The Canadian Parks and Wilderness Society - BC Chapter
410-698 Seymour Street
Vancouver, BC V6B 3K6
Tel: (604) 685-7445
Fax : (604) 629-8532
[email protected]
http://www.cpawsbc.org
© Canadian Parks and Wilderness Society, 2009
Canadian Parks and Wilderness Society. 2009. First Nations and Marine Protected Areas:
An introduction to First Nations Rights, Concerns and Interests Related to MPAs on
Canada’s Pacific Coast. Prepared by Julie Gardner, Dovetail Consulting.
Available online at
http://www.cpawsbc.org/files/First_Nations_MPAs_Full_Report_Oct2009.pdf
Cover photo credits: Sabine Jessen, Christian J. Stewart
Cover design by Roger Handling, Terra Firma Digital Arts
Acknowledgements
CPAWS and the author would like to express our deep appreciation to the 22 people who
gave their time to be interviewed for this research. We are also grateful to the following
people who reviewed a draft of the report: Nancy A. Morgan; Mimi E. Lam, Ph.D; Bruce
Watkinson; and Martin Weinstein, Ph.D. Many improvements to the report were made
based on their useful insights and expertise. Nevertheless, any errors remaining in the
report are solely the responsibility of the author.
CPAWS is very grateful for the financial support provided by the Gordon and Betty
Moore Foundation, and to Meaghan Calcari at the foundation for her support and
guidance of this work.
ii
First Nations and MPAs on Canada’s Pacific Coast
Contents
Foreward........................................................................................................................... vi
Overview .......................................................................................................................... vii
1
Introduction............................................................................................................... 1
2
First Nations Connections with the Ocean ............................................................. 4
2.1 First Nations governance and the ocean .............................................................. 4
2.2 First Nations relationship to the ocean................................................................. 6
2.3 Loss of access to food from the ocean ................................................................. 9
2.4 Difficult fit of MPAs with First Nations perspectives ....................................... 11
3
Aboriginal Rights and Title in Relation to MPAs................................................ 13
3.1 Rights and title in the marine setting ................................................................. 14
3.2 Consultation in MPA establishment .................................................................. 19
3.3 General implications of rights and title for MPAs............................................. 25
4
Risks and Opportunities in MPAs for First Nations ........................................... 30
4.1 Fisheries ............................................................................................................. 30
4.2 Ecosystem conservation..................................................................................... 36
4.3 Economic considerations ................................................................................... 38
4.4 Cultural/archaeological sites.............................................................................. 40
4.5 Science, information, knowledge....................................................................... 41
5
Mechanisms for Addressing First Nations Rights, Concerns and Interests
Related to MPAs ..................................................................................................... 45
5.1 Tailoring MPAs to address First Nations interests ............................................ 45
5.2 Shared authority for MPAs ................................................................................ 50
5.3 First Nation-driven marine conservation ........................................................... 54
5.4 Regional and coast-wide initiatives ................................................................... 58
6
The Overarching Importance of Relationships.................................................... 65
6.1 Shared understanding......................................................................................... 65
6.2 Mutual support ................................................................................................... 69
6.3 Appropriate communication .............................................................................. 71
7
Overview of Promising Approaches for Collaboration with First Nations on
MPAs in BC ............................................................................................................. 76
7.1 Respect Aboriginal rights and title. ................................................................... 76
7.2 Build relationships. ............................................................................................ 76
7.3 Connect MPAs to First Nations interests and improve awareness of concerns. 77
7.4 Tailor MPAs to address First Nations interests. ................................................ 79
7.5 Encourage shared authority for MPAs............................................................... 79
7.6 Situate MPAs in a regional and coast-wide context. ......................................... 80
8
References ................................................................................................................ 82
8.1 Documents ......................................................................................................... 82
First Nations and MPAs on Canada’s Pacific Coast
iii
8.2 Cases .................................................................................................................. 87
9
Interviewees and Speakers ..................................................................................... 88
9.1 Interviewees ....................................................................................................... 88
9.2 Conference/workshop speakers ......................................................................... 89
List of Boxes
Box 1: Examples of First Nations approaches to marine conservation .............................. 6
Box 2: Ways of ensuring consultation of First Nations on Protected Areas is meaningful
............................................................................................................................... 25
Box 3: Ways of respecting Aboriginal rights and title in the establishment of protected
areas ...................................................................................................................... 27
Box 4: Ways MPAs may counteract the impacts of over-fishing to serve First Nations
interests ................................................................................................................. 34
Box 5: Ways of respecting First Nations culture in establishment and management of
MPAs .................................................................................................................... 41
Box 6: Components of a co-management agreement for an MPA ................................... 51
Box 7: Benefits of protecting areas for FSC harvesting ................................................... 56
Box 8: Benefits of Marine Use Planning for First Nations in connection with MPAs..... 62
Box 9: ENGO modes of communication to increase potential for convergence with First
Nations .................................................................................................................. 67
Box 10: Culturally sensitive practices and protocols for building trust and respect ........ 74
Box 11: Overview of guidelines for building relationships.............................................. 77
List of Tables
Table 1: Overview of MPA risks and benefits for First Nations ...................................... 78
iv
First Nations and MPAs on Canada’s Pacific Coast
List of Acronyms
Aboriginal Aquatic and Ocean Management (AAROM)
BC Aboriginal Fisheries Commission (BCAFC)
BC Marine Conservation analysis (BCMCA)
British Columbia (BC)
Canada National Marine Conservation Areas Act (CNMCAA)
Canadian Parks and Wilderness Society (CPAWS)
Community Conserved Areas (CCAs)
Environmental non-government organizations (ENGOs)
Fisheries and Oceans Canada (DFO)
Food, social and ceremonial (FSC)
Gulf Islands National Park Reserve (GINPR)
Hul’qumi’num [Treaty Group] Management and Harvest Areas (HMHAs)
Large Ocean Management Areas (LOMAs)
Marine Protected Area (MPA)
Marine protection areas (MPnAs)
Marine use planning (MUP)
Memorandum of Understanding (MOU)
National Marine Conservation Area (NMCA)
National Oceanic and Atmospheric Administration (NOAA)
Pacific North Coast Integrated Management Area (PNCIMA)
Rockfish Conservation Areas (RCAs)
Wildlife Conservation Society (WCS)
First Nations and MPAs on Canada’s Pacific Coast
v
FOREWARD
Ocean and coastal ecosystems around the world are experiencing serious declines due to
a variety of human stressors that range from pollution, destruction of habitat, invasive
species, to overfishing and climate change. In addition to the decline in biodiversity,
these changes are also affecting the ecosystem services on which human communities
depend. These issues are also affecting the coastal communities of British Columbia.
Coastal First Nations in British Columbia have had a profound cultural, economic and
physical relationship with coastal and ocean environments since time immemorial.
Scientists around the world have urged the establishment of networks of marine protected
areas (MPAs), as one tool to address the biodiversity declines in coastal and ocean
environments. First Nations traditional and current connections to and governance
authorities over marine resources are pivotal to future conservation management
arrangements including marine protected areas (MPAs).
As an advocate for improved ocean conservation on the BC coast that includes MPAs,
CPAWS also recognizes that conservation efforts will only be successful if they respect
First Nations rights, concerns and interests. We commissioned this report to provide an
introduction to these themes in connection with MPAs, including legal and treaty
imperatives, cultural and economic considerations, and past experiences of First Nations
with MPAs.
Our aim in commissioning this work was to encourage broader understanding, and
identify necessary changes and promising approaches to achieve a collaborative, coastwide network of MPAs in BC. In addition, we hope the report can help to advance
communications with First Nations and to align strategies around shared interests in
MPAs. Most fundamentally, we see the document as a platform for enhanced
communication and ongoing dialogue. We anticipate that discussion, questioning,
clarification and expansion of the themes outlined in this report will help build
relationships in the pursuit of effective marine conservation. We hope that First Nations
leaders and spokespersons will flag for us any misunderstandings, errors and gaps in this
edition of the report.
We believe the report will be a very useful reference for a variety of organizations
working toward the establishment of MPAs, including other conservation organizations
and federal and provincial governments. Our wish is that First Nations individuals and
organizations who see the potential in MPAs also use the report as a key reference.
We are very grateful to the interviewees and reviewers who gave of their valuable time
and contributed insightful comments and suggestions, and look forward to receiving
additional recommendations for improvements from future readers.
Sabine Jessen
Vancouver, BC
5 January 2009
vi
First Nations and MPAs on Canada’s Pacific Coast
OVERVIEW
First Nations have had a profound cultural, economic and physical relationship with the
ocean since time immemorial. Aware that conservation work in British Columbia’s
coastal waters can only be successful if it respects this relationship, the Canadian Parks
and Wilderness Society (CPAWS) commissioned this report to help encourage a broader
understanding of First Nations1 rights, concerns and interests2 regarding Marine Protected
Areas (MPAs). The report covers legal and treaty themes, cultural and economic
considerations and past experiences, and it identifies necessary changes and promising
approaches to achieve a collaborative, coast-wide MPA network in British Columbia
(BC).
The focus is on the Pacific coast of Canada. Perspectives on First Nations and MPAs
were gathered primarily through 21 interviews and review of unpublished conference and
workshop proceedings in BC. These sources were supplemented by reports and other
literature pertinent to BC. Some experiences from other parts of Canada and the world
were incorporated through literature sources.
The research results are organized into six main sections (following the introduction):
Section 2, First Nations Connections with the Ocean, provides context by exploring First
Nations governance concerning ocean resources, First Nations relationships to the ocean,
loss of access to food from the ocean and the difficult fit of MPAs with First Nations
perspectives.
Section 3, Aboriginal rights and title in relation to MPAs, provides further essential
context by explaining foundations for Aboriginal rights and title, consultation in MPA
establishment, and general implications of rights and title for MPAs.
Section 4 provides an inventory of risks and opportunities in MPAs for First Nations,
including those related to fisheries; ecosystem conservation; economic considerations;
cultural/archaeological sites; and science, information and knowledge.
Section 5 looks at mechanisms for addressing First Nations rights, concerns and interests
related to MPAs. These include tailoring MPAs to address First Nations interests, shared
authority for MPAs, First Nation-driven marine conservation, and regional and coastwide initiatives.
The overarching importance of relationships is emphasized in section 6, which
recommends suitable approaches in the areas of shared understanding, mutual support
and appropriate communication.
Section 7 of the report provides an overview of six promising approaches to achieve a
collaborative coast-wide MPA network in British Columbia that addresses First Nation
concerns.
1
The possessive form – First Nations’ – is less and less frequently used, in favour of “First Nations,” when
the term is plural (even when possessive). This is the convention followed in this report. In the singular
case, referring to an individual First Nation in the possessive, the apostrophe is used – First Nation’s.
2
The term “interests” is used broadly in this report to include rights, priorities, objectives, needs, etc.
First Nations and MPAs on Canada’s Pacific Coast
vii
There is much promise for convergence of ENGO, First Nation and federal and
provincial government interests and priorities for marine conservation. MPAs have
potential as a useful tool in this milieu, but there are some serious stumbling blocks with
respect to First Nations support. The foundations for addressing First Nations concerns
are respect for rights and title, strong relationships, and clarity around the benefits and
risks of MPAs to First Nations. If MPA advocates work authentically towards those basic
priorities, they can maximize the potential for earning support for MPAs from skeptical
First Nations and for effective collaboration with First Nations that are open to MPAs.
This work also sets the stage for development of new tools or adaptation of existing
mechanisms that will achieve the benefits of MPAs while addressing First Nations rights,
concerns and interests.
The six approaches summarized in section 7 of the report encapsulate the key directions
that MPA proponents should follow to achieve a collaborative, coast-wide MPA network
in British Columbia:
•
•
•
•
•
•
viii
Respect Aboriginal rights and title.
Build relationships.
Connect MPAs to First Nations interests and improve awareness of First Nations concerns.
Tailor MPAs to address First Nations interests.
Encourage shared authority for MPAs.
Situate MPAs in a regional and coast-wide context.
First Nations and MPAs on Canada’s Pacific Coast
1
INTRODUCTION
Coastal First Nations have had a profound cultural, economic and physical relationship
with the ocean since time immemorial. Their role as communities and governments with
authorities respecting marine resources is gaining prominence in today’s complex coastal
milieu. Five main factors stemming from First Nations traditional and current
connections to marine resources will affect future Marine Protected Area (MPA)
establishment in British Columbia (BC):3
1. First Nations are concerned about the status of and threats to marine resources.
2. First Nations are concerned with potential restrictions that MPAs might place on their
access to marine resources.
3. First Nations have unique knowledge about marine systems, including traditional
knowledge.
4. First Nations are a level of government with influence over decisions on marine
planning and management.
5. Legal issues will arise if the creation of an MPA has a negative impact on Aboriginal
rights and title.
Given the pivotal nature of these realities many proponents4 of MPAs in BC are aware
that any form of conservation in BC’s coastal waters will only be successful if it respects
First Nations5 rights, concerns and interests6, which this report outlines in connection
with MPAs. Themes covered include legal and treaty imperatives, cultural and economic
considerations, and past experiences that have shaped current-day hopes and fears. The
aim is to encourage broader understanding, and identify necessary changes and promising
approaches to achieve a collaborative, coast-wide MPA network in BC. The intended
audience for the report includes those working towards the establishment of MPAs
(mainly environmental non-government organizations and government agencies), and
First Nations organizations and coastal communities.
The report can provide initial guidance but is more importantly a platform for enhanced
communication and ongoing dialogue. Ideally, First Nations leaders and spokespersons
will bring misunderstandings, errors and gaps in this document to the attention of those
who produced the report and other readers. MPA proponents are encouraged to use the
report to advance communications with First Nations and align strategies around shared
interests. Government agencies might draw ideas from the report for new measures to
address First Nations interests in MPAs and related conservation endeavours.
Environmental, non-government organizations (ENGOs) can use the report to guide their
3
These are the same factors that make it imperative for government agencies with MPA responsibilities to
pay attention to First Nations. The factors were highlighted by an MPA needs assessment in the US
(NOAA, 2002, pp. 51-52).
4
The term “MPA proponent” is used interchangeably with MPA supporter, policy maker, planner or
advocate in this document.
5
The possessive form – First Nations’ – is less and less frequently used, in favour of “First Nations,” when
the term is plural (even when possessive). This is the convention followed in this report. In the singular
case, referring to an individual First Nation in the possessive, the apostrophe is used – First Nation’s.
