineral Tenure Act permits miners to stake and hold claims on First Nations’ traditional territories without consultation or consent.
The Gitanyow Are Saving B.C. Salmon
In recent years, the Gitanyow have developed “contemporary expressions of our Ayookxw to counter the colonial administrative apparatus”.[2] For instance, the Gitanyow have developed the Gitanyow Lax’yip Protection Plan, which provides direction to industry and Crown representatives on how they should behave on their Lax’yip. In 2012, they signed the Gitanyow Huwilp Recognition and Reconciliation Agreement (the “Gitanyow Agreement”), which established the Hanna Tintina Conservancy and protected 24,000 hectares of land in the Hanna Tintina Watershed.[3] This conservancy was particularly important for protecting sockeye salmon—a species that supports the ecosystem of Meziadin lake and is critical to the Gitanyow’s culture and subsistence.[4]
In the years since the Gitanyow Agreement was ratified, conditions on the Lax’yip have changed. Although sockeye salmon historically spawned in the watersheds of the Hanna and Tintina creeks (an area protected by the conservancy), the impacts of climate change have led salmon stock to decline significantly in this area.[5] In 2016, the Gitanyow Fisheries Authority discovered that a significant amount of salmon was spawning in Strohn Creek, which had been excluded from the conservancy.[6] Fisheries researchers found that increased glacial melt has rendered Strohn Creek a more suitable habitat for salmon spawning.[7] However, there have been six mineral claims in the area; and if drilling occurs, Strohn Creek will no longer be an ideal salmon habitat.[8]
Figure 1 - Meziadin Lake: The Glacier Supports the Last Healthy Sockeye Salmon Population.
To address these changing conditions, the Gitanyow Hereditary Chiefs called on the provincial government to expand the existing conservancy to include Strohn Creek, Surprise Creek, and smaller streams that drain into Meziadin Lake.[9] However, the province did not take the necessary steps to do so.[10] Tara Marsden, Wilp Sustainability director for the Gitanyow Hereditary Chiefs’ Office, believes the province was reluctant to protect the area due to the financial benefits of allowing mining activity.[11] Additionally, British Columbia’s mining legislation is designed to prioritize mining interests over the interests of First Nations and the environment. Section 21 of the Mineral Tenure Act, for instance, only protects parks from mineral exploration. This means that even if the provincial government did expand the conservancy, mining companies could still stake and develop claims in Strohn Creek.
The Land Must Be Cared for by the Original Stewards
Therefore, the Gitanyow decided to take matters into their own hands. On August 28, 2021, the Gitanyow people declared Wilp Wii Litsxw Meziadin (now including Strohn Creek) an Indigenous Protected and Conserved Area (IPCA) under Gitanyow traditional law.[12] Representatives from the provincial government declined to attend this event.[13] Thus far, the provincial government has not recognized the IPCA despite commitments to align provincial law and policy with the UNDRIP.[14]
This IPCA illustrates the integral role Indigenous law can play in environmental governance.[15] The Gitanyow have combined Ayookxw and western science to develop a complex understanding of the ecological health of the land, and have taken the necessary steps to respond to climate change on their territories.[16] As Simogyet (Chief) Wii Litswx Gregory Rush, Sr. has stated, “this area must be cared for by the original stewards of this land—Wilp Wii Litsxw and the Gitanyow.”[17]
Thank you to Tara Marsden for her insight. To learn more about the Wilp Wii Litsxw Meziadin Indigenous Protected area, please watch the documentary film Ha Nii Tokxw: Our Food Table. Donations are welcome to support the Gitanyow Wilp Sustainability Plan.
[1] Tara Marsden & Deborah Curran, Ayookxw Responding to Climate Change (2021), online: Canadian Institute for Climate Choices <https://climatechoices.ca/publications/ayookxw-responding-to-climate-change/> [Marsden].
[2] Ibid.
[3] Jessica Clogg, Upholding the Law, Protecting the Land, Sharing the Wealth (2012), online: West Coast Environmental Law < https://www.wcel.org/blog/upholding-law-protecting-land-sharing-wealth>.
[4] Rescan, KSM Project: Gitanyow First Nation Traditional Knowledge and Use Desk‐based Research Report (2012), online: Rescan Environmental Services Ltd. <https://www.acee-ceaa.gc.ca/050/documents_staticpost/49262/89282/Chapter_30_Appendices/Appendix_30-C_Gitanyow_Tradnl_Use_Desk_Based_Research_Report_.pdf>.
[5] Matt Simmons, Saving the salmon: why the Gitanyow are creating a new Indigenous Protected Area
(2021), online: The Narwhal <https://thenarwhal.ca/gitanyow-ipca-bc-government/> [Simmons].
[6] Vovo Productions, Support the Wilp Wii'Litsxw Meziadin Indigenous Protected Area (2021), online: change.org <https://www.change.org/p/british-columbia-provincial-government-support-the-wilp-wii-litsxw-meziadin-indigenous-protected-area?redirect=false> [Vovo Productions].
[7] Ibid.
[8]MiningWatch Canada and the BC Mining Law Reform network, B.C. Fails to Meet Indigenous Consent Standard for Mining—8 recent cases (2021), online: reform BC Mining<https://reformbcmining.ca/wp-content/uploads/2021/11/BCMLR-failing-FPIC-report.pdf> [MiningWatch Canada].
[9] Vovo Productions, supra note 8.
[10] MiningWatch Canada, supra note 10.
[11] Simmons, supra note 7.
[12] Vovo Productions, supra note 8.
[13] Simmons, supra note 7.
[14] MiningWatch Canada, supra note 10.
[15] Jessica Clogg, Hannah Askew, Eugene Kung, Gavin Smith,”Indigenous Legal Traditions and the Future of Environmental Governance in Canada” (2016) 29 J. Env. L. & Prac. 227 at 17.
[16] Marsden, supra note 2.
[17] Simmons, supra note 7.