6
The term “interests” is used broadly in this report to include rights, priorities, objectives, needs, etc.
First Nations and MPAs on Canada’s Pacific Coast
1
public awareness-raising efforts and their input into government plans and policies for
MPAs. The report will have served an important purpose if it, in any number of ways,
simply builds relationships around the shared priority of marine conservation.
BC ENGOs have defined an MPA as follows:
An MPA is an area designated to protect marine ecosystems, processes, habitats
and species, including the essentials of marine biodiversity, and which can
contribute to the restoration and replenishment of resources for social, economic,
and cultural enrichment. All MPAs should have a no-take area, but this does not
have to cover most, or all of the MPA. All should have management guidelines.
Most will use zoning as a management tool. Various activities may be permitted
in MPAs, but not oil and gas development, dredging or ocean dumping (WWF et
al. 2006).7
To keep the scope of the research manageable, the focus is on the Pacific coast of
Canada, although experiences from other parts of Canada and the world are incorporated
through literature sources. Views of First Nations in BC were gathered through
interviews, published reports and unpublished conference and workshop proceedings.
Twenty-two people were interviewed:
•
•
•
5 First Nations leaders;
11 individuals who work for First Nations in marine-oriented portfolios, some of whom are
non-native; and
6 federal and provincial employees engaged in marine conservation work who have
experience in interactions with First Nations, two of whom are from First Nations.
Most interviewees reviewed the notes from their interviews to ensure accuracy. So as to
maximize the comfort level of the interviewees to offer candid opinions based in their
own experience no request was made to quote them in the report. Accordingly, the
interviewees are cited with codes in the text to maintain anonymity. See section 9.1 for
more information on the interviewees.
From three sets of unpublished conference and workshop records, 13 speakers are cited:
nine are from First Nations, and four are non-First Nations people working with First
Nations. Two of the latter are lawyers. Most of the First Nations speakers are leaders
(Chiefs, etc.). Codes are again used to maintain anonymity, in this case because the
records are unpublished and it could not be assumed that the speakers would be willing to
be quoted. Four other First Nation speakers are cited from the published proceedings of
the Big Eddy Symposium (Gardner 2009). See section 9.2 for more information on the
speakers and the workshops/conferences at which they spoke.
A few cautionary notes are important to bear in mind. It could be seen as inappropriate
for a non-First Nation author to be seeking to paint a picture of First Nations interests.
Those involved in this project believe, nevertheless, that clarifying these interests as far
as possible in a venture of this scope is better than merely speculating on them. Improved
understanding of First Nations interests in marine conservation can lead to recognition
and alignment of interests, or at least minimization of conflict. This report in no way
presumes to be expressing views on behalf of First Nations. Furthermore, it recognizes
7
2
See section 5.1 for ideas regarding changes to this definition to meet First Nations interests.
First Nations and MPAs on Canada’s Pacific Coast
that myriad important considerations cannot be generalized across First Nations because
of the significant differences between First Nation communities.8
While MPAs are the focus, it is critical to be aware that this conservation mechanism fits
into a broader suite of marine management measures that in turn serve our collective
interest in the health of ocean ecosystems. Working together, ENGOs, First Nations and
government agencies9 should be able to protect the web of life, of which we are all a part,
and on which we all depend.
8
See section 6.3.1 for a fuller introduction to these differences (e.g. cultural, historical and current political
differences).
9
These groups in turn consult with stakeholders in marine resources and engage coastal communities.
First Nations and MPAs on Canada’s Pacific Coast
3
2
FIRST NATIONS CONNECTIONS WITH THE OCEAN
The connection of coastal First Nations with the ocean is profound. The scope of the
research for this report allows only a sampling of some general themes that deserve
emphasis as a backdrop to understanding First Nations concerns and interests related to
MPAs.10 These broad themes are governance, relationships to the ocean and access to
food from the sea. Some key messages under these themes point to incompatibilities with
MPAs.
2.1
First Nations governance and the ocean11
2.1.1
“The hereditary Chiefs own this territory and are responsible for the
resources and the people within it” (Interview #10).12
First Nations governance along the BC coast is centered in families or groups (e.g.,
houses or clans) who own distinct territories, often led by hereditary Chiefs. For example,
the Heiltsuk Nation’s territory covers over 35,000 km2 of land and sea. The Heiltsuk
people have lived in that territory for over 10,000 years and their livelihoods and culture
revolve around the entire territory (Speaker #3). The Chiefs or other head persons in the
various First Nations are responsible for the resources and people within their territories
and ensure that access rights and other laws, such as those determining what can be
harvested and when, are adhered to (Interview #10, Interview #20, Speaker #6B, Speaker
#3, Francis Frank in Gardner 2007). Ancestral protocols between groups or tribal
councils help resolve incidents that can happen between tribes (Speaker #6).
A popular view of First Nations territories might bring forests and mountains to mind, but
marine areas were also very much a part of coastal First Nations territories. The
ethnographer, Swanton, wrote in 1905 that the Haida had given names to their halibut
fishing grounds, which were owned by certain families (R. Jones 2007). This and other
historical accounts confirm that harvesting rights held by different Haida lineages
extended well out to sea, where species such as halibut and black cod were fished. Other
First Nations, too, exercised proprietary rights to ocean spaces. While landmarks can
distinguish territorial boundaries in the ocean, the seaward portions of territories are
typically not as clearly defined as terrestrial areas (Interview #19). As a result, non-First
Nations people can have difficulty achieving a clear understanding of First Nation
territories in the ocean and governance of them by groups along the coast. Nevertheless,
10
Authors who provide more in-depth coverage of various of these themes include Wayne Suttles, Ronald
Trosper, Nancy Turner, Charles Menzies, Rosemary Ommer, Diane Newell, Lynne Pinkerton, Russ Jones
and Douglas Harris.
11
Note that some current-day First Nation governance structures relevant to the marine environment are
mentioned in section 6.3.5.
12
Not all First Nations had hereditary Chiefs as the leaders of their territories. For lack of a better term to
encompass the various leadership positions in the coastal First Nations this report usually uses the term
Chief for head person in the governance process. Band Councils have elected Chiefs who are important
current-day leaders.
4
First Nations and MPAs on Canada’s Pacific Coast
there is an opportunity to approach First Nations through the system of Chiefs in some
regions (Interview #10, Speaker #6).
Over time individual First Nations have gradually developed relationships with the
federal and provincial governments. As well, political organizations have been
established that are mandated to support the assertion of rights, including the First
Nations Summit,13 the BC Assembly of First Nations14 and the Union of BC Indian
Chiefs.15 Tribal Councils also represent the interests of certain groups of First Nations.
With the support of these organizations, First Nations are deciding who in their own
communities and in their regional structures should respond to different issues (Speaker
#5). At the same time, the institutional arrangements for governance differ significantly
between the various First Nations, and many do not have the capacity to respond to
overtures from outside parties that other governments have. Accordingly, it would not be
appropriate for interest groups to assume they can “lobby” First Nations as they do
provincial and federal governments today (Interview #10).16 Non-native interests also
need to be mindful of the fact that the fact that they are not constituents of any of these
First Nations governments – First Nation governments have no obligation to consult
people outside of their own communities.
2.1.2
“The cyclical life of marine species determined whether there would be
activity” (Interview #20).
Traditional resource management systems for First Nations on the BC coast included
ownership of productive resource harvesting locations by communities or family groups
as part of their territories (Ayers 2005).17 Agreed upon laws and experts guided First
Nations people through permissible resource use processes to ensure accountable and
responsible behaviour (Interview #13).18 To the extent that access was generally limited
to family members, under the oversight of the Chiefs, one could look at the highly valued
harvesting areas or even whole territories as protected areas. Harvesting might be
prohibited as a short-term response to stock depletion, with some instances of longerterm prohibition of harvest (Interview #10). The basic management prescription was to
select areas and resources such that abundant resources were harvested as scarce ones
were left to lie fallow. The notion that members of the community would be required not
to use the resources in a given area on a permanent basis, as in a modern, no-take MPA,
does not generally fit with First Nations worldviews.
First Nations initiatives related to marine use and conservation in today’s planning
context are introduced in sections 5.3 and 5.4.4. In Box 1 are some brief examples of
ways that First Nations traditionally would conserve ocean resources.
13
http://www.fns.bc.ca/about/about.htm
http://www.bcafn.ca/
15
http://www.ubcic.bc.ca/
16
See section 6.3 for more information on appropriate ways of communicating with First Nations.
17
Ayers’ writing is specifically about the Hul’qumi’num people. She mentions that this is similar to
indigenous resource tenure systems in other parts of the world, such as Oceania and New Zealand.
18
Referring to the Coast Salish.
14
First Nations and MPAs on Canada’s Pacific Coast
5
Box 1: Examples of First Nations approaches to marine conservation
•
•
•
•
•
•
The Tsleil-Waututh had expert leaders who would ensure that if there were conservation
issues with marine species their people would not be catching those species (Interview #7).
If Heiltsuk Chiefs and elders saw low returns then there would be no fishing. Protected areas
were not necessary – the cyclical life of marine species determined whether there would be
activity (Interview #20).
Nuu-chah-nulth Chiefs would restrict or prohibit harvest on salmon streams until enough fish
reached the spawning ground. The Chiefs would have known special habitats such as nursery
areas to protect (Interview #10). In a sense, the whole territory was treated like a park,
keeping resources in balance with the ecology and the people who live there (Interview #6).
In Haida Gwaii 10,000-20,000 people used marine resources as most of their diet without
depleting them. Taboos and rules set out how they were to use the resources and when. For
example, they would generally fish halibut further out to sea, saving stocks closer to village
sites for times when conditions restricted sea travel (Interview #9).
On the Washington coast, there are places not traditionally used, largely because they could
not be accessed, or places where Tribes do not fish because of the season or contamination.
Traditional methods of fishing (e.g. traps/gates across rivers) were more selective than
today’s (e.g. gillnetting) (Speaker #4). The Samish had areas that were so precious that they
virtually amounted to no-take areas. These included areas that were kept clean (e.g. no
hunting, fishing or camp fires) for ceremonial bathing. As well, each family looked after
estates that included good oyster and clam beds, and fishing areas (Speaker #2).
For the Hul’qumi’num, “traditionally, active management to maintain ecological integrity or
to protect and preserve biodiversity (i.e. prevent extirpation) is premised on the thought that
human impacts must be managed and, where damage has occurred, restoration undertaken”
(Ayers 2005). For example, they managed shellfish resources by digging over beaches,
transplanting shellfish from one area to another, and modifying intertidal zones to increase
clam and oyster growing grounds to increase production. They may have left areas fallow for
a time to recover but they were still permitted in these areas to actively manage them. Their
experts would say why and when the area is closed or open to active use, until it recovered
and could be used again (Ayers 2005, Interview #13).
2.2
First Nations relationship to the ocean19
2.2.1
“Heshook-ish tsawalk” (Nuu-chah-nulth)
Heshook-ish tsawalk20 means “everything is one” in the Nuu-chah-nulth language. This
perspective includes all reality, both physical and metaphysical. It contrasts to a western
way of thinking and science that compartmentalizes experience and fragments reality.
Instead it assumes unity, interconnectedness and interrelatedness (Atleo 2004).21 The
notion of oneness extends to the cultures of other First Nations and includes the
connection of First Nations with the ocean: humans are just one of many species that
populate the oceanfront. Furthermore, one part of the ocean is a part of all oceans and the
land and ocean are intimately connected (e.g., the wolf can turn into a killer whale and
19
In this report the words ocean and sea are used interchangeably.
This has also been spelled Hishuk ish tsawak (http://www.nuuchahnulth.org/culture/culture.html)
21
See Atleo 2004 for an explanation of the theory of Tsawalk.
20
6
First Nations and MPAs on Canada’s Pacific Coast
vice versa) (Speaker #6B). More broadly, the natural world and all its elements have an
intrinsic spiritual value, including marine species (R. Jones 2007).22 With this worldview
comes a deep sense of reverence and respect, which is largely rooted in the genesis
stories (Speaker #5).
Viewed as part of the ecosystem, integral to its function and health, impacting it and
being impacted by it, coastal First Nations people feel a connection with nature at a first
hand level (Ayers 2005, 2006, Interview #13).23 They have a responsibility and
obligation to the land and water that some describe as stewardship but does not include a
hierarchical relationship or a separation of humans from the environment (Interview #7,
Interview #13). Thus, a fundamental implication of “Everything is one” is that MPAs
cannot be imposed in a way that separates First Nations from the ocean and its resources.
Respecting each other and respecting marine resources is fundamental to the
traditional Hul’qumi’num culture. This principle is still regarded as extremely
important in a contemporary sense. … The connection to the land and sea and the
resources is an important component of the Hul’qumi’num way of life (Ayers
2005 p.71).
As First Nations people make up a majority of the population in many coastal areas, they
are a link between the land and the sea. When Indian reserves were identified by the
McKenna-McBride Royal Commission on the coast in the early 1900s, the First Nations
viewed the reserves as extending seaward, as starting points for foraging expeditions out
to sea (Interview #4).
2.2.2 “Our whole life revolves revolve around the ocean” (Interview #9).
The connection between coastal First Nations and the ocean is deeply embedded in their
culture. Simon Lucas of the Hesquiaht First Nation explains four important components
of the ocean in First Nations life: spiritual (e.g. expressed in ritual and ceremony, such as
the 12 months of preparation for a whale hunt), emotional (e.g. a sense of wealth, as
expressed in feasts), mental (e.g. mental stability based in good nourishment) and
physical (e.g., the strength required to row boats to collect food from the sea, the health
based on a natural seafood diet) (Gardner 2007).
Even [First Nations] people whom I would think don’t have that strong a
connection to sea resources any more, once they’re given a chance to be on the
ocean I am surprised how strong that connection is – people are brought to tears
with being out there again – it’s very real. Their conservation ethic is just as real
due to that connection with sea resources (Interview #10).
Francis Frank, then President of the Nuu-chah-nulth Tribal Council, stated at the 2006
Big Eddy symposium (Gardner 2007), “We are a fishing people where our culture,
spirituality, sustenance, and economy are inextricably linked to the ocean’s resources.”
Thus, First Nations connection with the ocean goes beyond sustenance, but the
importance of food from the sea cannot be over-estimated. It is a source of strength –
22
23
Jones is referring to the Haida.
Ayers is referring to the Hul’qumi’num; Interview #13 to the Coast Salish.
First Nations and MPAs on Canada’s Pacific Coast
7
even a lifeline. A major portion of the diet of many First Nations still comes from the
ocean, and dependence on seafood was even stronger in the past.
Our elders say ‘When the tide goes out, our table is set’. That's not true today
because of pollution (Jacks 2001).
An archeological dig showed that the Hesquiat people used 71 species on the coast
(Speaker #6B). The Tsleil-Waututh harvested many resources from their beaches up to
the early 1980s, even though by that point depletion was already significant. During the
depression, Tsleil-Waututh people were well fed compared to others in the Lower
Mainland – “My great-grandmother fed the workers on the Dollarton Highway who were
then able to take their packed lunches home to their families” (Interview #7).
The Haida are pretty close to the ocean and rely upon it for what we put on our
table … our whole life revolves around the ocean. We feed a lot of people – there
is a lot of feasting going on (Interview #9).
The Hupacasath community has always had seasonal rounds related to food that are still
very active today. Approximately 60% of Hupacasath self-harvested foodstuffs are still
marine derived (the other 40% is upland game) (interview #12). They travel to different
areas of the coast to harvest such species as herring, crabs, herring roe, rockfish, clams,
mussels and sea urchins, and up to 15 miles offshore to fish halibut. In the past, whales
and seals were also harvested. All resources are used in a cultural way, including
highlighting special events with feasts. There is an extensive vocabulary for managing
fisheries resources on a sustainable basis (Interview #12).
Our ancestors travelled year round by canoe to harvest food from the lands and
the waters. They went by the tides and knew the right time to travel for each task.
The weather, the tides, the skies, the canoes and their instruments all had words
in our language ... (Hupacasath First Nation 2006).
Another example of the link to the seasons and the integration of seafood harvesting with
culture is the anticipation of the return of the herring spawn in March. Traditional
ecological knowledge indicates that a storm usually cleans the spawn off the kelp. The
storm is a signal to start preparations for drying roe by laying out strips of cedar. There is
a chant about this, expressing joy, gratitude, and respect for the gift of the traditional
food, and giving thanks to the creator for the abundance provided in the territory of the
hereditary Chief. So the herring spawn is part of traditional knowledge and spirituality as
well as a source of nutrition (Speaker #6B).
The knowledge applied to harvest of herring spawn is but one example of the extensive
expertise held by First Nations in connection with the ocean. First Nations elders could
glean much information simply from observing the tides. Some First Nations developed
sophisticated skills and technology, passed from generation to generation, for exploiting
offshore resources such as groundfish (R. Jones 2007).
Another central connection that First Nations have with the ocean is about transportation
– many call it their highway (Interview #7, Interview #12). Canoe travel along sheltered
waters such as inlets and in the open ocean has always been important and is being
rediscovered in many coastal communities today.
8
First Nations and MPAs on Canada’s Pacific Coast
An economic connection has always been strong – again, intertwined with cultural and
spiritual facets of life. The very notion of wealth in coastal First Nations is linked to
resource abundance, which means that resources can be efficiently harvested to meet
family and community needs. A Washington First Nations traditional perspective on
wealth is as follows:
In our area there’s a notion that there’s a certain kind of guardian spirit, a certain
kind of power, that’s very important in a sailing and fishing community. It’s
under-the-water power. Its gift is that your nets are always full of fish. You show
you have this power by giving away a lot of fish. You have power by taking care
of a place. Wealth means the same thing as sustainability. It’s having enough to
share (Speaker #2).
But over the past several decades the colonial paradigm has compromised First Nations
access to the wealth of the ocean:
First Nations in Canada have been marginalized in most economic pursuits,
including the fisheries, and are struggling to regain access. At the same time,
First Nation interests in ocean spaces have broadened from traditional activities
such as fishing and hunting [for home foods and local trade] to a variety of
modern economic and environmental ocean interests (R. Jones 2007).
Like any other communities, coastal First Nations need an economic base. But unlike city
dwellers, First Nations people in most of BC’s remote coastal communities have very few
economic opportunities other than those related to resources (Interview #6).
2.3
Loss of access to food from the ocean
2.3.1
“Where are we going to get our food?” (Interview #20)
Over recent decades First Nations have seen their access to food from the ocean greatly
diminished by three phenomena: habitat degradation, depletion of species, and regulatory
and licensing policy. The First Nation Panel on Fisheries emphasized that many First
Nations are not obtaining adequate aquatic resources for their recognized Aboriginal
rights for food, social and ceremonial purposes24 (First Nations Leadership Council
2007).
Habitat degradation
A Chief describes the threat of habitat degradation in these terms: “the ocean is our
supermarket so if you damage that where are we going to get our food?” (Interview #20).
And the damage is already extensive. Near-urban communities may be impacted by landbased industry (e.g. mills) to the point where marine resources cannot be gathered locally
and they have to travel to the more distant reaches of their territory. This can be costly,
forcing the community to pool its resources to maintain the capacity for continued
harvesting (Interview #12). Hul’qumi’num communities have suffered from the loss of
“usability” of resources such as clams that are no longer edible due to pollution. More
remote communities have also experienced habitat loss, as from the construction of docks
for shipping resources extracted from the land base (Interview #1). Along the BC coast
24
See section 3.1.3 for more information on this harvesting right.
First Nations and MPAs on Canada’s Pacific Coast
9
fish habitat has been extensively impacted by bottom trawling – the ocean ecosystem is
far from pristine.
Species depletion
Rooted to their territories, First Nations cared for their ocean resources differently than
do modern fishing fleets. Comments that contrast current-day fisheries management with
traditional practices are common:
•
•
•
•
•
“We only took enough to eat. It’s not like the dominant society that comes into your territory
and tries to make as much money as possible and get the heck out of there” (Speaker #11).
“We understand the food chain, the currents, where the food is and moves. You’ve got to
understand how long we’ve been here. If our people had been exploiters there would have
been nothing here when your people arrived” (Speaker #6).
“First Nations are not the source of pressure on rock cod, ling cod, etc.: If the marine
conservation concern is the long-lived, slow reproducing species associated with near-shore
habitat like rock fish, First Nation subsistence fishing has never been a problem” (Interview
#1).
Herring was plentiful before the first commercial activities started taking place. Now they are
severely depleted – “there is nothing in Deep Cove” in the Saanich Inlet (Speaker #10), and
“there has been no herring fishery around Haida Gwaii for the past several years” (Interview
#9).
“Year after year of First Nation people digging clams in Hesquiat Harbour (Monkey Beach)
was sustainable; then when a commercial fishery was opened it decimated the clam
population. The Hesquiat worked with Ecotrust on a rebuilding program and asked their own
people to stop harvesting too. Then DFO re-opened the fishery and it was wiped out in one
season” (Interview #1).
Blame is often placed at the feet of decision-makers in Fisheries and Oceans Canada
(DFO), with acknowledgement that social pressures, especially from the fishing industry,
“push things to the limit” (Interview #1B). Fisheries seem to be “managed to extinction”
– or at least to the point where they are no longer economically viable (Interview #9).
There are people who think the ocean is for the taking and the people taking
these decisions live a long way from here and don’t have to live with the
consequences (Interview #9).
Micah McCarty, a member of the Makah Tribal Council, similarly emphasized the
inequity of the consequences of resource mismanagement: “In the post-Columbian era we
have suffered from non-native over-exploitation of traditional resources to the detriment
of our traditional ways of life and communities … The Makah are left to pick up the
pieces” (in Gardner 2007).
Regulatory and Licensing Restrictions
The decline of fisheries resources adds insult to injury, as the licensing and regulations
intended to maintain fish stocks in the first place were a serious blow to First Nations
who had previously managed their own activities. Over time, licensing changes
increasingly squeezed out participation by First Nations (and many other people in
fishing communities along the coast) (Interview #9). By the 1980s, the capacity to fish
for food had become somewhat dependent on involvement in the commercial fisheries, as
it provided the financial basis for the upkeep of the boats, etc. Licensing measures that
restricted the ability of households to sell fish meant that most of the smaller boats
10
First Nations and MPAs on Canada’s Pacific Coast
disappeared. Dependence on a few, large, licensed vessels, such as seine boats, has
changed the nature of First Nation communities and fisheries.
Broadly speaking, First Nations are beleaguered by restrictions imposed by legislation,
licences, permits, quotas and other regulations (Fediuk and Thom 2003). The burden of
being regulated and watched is heavy. A survey of Hul’qumi’num households identified
“an overwhelming concern in the community that the management and enforcement
structures of government prevent them from harvesting traditional foods. These barriers
are particularly true in the harvesting of fish and seafoods” (Fediuk and Thom 2003).
It is not a good thing for First Nations people to feel uncomfortable doing what
they’ve always done in their traditional territory – if regulations change such that
they are then operating outside the law this is a bad thing (Interview #6).
2.3.2
“Marine areas are not just resources for the taking” (Interview #9).
It is a deeply held view that marine resources are a keystone of coastal First Nations
culture and it is essential that these resources are there for future use (Interview #19).
There is a need to look at marine areas in a different way – not just as “resources for the
taking at the whim of man” (Interview #9). While the First Nations perspective on ocean
conservation may not relate directly to MPAs, it supports the need to take action. Their
interests are in maintaining activities central to their subsistence, health, culture,
spirituality and economy, and they understand that in order for them to carry on those
activities things have to change in the direction of sustainability (Interview #17).
We don’t have a fishing economy anymore – we have about six fish boats left.
We have a threatened relationship with our historic resources. That’s important
culturally and socially. We want a sustained relationship with the resource, and
part of that is an economic relationship. … We need to focus on two things:
protection and rehabilitation of our resources. At the core of what we want is to
restore our cultural relationship with the resources including the eating, sale, etc.
This is not just about looking at resources, but about doing something with them
(Speaker #11).
2.4
Difficult fit of MPAs with First Nations perspectives
First Nations objections to the establishment of protected areas, particularly those
that restrict their access to these areas, is rooted in their concept of natural
ecosystems, which generally differs from that of many environmentalists. …To
many First Nations, wilderness areas ‘untouched by humans’ do not exist. …
This idea contrasts with the views of some wilderness proponents who see
humans as intruders and seek to protect certain areas from all interaction with
humans. This notion ignores the fact that over the past 5,000-10,000 years,
Aboriginal people have been an essential part of the natural ecosystem of British
Columbia (Morgan et al. 1997).
In exploring divergent “storylines” among experts writing about MPAs that lead to
support for either no-take MPAs or conventional fisheries management approaches to
conservation, Peter Jones (2007) concludes that no-take MPA supporters are more
influenced by “preservationist and ecocentric” ethical perspectives (i.e., focused on wider
First Nations and MPAs on Canada’s Pacific Coast
11
fish populations, other marine species and the habitats and ecosystems that support them),
while proponents of conventional fisheries management approaches are more influenced
by the “utilitarian resource conservation” ethical perspective (i.e. focused on sustaining
fish stock yields). The relationship of First Nations to the ocean is not consistent with
either of these storylines. It is neither preservationist nor utilitarian; it is a holistic
perspective that combines both, as expressed in Heshook-ish tsawalk (a Nuu-chah-nulth
concept described in section 2.2.1). The way that fisheries management science portrays
fishermen as predators, and notions of healing ecosystems by “getting rid of the people”
are logical only from a limited biological perspective (Interview #18). Since First Nations
are part of the environment, it does not make sense, culturally, to remove human use from
an area: “the misleading notion that humans are a cancer on this earth … is not an
indigenous view” (Tom Happynook in Gardner 2007). Even a “stewardship” relationship
does not work for some First Nation peoples, to whom it implies an inappropriate
separation or hierarchical relationship between humans and the environment (Interview
#13). The cultural component of a place is just as important to First Nations as ecological
integrity (Weitzner and Manseau 2001, McCarty and Lucas in Gardner 2007).
When MPAs are seen to disassociate humans from nature it renders them an
inappropriate tool for conservation from a First Nations point of view (Interview #1B,
Interview #18). This perceived poor fit of MPAs with First Nations perspectives is
exaggerated because most First Nations people lack a strong understanding of MPAs as a
method of conservation.25 It is often the case that the MPA concept has been poorly
presented to them and that they have had little to no experience with modern day MPAs
(Interview #10). Thus, the term MPA tends to be used generically to connote a marine
area with highly restricted access.
Contrary to this misperception, people will in fact continue to use MPAs for various
purposes. Moreover, protected area managers increasingly realize that people are part of
the ecosystem (Interview #16). The Panel on Ecological Integrity of Canada’s National
Parks recognized that humans and their traditional activities were part of “natural”
ecosystems for thousands of years. For Parks Canada, ecological integrity now embraces
the traditional human role – although historically it was extirpated from nearly all of
Canada’s national parks (Parks Canada Agency 2000). Yet even when it is explained that
there is a range of optional control measures within MPAs, with one extreme being notake, along a spectrum to various forms of harvesting, some First Nations communities
are still likely to default to the assumption that MPAs do not allow harvesting (Interview
#10).
Another divergence in perspective between many MPA proponents and people living in
First Nation communities is the national and global outlook of the former as compared to
the more regional and territorial focus of the latter. The rationale for siting and
establishing MPAs is frequently based on the ecological significance of an area at the
coast-wide scale and beyond, or the existence of a feature that is important at this scale
due to its uniqueness. This justification is not typically evident to First Nations, who are
place-based peoples for whom the conservation of marine resources is culturally
embedded.
25
The same might be said for most people outside of First Nations communities as well.
12
First Nations and MPAs on Canada’s Pacific Coast
3
ABORIGINAL RIGHTS AND TITLE IN RELATION TO MPAS
Coastal First Nations generally view their territories, as well as their Aboriginal rights
and title to those territories, as extending not just over the land, but also the marine areas
that they have used, occupied and controlled for thousands of years.
For First Nations, the existence of sea title is as obvious as Aboriginal title to dry
land as there are no dividing lines when you step out your front door onto the
beach or when you board a canoe to travel to a nearby fishing ground (R. Jones
2007).
It is therefore not surprising that First Nations see the establishment of MPAs within their
territories as having an impact on their rights to the marine area. Whether or not they
support MPAs is consequently closely tied to whether they see MPAs as advancing or
infringing upon the exercise of their Aboriginal rights and title.
First Nations concerns that MPAs may infringe their Aboriginal rights and title arise
primarily because the establishment of MPAs may limit their ability to harvest in the
areas. This thereby reduces their access to resources they depend on, and may prevent
them from exercising a role in the management of the areas. In many cases, First Nations
may be willing to support the establishment of an MPA if their harvesting rights in the
area can be recognized and protected and if an agreement can be worked out, such as a
co-management agreement, through which they can have a significant say in the
management of the area.26
First Nations concerns about MPAs have to be given careful consideration as the courts
have made it very clear that the federal and provincial governments may not infringe on
asserted Aboriginal rights and title without first consulting and, if necessary,
accommodating First Nations interests. The obligation to consult and accommodate arises
even in circumstances where a First Nation has not yet proved in court that it has
Aboriginal title or other Aboriginal rights. As the establishment of MPAs may impact on
First Nations rights and title, there are serious legal risks associated with establishing
MPAs in the absence of an arrangement with First Nations that either avoids infringing
their rights and title or accommodates them. Moreover, even the legislation establishing
MPAs itself may be found to infringe Aboriginal rights and title and therefore to be
invalid to the extent of the infringement.
The legal imperatives of rights, title, consultation and accommodation are central to the
relationship between the Governments of Canada, British Columbia and First Nations,
and have fewer immediate implications for other proponents of MPAs such as ENGOs.
Nevertheless, all those working towards MPAs need to recognize this legal context as it
relates to both MPA establishment and management.
26
. The three terms, cooperation, collaboration and co-management, connote increasing levels of sharing of
decision-making power. True co-management of protected areas is distinguished by agreements that:
provide for the practical exercise of First Nations legal rights; recognize that both parties have their own
authorities, laws and protocols; and establish a relationship of shared responsibility. See section 5.2.2.
First Nations and MPAs on Canada’s Pacific Coast
13
3.1
Rights and title in the marine setting
3.1.1 Foundations for rights and title
The term “Aboriginal rights” refers to a spectrum of rights that extend from non sitespecific Aboriginal rights (i.e. rights that are not tied to a particular place), to site-specific
Aboriginal rights and, finally, to Aboriginal title – the highest form of Aboriginal rights.
Aboriginal rights are protected by section 35 of the Constitution Act, 1982. Section 35(1)
states that “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada
are hereby recognized and affirmed.” The courts have interpreted this to mean that
Aboriginal and treaty rights are protected from unjustified infringement, i.e. they may not
be infringed by any action or decision of another government unless that government can
justify its action or decision. Further, because First Nations rights are constitutionally
protected any federal or provincial legislation that unjustifiably infringes those rights is of
no force or effect.27 As a result, any decision to establish or any legislation that
establishes an MPA may by struck down if the government establishing the MPA cannot
meet the justification test. For this reason, it is important to include First Nations in a
meaningful way in the process for establishing MPAs.
While there have been a number of high profile Aboriginal rights cases over the last few
years, a great deal is still not known about the extent of each individual First Nation’s
rights in relation to specific geographic areas. Even where cases have been brought
before the courts, there have been very few determinations about which First Nations
have Aboriginal title or other Aboriginal rights to what areas. However, the tests for
making such determinations have now been laid out by the Supreme Court of Canada and
tested on several occasions. Therefore, it is now possible to apply the tests to a particular
First Nation and come to a tentative conclusion about whether it is likely that the First
Nation has a strong claim to Aboriginal title or other Aboriginal rights to a particular area
or resource.
In the context of MPAs, two main legal considerations arise. First, does a particular First
Nation have Aboriginal title to the waters and lands that are to be protected by the MPA
designation? Second, if a First Nation cannot meet the test for Aboriginal title to the area
in question, it may still be able to show that it has site-specific Aboriginal rights, such as
the right to harvest marine resources, including fish, shellfish and aquatic plants, in that
area. The tests for proving Aboriginal title and other Aboriginal rights are set out below
under the headings “Aboriginal title to marine areas” and “Aboriginal right to harvest
marine resources.”
Recent court cases have strengthened the First Nations right to be consulted, even where
First Nations have not yet proven that they have Aboriginal title or other Aboriginal
rights.28 These decisions obligate government to involve First Nations in decisions about
resources within their territories. Government lawyers are telling agencies like DFO “you
27
Constitution Act, 1982, section 52.
See CIER 2007 for a list of important cases, including Haida Nation v. British Columbia (Minister of
Forests), [2004] 3 SCR 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment
Director), [2004] 3 SCR 550, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),
[2005] 3 SCR 388.
28
14
First Nations and MPAs on Canada’s Pacific Coast
can’t ignore this anymore” (Interview #10). At the same time, “Canada’s oceans policies
are cautious about acknowledging specific Aboriginal or treaty rights or prescribing a
role for First Nations in ocean management and planning” (R. Jones 2007). Furthermore,
even in negotiations, government’s stance strives to limit First Nations rights to oceans
spaces (R. Jones 2007). First Nations see government actions and policies as often failing
to live up to their obligations and the courts have, in a number of instances, agreed with
First Nations on this.
Another important intersect between First Nations rights and MPAs is the treaty process.
Once First Nations have concluded treaties, their “treaty rights” become protected from
unjustified infringement by section 35 of the Constitution Act, 1982. Treaty rights may
include harvesting rights and rights to be involved in particular ways in decisions
concerning the establishment and management of MPAs. These rights are discussed in
section 3.1.4.
3.1.2 Aboriginal title to marine areas
The test for determining Aboriginal title was set out by the Supreme Court of Canada in
the 1997 Delgamuukw29 case. The Court held that, to prove Aboriginal title, a First
Nation must provide:
(a) proof that it occupied the lands prior to the Crown’s assertion of sovereignty in 1846;
(b) if present-day occupation is relied on as proof of pre-sovereignty occupation, there
must be continuity between present and pre-sovereignty occupation; and
(c) at sovereignty, the First Nation’s occupation of the lands must have been exclusive
(or “jointly exclusive” with one or more neighbouring First Nations).
In terms of applying the test for Aboriginal title in the marine context, the question
becomes whether a First Nation has used and occupied a particular marine area on a
regular basis to the exclusion of others. For example, was a particular marine area known
to be the territory of a particular First Nation? Did others have to obtain the permission of
that First Nation in order to harvest in that area or to travel through it? Was the First
Nation generally able to control the area and keep others out by defending the area
against intruders?
Where First Nations are able to prove Aboriginal title to land, the courts have said that
they have an “exclusive interest in the land,” including the resources of the land.
Aboriginal title confers a right to exclusive use and occupation for a variety of purposes
that need not be tied to the First Nation’s historic practices. Aboriginal title includes the
right of a First Nation to choose how land can be used and has an “inescapable economic
component,” such that fair compensation will ordinarily be required when Aboriginal title
is infringed.30
The courts have stated that the perspective of the First Nation claiming the right must be
taken into account, including the First Nation’s own laws and system of governance.
29
30
Delgamuukw v. British Columbia, [1997] 3 SCR 1010.
Tsilhqot’in Nation v. British Columbia, [2007] BCSC 1700.
First Nations and MPAs on Canada’s Pacific Coast
15
A number of First Nations, including the Haida, Lax Kw’allams31 and Nuu-chah-nuulth,
have initiated court proceedings concerning Aboriginal title to the sea and related fishing
rights. These cases have included claims of infringement of rights and title, claims to
fishing rights, title to fisheries resource harvesting sites, fishing territory and rights to
harvest fish for commercial purposes. The Haida in particular have laid claim to both
inland and offshore waters surrounding Haida Gwaii. Decisions had not been rendered in
these cases at the time of writing, and it is uncertain whether the concept of Aboriginal
title will be extended to apply to marine areas.
Given the current policy approach taken by Canada in its dealings with First Nations, if
future court decisions support First Nations claims to Aboriginal title in marine areas,
Canada’s ocean policies will have to go through fundamental change to recognize this (R.
Jones 2007).
3.1.3 Aboriginal right to harvest marine resources
Even where First Nations are not successful in proving Aboriginal title, they may still be
able to prove that they have a site-specific Aboriginal right to harvest marine resources in
a proposed MPA. The test for Aboriginal rights, other than Aboriginal title, is focused on
whether a particular activity was “integral to the distinctive culture of the First Nation.”
The First Nation must show that it engaged in that activity at the time of contact and that
it was not an activity brought about by contact with Europeans.32
Court cases starting with the landmark Sparrow decision33 in 1990 have repeatedly
confirmed that First Nations have a priority right to fish for “food, social and ceremonial
purposes” (FSC). This right is second only to conservation needs and other valid
legislative objectives and has priority over all other uses of the fishery.34 These rights are
not frozen in time and can be exercised in modern ways. In the 1989 Saanichton
Marina35 case, the Tsawout First Nation was able rely on its Douglas treaty right to fish
in order to protect shellfish habitat from being destroyed (see a further discussion on
treaty rights below under the heading “Treaty rights in marine areas”). Court decisions on
whether First Nations have the right to harvest for commercial purposes have produced
more mixed results for First Nations. In Gladstone,36 a case concerning the commercial
harvest of herring roe on kelp, the Heiltsuk were able to prove that they have a right to
fish for commercial purposes by showing that trade in roe on kelp was integral to their
distinctive culture. They met this test by demonstrating that they engaged in significant
levels of trade of that resource prior to the arrival of Europeans. However, a number of
31
The Lax Kw’allams First Nation’s claim of Aboriginal title to the sea was severed from its Aboriginal
rights claim and has not yet proceeded to court. A decision on its Aboriginal rights claim was recently
rendered. See discussion below under the heading “Aboriginal right to harvest marine resources.”
32
R v. Gladstone, [1996] 2 SCR 723.
33
R. v. Sparrow, [1990] 1 SCR 1075.
34
http://www.pac.dfo-mpo.gc.ca/tapd/fsc_e.htm
35
Claxton v. Saanichton Marina Ltd., [1989] 3 CNLR 46 (BCCA).
36
R. v. Gladstone, [1996] 2 SCR 723.
16
First Nations and MPAs on Canada’s Pacific Coast
other First Nations have not been able to meet this test and have therefore been unable to
prove that they have a commercial right to harvest fish and other marine resources.37
Two more recent cases take a more expansive approach as the cases have been brought
by the First Nations themselves, seeking to prove their right, rather than to defend
themselves against criminal charges. The first of these was brought forward by the Lax
Kw’alaams Indian Band and nine allied Tsimshian Tribes. The second one was advanced
by nine of the fourteen Nuu-chah-nulth First Nations claiming rights and title to a large
portion of the land and offshore waters on the west coast of Vancouver Island from
Kyuquot to Port Renfrew (R. Jones 2007). Among other things, the Nuu-chah-nulth have
advanced a claim that they have a right to catch and sell sea resources to earn a living and
asserted that the federal government (DFO) has implemented policies the effect of which
is to displace Nuu-chah-nulth from the commercial fleet and displace food fisheries with
commercial fisheries, turning rights over to colonial licencing efforts (Interview #12). A
decision was rendered in the Lax Kw'alaams case in 2008, while the trial of the latter is
underway at the time of writing.
In the Lax Kw'alaams decision,38 the Lax Kw'alaams First Nation asserted that its
ancestors had commercially traded with other First Nations and this trade was integral to
the Coast Tsimshian’s distinctive Aboriginal culture. The BC Supreme Court rejected
Lax Kw’alaams’ assertion that its members have an Aboriginal right to fish for
commercial purposes, finding that the Coast Tsimshian harvested fish primarily for
consumption purposes. The court determined that the pre-contact Coast Tsimshian people
existed mainly within a subsistence economy with trade in marine resources being
incidental. The Court found that, while fishing for food, social and ceremonial purposes
was integral to their distinctive society, commercial fishing was not.
The Lax Kw’alaams also argued that the Crown had breached its fiduciary duty and the
honour of the Crown by not permitting the group to fish commercially in priority over
others. On this point, the Court found no fiduciary duty on the part of the Crown to
provide access to a commercial fishery. The Court reiterated that not all interactions
between First Nations and the Crown give rise to a fiduciary duty, and that a recognized
Aboriginal interest must be found in order for a fiduciary duty to arise. Since the Lax
Kw’alaams had not established an Aboriginal right to fish commercially, the Court found
no recognized Aboriginal interest; therefore no fiduciary duty had crystallized.
3.1.4 Treaty rights in marine areas
While very few historic treaties were signed in BC, a number of First Nations on southern
Vancouver Island signed Treaties with Governor Douglas in the 1850s (referred to as the
“Douglas Treaties”). These treaties included provisions stating the First Nations will have
the right to “fish as formerly.” First Nations interpret these provisions to mean they have
extensive rights of access to fisheries, including commercial harvesting, limited only by
37
See Lax Kw’allams Indian Band v. Canada (Attorney General), [2008] BCSC 447, discussed later in this
section. See also R. v. Van der Peet, [1996] 2 SCR 507 and R. v. NTC Smokehouse Ltd., [1996] 2 SCR 672.
38
Lax Kw'alaams Indian Band v. Canada (Attorney General), 2008 BCSC 447
First Nations and MPAs on Canada’s Pacific Coast
17
proven conservation limitations. Interpretation of the Douglas treaties in southern
Georgia Strait sets a difficult backdrop for initiatives around the proposed Southern Strait
of Georgia National Marine Conservation Area (NMCA). Areas of debate or uncertainty
(from some perspectives) include whether the treaties were signed by people who could
represent the nations; whether the First Nations ceded anything by signing the treaties;
and who the present-day holders of the rights and beneficiaries of the treaty are
(Interview #16). Currently many of the First Nations who signed Douglas Treaties are
seeking to implement these treaties and relying on their provisions to defend themselves
against charges of illegal fishing.
The Tsawout First Nation, a Vancouver Island First Nation with a Douglas Treaty, was
able to successfully rely on its treaty rights to prevent the development of a marina on
Crown foreshore, which would have infringed its fishing right by impeding access to the
fishery and destroying the habitat of the stationary crabs that the Tsawout had
traditionally harvested in that area.39
In the 1999 Marshall decision,40 the Supreme Court of Canada overturned Marshall’s
conviction for illegally catching and selling eels. The Court ruled that Aboriginal people
in the Maritimes who were descendants of signatories to a 1760 Treaty with the British
may harvest fish and wildlife for “a moderate livelihood for such basics as food, clothing,
housing and a few amenities,” but not for unrestricted commercial purposes.
Given the importance of marine resources to coastal First Nations, it is not surprising that
marine resource issues are being addressed in ongoing and recently concluded modern
treaties in BC. For example, the recent Tsawwassen and Maa-nulth treaties include
provisions that deal with consultation on the establishment of MPAs and the exercise of
First Nations harvesting rights in MPAs.41
3.1.5 Determination of whether an infringement is justified
The Supreme Court of Canada has interpreted section 35(1) of the Constitution Act, 1982
to mean that although constitutional protection of Aboriginal right is not absolute,
Aboriginal rights must be protected from unjustified infringement (Hogg 2007). In order
to determine if a potential infringement is justified, the following conditions must be met:
(1) the government must show that it has a compelling and substantial legislative
objective (which can include objectives such as conservation and protection of the
environment and endangered species); and
(2) the government must show that its actions can be justified in light of its fiduciary duty
to the First Nation – to meet this part of the test governments must show that the
honour of the Crown has been upheld by, for example, meaningfully consulting with
the First Nation, avoiding or minimizing any potential infringement of the First
39
Claxton v. Saanichton Marina Ltd., [1989] 3 CNLR 46 (BCCA).
R. v. Marshall, [1999] 3 SCR 456.
41
See Tsawwassen First Nation Final Agreement: sections 99-101 of Chapter 9 – Fisheries and Chapter 12
- National Parks and National Marine Conservation Areas; and Maa-nulth First Nations Final Agreement:
section 10.4.8 of Chapter 10 – Fisheries, Chapter 23 – Federal Parks and Protected Areas and Chapter 24 –
Provincial Protected Areas (2006).
40
18
First Nations and MPAs on Canada’s Pacific Coast
Nation’s rights, accommodating the interests of the First Nation and compensating the
First Nation for any infringement.
The application of the test is illustrated in the Supreme Court of Canada’s 1996 Adams
decision42. In that case, the Court determined that federal Quebec Fisheries Regulations
that promoted sports fishing did not qualify as a compelling and substantial objective.
Furthermore, the legislative scheme was not a valid limitation on the Aboriginal right to
fish, as it did not recognize the priority of Aboriginal food fishing.
Since Sparrow, the Supreme Court of Canada has repeatedly reconfirmed that where
rights may be infringed, governments must, at a minimum, always consult with First
Nations and “in most cases, the duty will be significantly deeper than mere
consultation.”43 This is an important backdrop to the seemingly perpetual back and forth
between governments and First Nations as to what constitutes adequate consultation. The
requirement for meaningful consultation is explored further in section 3.2.
Where a potential activity might infringe on Aboriginal title in particular (as opposed to
other Aboriginal rights), the courts also have to take into account the “inescapable
economic component” of Aboriginal title. In such a case, the courts will take particular
note of whether any compensation has been offered to the First Nation. The amount of
compensation payable would depend on the nature and severity of the infringement and
the extent to which Aboriginal interests have been accommodated.44
The conservation justification for infringing on established Aboriginal rights comes into
play if the government has demonstrated the need to address conservation as a
compelling and substantial legislative objective (Boyd 2000). For example, if
governments can show that a particular species or population has been proven to need full
protection to meet the conservation objective, then protection of that species would have
priority over rights and title (R. Jones 2007). It is the government’s obligation, if
challenged, to provide the evidence supporting the conservation concern (Boyd 2000).
In a number of cases,45 the Supreme Court of Canada has confirmed that the justification
test first set out in Sparrow applies to treaty rights. Therefore, treaty rights are similarly
not absolute and subject to infringement where government can meet the “justification
test.” While this issue has never been tested in the courts, it is anticipated that courts may
require governments to meet a more stringent standard of justification in the case of
treaty rights than in the case of undefined Aboriginal rights (Hogg 2007).
3.2
Consultation in MPA establishment
The previous section focuses on how Aboriginal rights and title may be proven and the
test governments must meet if they wish to infringe upon these rights. In such cases, one
of the key elements is to look at whether the government has consulted the First Nation.
This next section discusses how the obligation to consult can arise even in circumstances
where First Nations have not yet proven that they have Aboriginal rights.
42
R. v. Adams, [1996] 3 SCR 101.
Delgamuukw, para. 168.
44
Delgamuukw, para. 169.
45
R. v. Badger, [1996] 1 SCR 771; R. v. Cote, [1996] 3 SCR 139; and R. v. Marshall, [1999] 3 SCR 456.
43
First Nations and MPAs on Canada’s Pacific Coast
19
3.2.1 The Crown’s duty to consult
At its most fundamental level, the Crown’s duty to consult requires two things: a
meaningful, fair process to have discussions and a substantive discussion that
addresses, or accommodates, first Nation concerns (Guirguis-Awadalla et al.
2007).
In 2004, the Supreme Court of Canada was faced with resolving the issue of what to do
when a First Nation – in this case, the Haida Nation – is able to put forward a strong
prima facie case that it has Aboriginal rights and title, but it has not yet gone through the
lengthy and expensive process of proving these rights. As the court put it, “how are the
interests under discussion [in treaty negotiations] to be treated?”46
In response to this, the Court in Haida summarized its conclusions as follows:
The government's duty to consult with Aboriginal peoples and accommodate
their interests is grounded in the principle of the honour of the Crown… [T]he
Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal
interests where claims affecting these interests are being seriously pursued in the
process of treaty negotiation and proof. The duty to consult and accommodate is
part of a process of fair dealing and reconciliation that begins with the assertion
of sovereignty and continues beyond formal claims resolution… Consultation
and accommodation before final claims resolution preserve the Aboriginal
interest and are an essential corollary to the honourable process of reconciliation
that s. 35 of the Constitution Act, 1982, demands.
The scope of the duty is proportionate to a preliminary assessment of the strength
of the case supporting the existence of the right or title, and to the seriousness of
the potentially adverse effect upon the right or title claimed. The Crown is not
under a duty to reach an agreement; rather, the commitment is to a meaningful
process of consultation in good faith. The content of the duty varies with the
circumstances and each case must be approached individually and flexibly. The
controlling question in all situations is what is required to maintain the honour of
the Crown and to effect reconciliation between the Crown and the Aboriginal
people with respect to the interests at stake. The effect of good faith consultation
may be to reveal a duty to accommodate. Where accommodation is required in
making decisions that may adversely affect as yet unproven Aboriginal rights and
title claims, the Crown must balance Aboriginal concerns reasonably with the
potential impact of the decision on the asserted right or title and with other
societal interests.
The process established by the Haida case enables First Nations to advance their interests
without having to go through the process of proving rights and title.
The courts have confirmed that the historic relationship of the Crown to First Nations is a
key underpinning of the Crown’s fiduciary duty to First Nations. This duty requires that
the Crown act in a manner that upholds the honour of the Crown. The Crown cannot
therefore unilaterally make decisions that impact Aboriginal interests, particularly when
these interests are the subject of treaty negotiations. The duty includes the obligation to
consult and accommodate where Aboriginal rights may be infringed by government
46
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511.
20
First Nations and MPAs on Canada’s Pacific Coast
policies, regulations or land uses. This means that the Crown has a more significant
obligation to consult with First Nations than it does to the public at large or other
communities or stakeholders. The interest of these other parties in being involved differs
from the constitutional right of First Nations to be consulted. The courts have even noted
that in some instances the consent of (rather than simply consultation with) a First Nation
would be required, “particularly when provinces enact hunting and fishing regulations in
relation to Aboriginal lands.” 47
The two main variables that determine the extent of consultation and accommodation are
the strength of the First Nation’s claim and the severity of the impact on First Nations
rights.
The Crown is required to behave honourably in consultations with First Nations by
meeting its obligations to:
•
•
•
Deal with all First Nations fairly and in good faith.
Provide notice to First Nations about decisions that could impact their rights.
Consult with First Nations with the goal of reconciliation between the Crown and First
Nations with respect to the interests at stake.
It is important to note in this context that the process of consultation and accommodation
is a two-way street, in the sense that First Nations are also required to conduct themselves
reasonably and in good faith in the process.
3.2.2 Negative experience with consultations on coastal protected areas
Many coastal First Nations have had negative experiences with protected areas over past
decades, resulting in significant frustration directed at parks, protected areas, and now
MPAs. The main flaw has been a lack of consultation with First Nations and a failure to
involve them sufficiently or early enough in the process to establish and manage
protected areas. In some cases there was some consultation, but First Nations did not
view it as meaningful. (In several cases the errors have been largely rectified.) Examples
of past negative experiences include:
•
•
•
•
•
•
47
establishment of a provincial park in Indian Arm without consultation of the Tsleil-Waututh
Nation, which took BC Parks to court as a result (Interview #7);
lack of assessments of how some of the initial DFO pilot MPA proposals would affect First
Nations activities, despite requests from some First Nations that such assessments be carried
out (Interview #13);
protected areas imposed on Nuu-chah-nulth nations such as the Hesquiat without consultation
(Interview #10);
insufficient consultation with the Snuneymuxw First Nation on Gabriola Passage (Interview
#13, Jones 1999);
underestimation by DFO of the diversity of interests of the various First Nations regarding
the Race Rocks proposed pilot MPA and omission of some from the consultations (Interview
#2);
failure to account adequately for First Nations concerns on the establishment of Robson Bight
ecological reserve (Jones 1999);
Delgamuukw, para 168.
First Nations and MPAs on Canada’s Pacific Coast
21
•
•
lack of consultation with the Heiltsuk on the establishment of Hakai Recreation Area by the
province in 1987 (Hamilton and Wilson, n.d.); and
Parks Canada’s resistance to acknowledging the Hupacasath’s interest in the Pacific Rim
National Park Reserve (Interview #12).
Many of the concerns described above have since been addressed. For instance,
collaboration agreements have been reached between First Nations including the TsleilWaututh and the Heiltsuk with the province regarding protected areas in their territories.
Section 5.2.3 relates more recent, positive experiences in connection with several of the
above cases.
3.2.3 Issues in consultation relevant to MPAs
Some of the challenges facing First Nations in consultation processes with federal and
provincial governments include inter-agency or federal-provincial jurisdictional disputes,
complexities that arise when several First Nations have interests and rights in the area of
a proposed MPA, capacity issues, and negative experiences related to protected areas (as
discussed above) coupled with an overarching lack of trust in the relationship between
First Nations and the government. Some of these issues also pose challenges to
interactions between marine stakeholders and First Nations, though it must be kept in
mind that the responsibility for consultation in the context of rights and title lays with the
Crown, and not with industry or ENGOs.
Inter-agency or federal-provincial jurisdictional disputes
Some First Nations are concerned about entering into bilateral agreements with the
province that do not include the federal government as they see their primary relationship
as being with the federal Crown, rather than the provincial Crown. This means there is
sometimes a preference for tri-partite agreements, which can take longer to negotiate and
may become embroiled in federal-provincial jurisdictional disputes. As well, First
Nations resent being excluded from jurisdictional debates between the federal and
provincial governments (e.g. over seabed ownership) or between federal departments –
e.g. as Parks Canada and DFO seek to resolve management authority over fisheries in
areas such as the Pacific Rim National Park Reserve (Interview #10, Interview #2).
Complexity of multiple First Nations
It is difficult for MPA agencies to understand the shared or disputed territories among
First Nations and to take into account their different approaches to advancing their
interests. The latter can range from treaty provisions setting out rights to harvest at
specific beaches, through to strategic plans, to expression of interests in relation to
foreshore leasing, licensing etc. First Nations with less capacity may have strong interests
but few resources or tools (such as strategic plans or the capacity to engage in
consultation) for advancing their interests in a way that results in successful
accommodation (Interview #2).
In some parts of the BC coast, the presence of multiple First Nations with interests in a
potential protected area significantly complicates the consultation process. In some
northern areas, such as the proposed NMCA around Gwaii Haanas, there are fewer First
Nation governments/organizations involved than in the southern areas. The collective
22
First Nations and MPAs on Canada’s Pacific Coast
approach taken by the Council of the Haida Nation has smoothed the consultation process
there (Interview #3). In contrast, Parks Canada is facing significant challenges in the Gulf
Islands area where it must reach agreement with 19 nations, some of which have
conflicting interests, in the area of the proposed Southern Strait of Georgia NMCA
(Interview #14). Committees have been established with individual First Nations or
groups that include 11 of the 19. In the Gulf Islands National Park Reserve, the
Hul’qumi’num Treaty Group has an agreement with Parks Canada, and the Sencot’en
C'A,I,Newel (Sencot’en Alliance) also recently reached an agreement with the agency.
Certain provisions in the recent Tsawwassen First Nation Final Agreement indicate that
they too will have a say in the park reserve.48
A further challenge is determining who the rightful holder of Aboriginal rights and title to
a particular area may be. This issue has not to date been conclusively determined by the
courts. In some cases, the proper rights holder may be an individual First Nation. In
others, the rights holder may be a larger tribal grouping. Those wishing to communicate
with First Nations can best address this issue by asking representatives of the First
Nations themselves who they believe holds the rights and title to a particular area.
Capacity issues
There is a severe shortage of time and resources (including personnel/staff) in First
Nations for consulting with all those interested in their territory, and this constrains their
ability to respond to overtures from MPA advocates. Leaders and staff who have the
relevant responsibilities to engage often can barely keep up with their everyday tasks
associated with their myriad responsibilities. It is expensive for individuals from isolated
communities to travel to urban centres for meetings, but even if MPA advocates go
directly to the community, people’s available time is limited. Community members are
tired of talking to everyone who is interested in their community – “some throw their
hands up and stay home – they could be out five nights a week if they took up all the
invitations” (Interview #6). This lack of capacity to fully engage exacerbates
misunderstandings regarding the purposes and implications of MPA designations in First
Nation communities.
MPA proponents may wish to support a First Nation’s participation in a consultation
process by providing them with resources or supporting a First Nation’s request to
government for funding assistance. However, it is important that funding to support
consultation not be tied to a particular outcome or it will defeat the very purpose of the
consultation process. For example, it would not be appropriate to fund a First Nation’s
participation in a consultation process only on condition that it agree in advance to
support the establishment of a particular MPA.
Legacy of mistrust
A number of factors underlie First Nations mistrust towards government and further add
to the challenges of engaging First Nations in initiatives around protected areas. These
include the loss of access to food from the sea and a history of being excluded from
decision-making in their territories. In addition, the broader impacts of colonialism,
including residential schools and the dispossession of their resources and culture,
48
See Tsawwassen Final Agreement: section 99-101 of chapter 9 – Fisheries and section 33 of chapter 12 –
National Parks and National Marine Conservation Areas.
First Nations and MPAs on Canada’s Pacific Coast
23
continue to impact on the relationship between First Nations and government. The early
decimation of First Nation populations through small pox introduced by Europeans
provides a tragic backdrop. It is therefore understandable that coastal First Nations
sometimes demonstrate resentment and a defensive attitude towards those claiming to
have an interest in protecting the ocean environment (Interview #10, Interview #16,
Speaker #5). This means that any government agenda, including MPA establishment,
may be met with hostility.
Agencies like Parks Canada and Environment Canada have a possible advantage over
DFO in rebuilding trust in connection with ocean management, as their history of
interaction with First Nations on the coast is shorter and their role is more focused on
conservation, whereas DFO is often blamed for loss of access to fisheries. Yet every
government entity has to approach their involvement with First Nations from their unique
perspective. As individual public servants invest in relationships it builds bridges for
those who follow (Interview #8).
While First Nations mistrust is primarily directed at DFO and other government
departments and agencies, this atmosphere of suspicion also has implications for
relationships with ENGOs. Awareness of the heritage of disrespect and the losses
suffered by First Nations is required for moving ahead to build understanding and trust.
Furthermore, ENGOs must be scrupulous in approaching and interacting with First
Nations from a place of integrity and transparency. Trust is quickly lost if ENGOs
exaggerate or misconstrue the results of their communications with First Nations when
reporting to other parties.
3.2.4 Achieving meaningful consultation in connection with MPAs
Any process related to MPAs must include any First Nations that have Aboriginal rights,
such as Aboriginal title or a right to harvest, that might be impacted by the decision to
establish an MPA. A First Nation need not have conclusively proven its rights in order
for consultation to be triggered, so it is critical that any First Nation that has a fairly clear
connection to an area be given the opportunity to be included in the process. It is
important to keep in mind that First Nations interests are not just limited to harvesting,
but also extend to decision-making around management issues, including the decision on
whether an area should be designated as an MPA.
Consultation must start at the outset of any process related to a protected area (Interview
#19), and continue through planning to implementation and evaluation (Speaker #3).
Bringing First Nations into the planning process at the earliest possible stage helps ensure
meaningful consultation and makes it easier to conclude an agreement (Speaker #7). In
the case of Gwaii Haanas, the Haida have been involved in the MPA proposal from the
beginning, and as a result leaders have confidence that the MPA will have fewer failings
(Interview #9). First Nations should also be consulted at the conceptual stage, when
policies and legislation are developed that define the range of possibilities in MPAs. (See
also section 5.4.1.)
Consultation is not an afterthought. First Nations have to be at the forefront of
everything that is happening, with shared responsibility. Governments often
24
First Nations and MPAs on Canada’s Pacific Coast
create draft plans and policies that are not really open to change. [Our nation]
will protect our rights even if it means going to court (Speaker #3).
Ways of improving consultation and ensuring it is meaningful are listed in Box 2.
Box 2: Ways of ensuring consultation of First Nations on Protected Areas is meaningful
•
•
•
•
•
•
•
•
Begin consultation at the earliest possible stage.
Where the appropriate First Nations have not been involved in MPA design from the very
beginning, there should be a process to re-negotiate MPA arrangements (Smyth 2005).
Make financial resources available to First Nations to meaningfully participate in negotiation,
planning and implementation of MPAs (BCAFC 1999).
Be willing to compromise and be patient in working through multiple drafts of agreements
together (Interview #6).
Develop consultation agreements suited to individual First Nations but which adopt best
practices from elsewhere. An MOU could delineate the role of the First Nation role in terms
of how the government will consult with them during the feasibility stage and after
designation (Interview #5).
Employ First Nations liaison officers at protected areas, as was done at Pacific Rim National
Park Reserve.
Consult with the intention to address issues that affect the First Nations concerned (Speaker
#3) – e.g. explore potential impacts on First Nations activities in feasibility studies (Interview
#13).
Develop the agreement through a joint drafting process: “What worked well is the Provincial
government was willing to compromise on the … agreement. We were being taken seriously
so we were co-authors of the agreement – that was significant” (Interview #20).
One mechanism designed to facilitate DFO consultations with coastal First Nations on
geographically-defined areas of the Canadian coasts is the Aboriginal Aquatic Resources
and Ocean Management (AAROM) program (Fisheries and Oceans Canada 2008).49
AAROM bodies are designed to organize several First Nations into larger groups making
it more efficient for them to engage with DFO at a strategic level. These could provide a
logical point of contact for MPA negotiations but so far they tend to be tapped mainly for
fisheries management consultation purposes.
Beyond consultation lies collaborative management, which is explored in section 5.2.
Proactive policies looking towards collaborative management could provide incentives
for First Nations to participate in MPA planning (BCAFC 1999).
3.3
General implications of rights and title for MPAs
3.3.1 Potential threat to rights and title posed by MPAs
Issues related to First Nations harvesting rights in protected areas are likely the thorniest
matter in the relation between First Nations and MPAs (see also section 4.1.1). Some
First Nations view no-take zones, in and of themselves, as an automatic infringement on
Aboriginal rights (Speaker #13, Interview #13). Furthermore, if First Nations are not
49
See also section 6.3.5.
First Nations and MPAs on Canada’s Pacific Coast
25
consulted on the decision to prohibit harvesting in an MPA, the courts are likely to strike
it down (Speaker #7). Thus, recognizing First Nations rights in fisheries management
within MPAs is essential. A First Nation that is engaged in jointly managing an MPA will
be far more willing to agree to a no-take zone or limits on their harvest within an MPA
than a First Nation that has had these limitations imposed on it unilaterally.
3.3.2 Impact of MPAs on treaty negotiations
MPAs that have not been established as “reserves” (explained below) or with respect to
which there is not an agreement with a First Nation are viewed by First Nations as
negatively impacting on their treaty negotiations because of their potential to reduce the
land base and marine area that is recognized by Canada and BC as within the scope of
negotiations (Interview #4, Interview #19, Interview #11). Once a land or marine area has
been designated as protected, it can be difficult for First Nations to negotiate a
recognition of their ownership of the area. If the First Nation wants to change the status
of land from “protected” to “open to development,” it is likely to face even more
challenges. In the words of Francis Frank, then President of the Nuu-chah-nulth Tribal
Council,
One thing we want to ensure is that the work we do is without prejudice. We
need to be aware that the designations we attach to the Big Eddy will not be used
by the government to constrain treaty negotiations … you must consider what
implications treaty brings (Frank in Gardner 2007).
While protected areas are not “off the table” in treaty negotiations in the same way as fee
simple lands owned by third parties are, it is not easy to include protected areas in treaties
(Interview #19, Hamilton and Wilson, n.d.). The process for selecting lands from within
protected areas is more stringent than for other crown lands, and it is difficult to withdraw
lands from protected areas. For example, the Kyuquot/Checleseht were assured that the
existence of protected areas would not impact treaty negotiations, yet addressing issues
specifically related to protected areas within their traditional territories increased the cost
of concluding their treaty negotiations in terms of both time and energy (Interview #6). If
lands are removed from a protected area, but continue to border on the remaining
protected area, there tends to be much discussion of “compatible uses” (i.e. restrictions on
how the First Nation may use these lands) in order to reduce possible impacts on the
protected area (Interview #6). Similar issues are likely to arise in the marine setting,
although current federal and provincial negotiating mandates generally exclude First
Nations ownership of submerged land from treaty negotiations.
A further complication is that the language of the Canada National Marine Conservation
Areas Act (CNMCAA) requires that the federal Crown have “clear title to or an
unencumbered right of ownership in the lands to be included in the marine conservation
area” (s. 5 (2)).50 Many First Nations would see this requirement as undermining their
opportunity to negotiate recognition of Aboriginal title or some form of shared title to the
area. While the CNMCAA provides for the establishment of an NMCA “reserve” where
an area “is subject to a claim in respect of Aboriginal rights that has been accepted for
negotiation by the Government of Canada,” it is not clear how such an area might remain
50
Similar language is found in the Canada National Parks Act s. 5 (1a)
26
First Nations and MPAs on Canada’s Pacific Coast
an NMCA under the CNMCAA at the conclusion of treaty negotiations unless the First
Nation was prepared to concede that the federal Crown will have “unencumbered title” to
the area.51 Otherwise, if the First Nation were successful in obtaining title to the area
through treaty negotiations, it would no longer be eligible to remain a marine
conservation area unless the framework of the statute was amended.
As well, the governments’ treaty negotiation approach tends to fragment First Nations
expression of their ocean interests, with the foreshore typically being addressed in a land
chapter of treaty, offshore in a fisheries chapter, and possibly some attention to the
seabed in an oil and gas chapter (Interview #2). Some First Nations are dealing with
protected areas in yet another chapter. This fragmentation can undermine the First
Nation’s ability to advance its interests in marine areas in a holistic manner.
For these reasons, many First Nations may oppose the establishment of MPAs in their
territories prior to the conclusion of their treaty negotiations, as MPAs are likely to both
complicate their negotiations and limit their options at the treaty table.
3.3.3 Respecting rights and title in MPAs
Meaningful consultation with First Nations regarding MPA initiatives in their traditional
territories is a clear requirement for respecting Aboriginal rights and title. Other related
options for respecting Aboriginal rights and title in the establishment of protected areas,
including MPAs, are listed in Box 3.
Box 3: Ways of respecting Aboriginal rights and title in the establishment of protected areas
•
•
•
•
•
•
•
Ensure a traditional use study is completed for each candidate MPA prior to designation.
Link the MPA agenda to the treaty agenda, to demonstrate respect for First Nations rights and
long-term interests (Jones 1999, Speaker #8). For example, in MPA proposals, accommodate
the types of claims First Nations have expressed.
Negotiate interim agreements to protect First Nations interests in advance of concluding
treaties – that is, MPAs would be interim agreements as part of the treaty process (Jones
1999, BCAFC 1999). This means that the interim MPA arrangement would be replaced by
whatever is agreed to by the parties once a treaty is concluded.
Do not proceed with MPA projects without the consent of affected First Nations (BCAFC
1999). (DFO followed this option, in effect, by dropping some of the original MPA pilot
projects, e.g. Gabriola Passage (Interview #11)).
State in the agreement for the protected area that rights and title are recognized. (The Hakai
Luxvblais agreement is one of the few where this is the case (Interview #20)).
Ensure that in any agreement entered into with a particular First Nation, obligations to other
First Nations asserting right and title are also clearly stated by the province/federal
government (Interview #20).
Designate an MPA as a reserve, subject to (“without prejudice” to) treaty negotiations, at the
request of affected First Nations.
An approach that is tailored to recognizing First Nations legal interest in a proposed MPA
is to designate the area as a National Marine Conservation Area Reserve under the
51
The utility of NMCA Reserve designation is discussed in section 3.3.3.
First Nations and MPAs on Canada’s Pacific Coast
27
CNMCAA (similar to a “park reserve” under the Canada National Parks Act). The
emphasis on the “Reserve” designation helps make it clear that the land and sea area is
still “on the table” in treaty negotiations and the public is put on notice regarding the First
Nation’s interest in the area and the possibility that the long-term ownership,
management and/or stewardship of the MPA may be transferred to the First Nation
through treaty negotiations (Speaker #8). Section 4(2) of the CNMCAA makes “reserve”
status automatic: “Reserves are established … where an area or a portion of an area
proposed for a marine conservation area is subject to a claim in respect of Aboriginal
rights that has been accepted for negotiation by the Government of Canada.” Section 6(2)
states that “When the claim is settled, the Governor General may, by Order in Council,
remove the reserve from Schedule 2 of the Act, or add the name to the NMCAs in
Schedule 1, including possible alteration of the description of the area.” The legislation is
purposefully designed to be accommodating, and it has a lot of latitude (Interview #14).
Another – subtler – way of respecting rights and title is to set aside rights and title
debates and treaty negotiations and enter into cooperative agreements on a policy basis
(Interview #14, Interview #5). These agreements do not define rights and title, but neither
do they infringe upon them. Agencies such as Parks Canada or DFO can do this at the
regional level, and may even be obliged to, if the mandate for dealing with rights and title
rests at the headquarters level in Ottawa or with another agency such as the Department
of Justice. An example is the Southern Strait of Georgia in the uncertain context of the
Douglas treaties, where Parks Canada acknowledges that the treaties exist in its work
with the Sencot'en C'A,I,Newel,52 but moves on to ask, “What can we do together that
meets your interests and the park’s?” (Interview #16)
The Gwaii Haanas National Park Reserve agreement (Government of Canada and
Council of the Haida Nation 1993) set the standard for “agreeing to disagree” – yet
another way of avoiding possible infringement on rights and title in the establishment of a
protected area. On the first page of the agreement there are two parallel columns setting
out the Haida’s view and the federal government’s view respectively. Following is an
excerpt.
The parties maintain viewpoints regarding the Archipelago that converge with
respect to objectives concerning the care, protection and enjoyment of the
Archipelago…and diverge with respect to sovereignty, title or ownership as
follows:
The Haida Nation sees the Archipelago as
Haida Lands, subject to the collective and
individual rights of the Haida citizens, the
sovereignty of the Hereditary Chiefs, and
jurisdiction of the Council of the Haida
Nation. The Haida Nation owns these
lands and waters by virtue of heredity,
subject to the laws of the Constitution of
the Haida Nation and the legislative
jurisdiction of the Haida House of
Assembly. …
52
The Government of Canada
views the Archipelago as
Crown land subject to certain
private rights or interests, and
subject to the sovereignty of her
Majesty the Queen and the
legislative jurisdiction of the
Parliament of Canada and
Legislature of the province of
British Columbia. …
C'A,I,Newel essentially means “alliance.”
28
First Nations and MPAs on Canada’s Pacific Coast
The Gwaii Haanas arrangement essentially sets the stage for shared authority, which goes
beyond consultation, providing for ongoing attention to First Nations concerns and
interests. Themes related to shared authority, including collaborative management of
protected areas, are explored in section 5.2.
Over time, treaty settlements and court decisions will clarify the extent of First Nations
rights and title in MPAs. The Federal Parks and Protected Areas chapter of the 2006
Maa-nulth First Nations Final Agreement (section 23.6.4), for example, states that
“harvesting under a Maa-nulth First Nation Renewable Resource Harvesting Right will
be in accordance with the applicable Maa-nulth Permit and the management plan for the
applicable National Park or National Marine Conservation Area.”53 Similarly, section 1
of Chapter 12 of the Tsawwassen Final Agreement states that “the Tsawwassen First
Nation has the right to harvest Renewable Resources for Domestic Purposes” in National
Parks and National Marine Conservation Areas that are wholly or partly within
Tsawwassen Territory.54 As other treaties are concluded, some of the current uncertainty
about the location and extent of First Nations rights within MPAs will be resolved.
However, unless the current pace of treaty negotiations is accelerated, undefined
Aboriginal rights, rather than treaty rights, will be the major First Nations interest at stake
for some time to come in coastal BC.
53
54
Maa-nulth First Nations Final Agreement 2006.
Tsawwassen First Nation Final Agreement 2006.
First Nations and MPAs on Canada’s Pacific Coast
29
4
RISKS AND OPPORTUNITIES IN MPAS FOR FIRST
NATIONS
While fishery enhancement is often regarded as a key role of MPAs, it is not their only
potential benefit. Others include: protecting biodiversity, study sites for research,
ecotourism areas that can generate economic benefits, local employment in management,
protection of habitat from destructive fishing methods, protection of habitat from other
harmful human activities such as coastal development, etc. Benefits go beyond
economically valuable species, to birds, plants, invertebrates and marine mammals that
need protection regardless of the income they might generate. Most of these general MPA
benefits offer opportunities for First Nations on Canada’s west coast. But along with
opportunities come risks. The potential for impacts on access to resources and exclusion
from management are likely the most significant concerns of First Nations regarding
protected areas.55
Ayers provides a snapshot of what is required for the Hul’qumi’num to hold a favorable
view of MPAs:
In order for MPAs to be a mechanism to address the Hul’qumi’num principle of
‘maintaining all native species,’ Hul’qumi’num feel they must be involved in
planning and implementing these areas, must see the benefits locally, and must
relate through their first hand experiences and TEK to how these measures can
help maintain all native species (Ayers 2005 p.68).
The risks that need to be minimized and the opportunities that need to be realized for
MPAs to increase their appeal to First Nations are explored here.
4.1
Fisheries
4.1.1 The threat of loss of First Nations access to marine resources in MPAs
Negative connotation of MPA
As mentioned in section 2.4, MPAs imply to First Nations the elimination of harvesting.
The term connotes a rigid approach to conservation including “no catch,” “locking out,”
“closures,” “alienation,” and “no FSC harvesting” (Interview #4, Interview #7, Interview
#14). For example, many First Nations people perceive that Rockfish Conservation Areas
(RCAs) are limiting their harvest opportunities (Interview #10) despite the fact that the
RCAs are directed to restrictions on commercial fisheries. Given the nature of a First
Nation’s relationship with the ocean, as explored in section 2, the idea that a community
would be unable to use an area means being cut off from something fundamental to who
they are (Interview #1B).
55
The potential for loss of management authority is possibly at a level of concern equal to loss of resource
access. This concern, together with ways of increasing First Nations authority, is addressed in section 5.2.
30
First Nations and MPAs on Canada’s Pacific Coast
Low tolerance of increased restrictions
First Nations have a low tolerance for increased restrictions on their existing or possible
future access to marine harvesting areas for a number of more specific reasons:
MPAs add to the existing suite of regulatory restrictions.
Already First Nations are beleaguered by fishing regulations and licensing provisions.
Reduction in First Nations ability to participate in commercial fishing (because
commercial licences and fish stocks have dwindled) means that food fishing is also
constrained, as the commercial boats that were used for both types of fisheries are
sold or “tied up at the dock.” Adding MPAs to the array of restrictions is seen to
make the burden even heavier.
First Nations need more, not less access to marine resources.
A US study reached a conclusion that also applies in BC: “indigenous peoples are
worried because declines in marine resources threaten their traditional cultures and
practices, as well as current livelihoods, and they are worried about MPAs for exactly
the same reasons” (NOAA Coastal Services Center 2002). Population growth in First
Nation communities further exacerbates this concern over sufficiency of marine
resources. A survey of Hul’qumi’num members identified constraints imposed by
government as the primary barrier to harvesting in their communities (Fediuk and
Thom 2003).
Further limitations on access appear to be inequitable.
First Nations are not responsible for the degradation of the marine environment so it
seems unfair that they should have to make compromises to help it recover. Equity
concerns draw attention to who is displaced by a conservation measure (who bears
the burden of it) in relation to where benefits are distributed (Speaker #12, Interview
#1B). The high level of dependency on marine resources characteristic of First
Nations in coastal communities means that they bear a disproportionate burden of
restrictions on access to such resources (although this might be counterbalanced by
benefits accruing to local communities from MPAs).
The importance of maintaining First Nations’ access to harvesting ocean resources has
been expressed in various terms:
•
•
•
•
•
•
“We catch – that’s our Aboriginal right – we have to” (Interview #7).
“We are adamant that harvest [by our members] still takes place in MPAs” (Interview #10).
“The development of parks should not infringe upon our culture, values, beliefs, or traditional
territory where we harvest our seafood – what we have left” (Jacks 2001).
“If there's a concern that they'll [Haida people] be locked out, maybe not now but later on
through what they [Parks Canada] consider a justifiable infringement, we would be there to
fight that. I don't think that's a healthy climate for establishing marine protected areas”
(Guujaaw 2001).
“If you’re planning to put it over a traditional fishing hole that’s a non-starter” (Interview
#19).
“The uses that [our people] would require for their interests to be met in an area set aside for
marine conservation would be, at minimum, food, social and ceremonial harvesting
(exclusive, if the resource needs protection from commercial and sport fishing pressure), and
First Nations and MPAs on Canada’s Pacific Coast
31
fishing of traditional species for sale (trade and barter) beyond the community, as recognized
by court decisions” (Interview #20).
Past experience of restrictions on activities in protected areas
A logical expectation based on the above comments is that, as long as there are
provisions for ongoing access to resources on a sustainable basis, First Nations might
support MPAs (Interview #12). But what are the grounds for such provisions based in
past experience and current policy? First Nations harvesting activities have been
displaced by industry and terrestrial parks, and now MPAs come across as a cause of
further displacement (Interview #18).
I dig clams in parks and I’m [told that I’m] trespassing. We get our medicine
from the sea. Now it’s against the law for me to get sea urchin for my brother
(Speaker #10).
Following are some examples of how First Nations people feel their activities are, or
have been restricted in protected areas:
The Gulf Islands National Park Reserve (GINPR) includes 200 meters of foreshore and water
adjacent to components of the Park Reserve. This allows Parks Canada to restrict access to
entire islands56 (Interview #2).
The Heiltsuk’s opportunity to harvest kelp was interfered with in the Hakai Recreation Area
(Speaker #3). (The area was de-listed as a recreation area in March 2001 and a collaborative
agreement supporting its designation as the Hakai Luxvbalis Conservancy has been reached.)
The Hupacasath community has through treaty negotiations sought recognition of a valueadded fishery in front of its reserve and enhancement of littleneck clam populations for
community use. This is in the area of Pacific Rim National Park Reserve. Parks Canada has
said any form of aquaculture is not consistent with Parks policy (Interview #12).
The Nuchatlaht marine park area has small exemptions for shellfish tenures grandfathered in
but there are still restrictions on Nuu-chah-nulth harvest opportunities (Interview #10).
Harvesting in the Kitlope park was restricted, in part because enforcement appeared to
confuse food fishing with commercial guiding (Interview #1).
In the 1970s the Checklesaht worked with ENGOs and successfully achieved protected area
objectives in terrestrial designations but then were shocked to find out their activities were
restricted. For example, income from mushroom harvest and sales was cut off, so there are
concerns that MPAs would interfere with harvest for sale of oysters and clams (Interview #6).
In terrestrial parks, recreation has been seen to take precedence over First Nations use –
“Over the years the Crown has managed parks with the attitude: ‘everybody out – it’s for
tourists now’” (Interview #9).
•
•
•
•
•
•
•
According to Parks Canada’s NMCA Policy, traditional hunting, fishing and other
marine-resource based activities by entitled First Nations will continue (Parks Canada
1994, Policy s. 1.5.2): “Fishermen are concerned that NMCAs will lock them out, but
that isn’t the case. It may be a different kind of fishing and the different zones will have
different management prescriptions” (Interview #14). Thus, in the GINPR, traditional
activities would be incorporated into a management model with some guarantee of
protection and some degree of shared management (Interview #14). However, this policy
56
This is not to say that First Nations are technically denied access.
32
First Nations and MPAs on Canada’s Pacific Coast
does not mean that First Nation harvesting in NMCAs will necessarily continue unabated.
Constraints that can be expected to apply in some instances include:
•
•
•
•
•
First Nation access to harvest in NMCAs relies on interpretation of harvesting rights by
agencies other than those with protected area mandates – e.g., DFO and Environment Canada.
First Nations generally are prohibited from harvesting in NMCAs for sales purposes.
Public safety provisions could lead to harvesting constraints.
Proof of First Nation “entitlement” or rights might be difficult.
Conservation concerns, such as protection of species listed under the Species at Risk Act, take
priority over harvesting of any sort.
The latter type of constraint is familiar in the fisheries management context as First
Nation rights to harvest for FSC uses come second only to conservation (i.e., First Nation
harvesting may continue when commercial and sport/recreational fisheries are closed).57
In the protected area context, this is likely to apply in many circumstances due to the
conservation orientation of protected areas. Accordingly, First Nations are intent on
ensuring that they can harvest for FSC even in an area that is closed to resource
extraction unless there are conservation concerns. A complex issue is how conservation
needs are proven and who bears the burden of proof. Some forecast that, based on
experience (but contrary to the justification test established by the courts58), the First
Nation will have to prove FSC harvesting can continue in an MPA. If this is what
transpires, First Nations are unlikely to have the capacity to prove the sustainability of
FSC harvesting – they do not often have the technical capacity to determine if there is a
harvestable surplus. DFO does not do the required, detailed stock assessment either – “So
people believe they will be locked out because there isn’t funding or engagement to show
how they could harvest and they fear they’ll be taken to court for fishing” (Interview #2).
For example, Heiltsuk Chiefs and elders were apprehensive about a potential MPA
designation (at Hakai Luxvblais) because they expected closures and doubted whether the
data to back up such measures would be reliable (Interview #20). Furthermore, some feel
“it’s not respectful to make the First Nation prove that the resource can bear FSC
pressure” (Interview #1).
Even if FSC fishing is permitted in an MPA, constraints on marine resource harvesting
for sales purposes can have serious implications for FSC because food fishing and
commercial fishing are often inextricably linked. The ability to act on FSC rights in
connection with many species is largely determined by the availability of commercial
fishing boats that allow travel and harvest throughout the First Nation’s marine
territories. So when reduction in commercial activity leads to loss of boats (as there is no
longer the income to support ownership and maintenance) the capacity to harvest for FSC
is seriously diminished.
4.1.2 First Nations perceptions of MPAs as a fisheries management tool
Many First Nations share an interest in commercial fishing and would not want those
opportunities curtailed by MPAs (Interview #11). At the same time, First Nations have a
57
58
See section 3.1.5.
See section 3.1.1
First Nations and MPAs on Canada’s Pacific Coast
33
strong interest in arresting species depletion that they connect with over-fishing, and
many believe that overharvesting has affected First Nations to the core (Interview #6).
Positive views on the potential of MPAs to support sustainable fisheries are related in
section 5.3.3, and some ways that MPAs may counteract the impacts of over-fishing to
serve First Nations interests are listed in Box 4. It should be kept in mind, however, that
many First Nations people are not convinced of the effectiveness, and/or the relevance of
MPAs in protecting stocks of concern. For example, in connection with the Race Rocks
pilot MPA proposal, First Nations expressed the view that salmon, halibut, groundfish
and herring would not be protected by the MPA.
Box 4: Ways MPAs may counteract the impacts of over-fishing to serve First Nations
interests
•
•
•
•
•
•
MPAs could buffer the effects of resource extraction prior to treaty settlements, protecting
harvesting opportunities for post-treaty use by First Nations.
MPAs could curtail un-sustainable commercial harvesting: “We’re very much interested in
anything that might help curtail the very extreme fishing going on [around Haida Gwaii]…
Basically, they’ve been fishing every species right to the point that they're no longer
economical” (Guujaaw 2001).
Some First Nations are concerned about rockfish and ling cod and do not believe DFO is
taking adequate measures to protect these species. MPAs could allow these species to recover
over a long period of time without the potential of early selective harvest by a commercial
fishery (Interview #19, Interview #2). The Haida proposed lower targets for the fishing that
will continue in Rockfish Conservation Areas than those set out by DFO (Interview #11).
There is significant concern among some First Nations over tourism lodges that lead to
intense fisheries in remote areas (Interview #1B). MPAs could alleviate this pressure.
First Nations may be encouraged by the potential of improved surveillance of resource use in
MPAs “so we can ensure our resources are not being raped and pillaged, including stopping
black market abalone catch” (Interview #20).
A First Nation may recognize the conservation plight of certain species and see the need for
everyone to cease harvesting. There are examples of the Nuu-chah-nulth instituting their own
form of spatial harvesting constraints – for example areas in which herring are spawning,
seasonal closures for urchins and crabs during reproductive phases, nursery areas for juvenile
fish, and as a short-term response to salmon stock depletion (Interview #10, Nuu-chah-nulth
Tribal Council 1998).
Some First Nations may be genuinely open to the need for MPAs as part of a sound
fisheries management regime, particularly as a means of addressing fisheries
management issues that have not been dealt with through other processes (Interview #8).
Tribes in Washington State look to MPAs as a way of counterbalancing the current
failures of the fisheries management system, which “is passive until there is a lack of
abundance in one species, not taking into account interactions between species” (Speaker
#12).
Several fisheries experts who work for BC First Nations recognize potential fisheries
management benefits of MPAs. They acknowledge that in a modern management regime
MPAs are one tool in the toolbox to maintain a healthy subsistence fishery in perpetuity
that is integral to the culture and wellbeing of communities (Interview #4, Interview #17).
Specifically, they realize that there are advantages to recovery areas that can help re-
34
First Nations and MPAs on Canada’s Pacific Coast
establish fish stocks (e.g. herring) for the food fishery (Interview #10). For example, if
Race Rocks MPA had been established some First Nations would have been interested in
the protection of an eelgrass bed that is a major fish production area for all the First
Nations of the area. They could see benefits in the MPA as a nursery for everything in the
adjacent area (e.g., food source for other animals, FSC enhancement, resource for
recreational fishing business) (Interview #2). In the case of Pacific Rim National Park
Reserve the Hupacasath can now access some foodstuffs in the marine part of the Park
Reserve that are not available elsewhere and the perceived quality of the foodstuffs
within the protected area is better than those adjacent to polluted harbours – the more
pristine the environment the better for species gathered in traditional ways (Interview
#12). One coastal First Nation leader summarized this advantage of MPAs as follows:
Our people would continue to fish in MPAs and commercial opportunities might
even arise but the real fact [benefit of MPAs] is in keeping the ocean alive. The
advantage is that we’re not going to lose our access to the resource through
depletion (Interview #9).
Internationally, “MPAs are widely recognized by many as being important for the
maintenance of traditional uses” (P. Jones 2001). Researchers have described how MPAs
can protect areas for seafood-dependent indigenous cultures to maintain their way of life,
while maintaining both natural and cultural heritage values (P. Jones 2001). In BC it is
widely acknowledged that First Nations have sustenance needs that should be more
clearly addressed and in this connection MPAs are recognized as a potential tool for
protecting areas where culturally important species are abundant – especially resident fish
stocks such as rockfish, lingcod, abalone, red urchin and sea cucumber. This is despite
skeptical views of the effectiveness of MPAs held by some advisors to First Nations who
argue that fish stocks benefits are still not clear (Interview #11, Interview #4).
The most obvious benefit if MPAs actually work is the increase in resource
abundance in and outside the areas. That benefits everyone who lives on the coast
and harvests here (Interview #10).
The potential role of MPAs for providing a fail-safe way of maintaining access to FSC/
traditional fisheries has been acknowledged in various ways.59 Both provincial MPAs
(e.g. Hakai Luxvblais (Interview #20)) and federal MPAs (e.g. NMCAs (Interview #14))
have been recognized as meeting common interests for protection of both biodiversity
and traditional uses. In cases where blanket closures by DFO threaten access to species
such as rockfish or herring roe, MPAs can help First Nations maintain access to fish at
sustainable levels for FSC purposes (Interview #12). In the literal sense of “accessible,”
MPAs can protect stocks for food fisheries in places where they can be harvested without
the large boats, fuel, etc. required for commercial fishing (Interview #4). In this
application of the MPA tool, the FSC harvesting continues in the context of checks and
balances and monitoring as a result of the MPA agency having a management presence
(Interview #12). However, this management presence is to some degree theoretical – an
issue explored further below.
59
See also section 5.1.5.
First Nations and MPAs on Canada’s Pacific Coast
35
4.1.3 Ability of MPAs to meet their potential to provide fisheries benefits
To the extent that they recognize the potential fisheries benefits of MPAs, First Nations
commentators caution that realization of these benefits depends on the strength of
conservation provisions. At least three potential failings have been identified. First, they
observe a lack of enforcement of current fishing regulations. If fishermen do not comply
with the restrictions imposed by an MPA, then the MPA is simply a name with lines on
paper (Interview #1B, Interview #4, Interview #20, Interview #9). Second, the
appropriateness of the fishing restrictions in an MPA might be at issue. Species of
interest to First Nations like chiton, limpets, urchin and barnacles may not capture the
attention of government departments in charge of MPAs, such as DFO, which largely
focuses on salmon (Interview #2). In the Broken Group area of Pacific Rim National Park
Reserve the Hupacasath Nation aligned with Parks Canada to urge DFO to protect
rockfish. A third way in which MPAs may not meet the potential recognized by some
First Nations is if protected area agencies set higher catch limits than the First Nations
believe are necessary to achieve conservation objectives. In connection with the Gwaii
Haanas NMCA, the Haida have argued with DFO for a lower catch limit on herring
(Interview #9).
4.2
Ecosystem conservation
4.2.1 Priority on an ecosystem perspective
While fisheries management is frequently the lens through which MPAs are viewed, both
MPA advocates and First Nations have fundamental ocean conservation interests which
may link to, but extend far beyond opportunities for harvesting fish. Indeed, among
ENGOs, a common view is that the role of MPAs in fisheries management is secondary
and frequently over-played relative to their role in conserving marine ecosystem structure
and function. Ecosystem-based management provides an over-arching framework. MPA
expert Peter Jones (2007) argues that no-take MPAs “are essential if we are to adopt an
ecosystem approach to the management of our seas … [promoting] wider ‘ecosystem
health’ rather than being focused on ‘fish stock health’.” He maintains that the ecosystem
approach also incorporates the health of fishing communities and needs of future
generations, and includes conventional fisheries management approaches.
The integrated worldview of First Nations60 is consistent with an ecosystem perspective.
For example, an ENGO-First Nation workshop concluded that the MPA regime at Say
Nuth Khaw Yum Heritage Park/Indian Arm Provincial Park should seek to adopt a
holistic approach to management of the land-sea interface (Speaker #9).
In at least one First Nation, nascent interest in MPAs stems from a recognition that intact
areas of the marine environment may have to be set aside to ensure their survival in the
face of industrial pressure, creating more certainty in the long term – despite the lack of
fit between this approach to conservation and traditional management systems (Interview
#12). The notion that the marine ecosystems that are still functional need to be protected
60
See section 2.2.1.
36
First Nations and MPAs on Canada’s Pacific Coast
is seen as “a sad state of affairs,” given that it was not that long ago (possibly 70 years)
that the marine environment was “one big thriving ecosystem” (Interview #12). On a
more positive note, a leader from another First Nation observed that “MPAs don’t mean
one part of the ocean is more important than others, but taking this one part and using a
different lens to look at it can help people see the rest of the ocean that way” (Interview
#9).
4.2.2 The appeal of protecting marine ecosystems from development threats
A “Statement of Unity” from the First Nations Leadership Council (2007) includes
“Safeguarding Habitat and Responding to Threats”:
First Nations in BC have a common interest in long-term protection and
revitalization of aquatic resources and their habitat and will work together to
assess and respond to threats and to maintain and advance comprehensive habitat
protection programs in freshwater and marine environments essential for the
survival and productivity of all species and populations.
The Statement includes a fairly comprehensive list of threats to marine ecosystems
among its “Action Items”:
Convene a forum with First Nations, government and industry to assess threats to
marine and freshwater species and habitats and develop specific action plans for
areas including: environmental disaster response; global warming and climate
change; aquaculture; forestry (including Mountain Pine Beetle impacts to
riparian areas, and cutting practices and clear cuts); invasive species (marine and
land); ballast water discharges; mining; agriculture (run-off and water pollution
effects); pesticides; residential development; solid waste disposal; offshore oil
and gas; transportation (railways, roads, bridges); pulp mills; pollution effects on
marine mammals including killer whales, sea lions); channelization of rivers;
trawling (oolichan bycatch and shrimp trawling, benthic habitat destruction);
water flow and water use plans (First Nations Leadership Council 2007).
A key area in which some First Nations and ENGOs have engaged as a result of a shared
concern about environmental impacts is that of open net pen salmon aquaculture. Joint
efforts have kept this kind of fish farming out of some First Nation territories (Speaker
#11). First Nation interest may stem from specific concerns such as threats to a spawning
area, holding area or clam beds (Speaker #11), or a more general sense that salmon
farming poses too many risks to marine species and habitat (Interview #19).
The various threats listed above by the First Nations Leadership Council, and other
developments such as marine tourism, are often seen as threatening traditional activities
and encroaching on areas that are in the traditional territories of First Nations (R. Jones
2007), in addition to impacting ecosystems. For example, the Tsleil-Waututh see as a
prospective benefit of marine protection the restoration of fisheries in an area where they
have been unable to harvest clams for 30 years (Interview #7). Thus, a potential First
Nation interest in ecosystem conservation may dovetail with interests in access to marine
resources as well as assertion of rights and title.
As in the case of MPAs’ utility to fisheries management, First Nations are increasingly
aware that this conservation tool will not serve ecosystem conservation ends if provisions
First Nations and MPAs on Canada’s Pacific Coast
37
for protection are weak. The Hakai Luxvblais Conservancy Area may be a case in point,
where continued resource activity has prevented the designation from having much of a
conservation benefit to the Heiltsuk Nation. Members felt that the preceding designation,
the Hakai Recreation Area, had experienced some negative environmental impacts,
including depletion of bottom fish and pollution from increased boat traffic (Hamilton
and Wilson, n.d.). Currently, at least eight sport fishing operations, a mine, and some
commercial fishing including dive fisheries all occur within the boundary of the
Conservancy Area. Future use and protection are to be worked out in the management
plan. In the meantime, the agreement establishing the Conservancy provides that
preexisting uses are grandfathered in and there is a moratorium on new operations as the
management of the area is worked out (Interview #20).
4.3
Economic considerations
4.3.1 Potential negative economic impacts on First Nations from MPAs
MPA objectives should consider First Nations social and economic, as well as cultural
interests (BCAFC 1999). At worst, First Nation communities should suffer no economic
costs from MPA establishment in their territories; ideally, they should experience
improvement in economic conditions as a result of opportunities provided by MPAs.
Some coastal First Nation communities are badly in need of economic opportunities, with
very high unemployment rates. Thus, while maintaining ecological integrity may be a
main concern, First Nations cannot afford a reduction in current and potential income
sources as a result of conservation measures (Interview #8, Interview #19).
There are at least three categories of potential limitations on economic opportunities
stemming from MPA designation, as follows.
Loss of commercial fishing opportunities:
Many First Nation commercial fishermen strongly oppose MPAs. To some extent,
this view stems from positions they share with the commercial fishing industry in
general (Interview #8).
Loss of local employment/development opportunities:
As the commercial fisheries diminish and it is no longer economic to fish (due to
costs of fuel, etc.), there are fewer and fewer economic opportunities within coastal
communities. The remoteness of the communities correlates with a dearth of options
as compared to larger urban centres. But for many First Nations people, leaving their
traditional territory to work in a city is unappealing and/or impractical, so they remain
reliant on economic opportunities within or near to their isolated communities. Thus,
removing even a few remaining economic opportunities available locally by
establishing MPAs could be viewed as detrimental (Interview #8).
Loss of future resource development opportunities:
Ethically, First Nations should not be expected to forego long term resource
development opportunities any more than other people in BC, especially given a
pressing need for employment. Such prospects may include expanded aquaculture, oil
38
First Nations and MPAs on Canada’s Pacific Coast
and gas development, mining, coastal development and new commercial fisheries,
although interest in exploring larger industrial developments varies among First
Nations.
4.3.2 Capturing economic benefits of MPAs for First Nations
To the extent that the above potential costs are predicted in any given situation, the key
question becomes, “will the costs be outweighed by income generated through MPAs?”
And is this local income? Higher catch for fishing fleets based in larger centres such as
Victoria is not a benefit of MPA designation that accrues to the economies of small
coastal communities. Yet the socio-economic aspects of ecosystem management are
complex, so matching benefits to those who bear costs can be a challenge.
It may be more straightforward to capture income locally from conservation-based
enterprises other than commercial fishing. For example, employment in ecotourism that
could be driven by MPAs has the potential to provide sustainable economic benefits with
limited impact on natural resources. Yet past experience with protected areas in this
regard is mixed: tourism and recreation may increase without generating a major, local
economic benefit. Outside of protected areas, attention to economic benefits in treaty
negotiations often focuses on revenue sharing from resource extraction; other sources do
not have returns that are as obvious or as lucrative (Interview #6). More certainty could
be provided by including in management agreements a “right of first refusal on
commercial or economic opportunities” (Chunick 2006).
Another suite of potential economic benefits from MPA designation is direct income
from MPA management. Several First Nations are ideally situated to provide efficient
and cost effective management, monitoring and enforcement. Many already have welltrained staff such as Fisheries Guardians that are available for this type of activity
(BCAFC 1999). For example, the Hupacasath First Nation has boats, cultural knowledge,
guardians, trained fishery personnel and indigenous knowledge that could be more
refined and utilized in a way to monitor MPAs and be the eyes and ears in the field – and
they may be able to do this more efficiently than Parks Canada (Interview #12).
Provincial and federal government agencies recognize that First Nations should be
provided opportunities to participate in MPA management, monitoring and enforcement.
Parks Canada has a program dedicated to providing Aboriginal youth the opportunity to
develop management skills and foster career development (Parks Canada Aboriginal
Leadership Program (Parks Canada 2003)). Parks Canada’s workforce includes
Aboriginal staff in occupations including park wardens, historians, field unit
superintendents and heritage presenters.
A First Nation leader in BC has argued that First Nations should be guaranteed 50% of
the employment generated by an MPA61 (Speaker #13). The Heiltsuk have two seasonal
ranger trainees in Hakai Luxvblais who have accompanied BC Parks rangers in summers
to acquire skills and experience in preparation for taking on the rangers’ duties. The
Watchman Program in Gwaii Hanaas employs Haida people. Employment of First
61
A more fine-tuned indicator could be a percentage related to the size of the local First Nation population.
First Nations and MPAs on Canada’s Pacific Coast
39
Nations people in MPAs has the added advantage of increasing support for the MPA as a
whole through engagement of community members (Interview #19, Interview #11).
4.3.3 Economic contributions in connection with conservation initiatives
Some ENGOs have taken to heart the importance of providing economic benefits to First
Nations as an integral part of conservation initiatives. The Central Coast (Great Bear
Rainforest) accord is a large-scale success story in this respect. The funds assembled as
part of the agreement will assist First Nation communities in economic development as
an accompaniment to the establishment of numerous conservancies and the
implementation of ecosystem-based forestry. A similar approach could be used to balance
lost economic opportunities due to conservation in marine areas – e.g. through funding
shellfish aquaculture initiatives (Interview #8).
ENGO support to First Nations can be central to developing mutually advantageous
partnerships. Beyond funding, this can include capacity development through community
projects and/or programs such as GIS, providing both conservation tools and
opportunities for income (Interview #11). Ecotrust Canada is one ENGO that has focused
on this approach. For example, through a protocol agreement (not a partnership per se),
Ecotrust has helped the Tsleil-Waututh access funding for their marine stewardship
program.
4.4
Cultural/archaeological sites
4.4.1 Extensive cultural values of the coastal zone
Given that Aboriginal people heavily populated the Pacific coast for millennia, and that
the coastal zone was critical to their way of life, the coastline is inevitably dotted with
culturally significant areas, including traditional use sites in the water. These sites are a
reflection of the extensive, interconnected usage of land and sea that permeated First
Nations life. It is likely that any marine park would have at least ten to twelve
archaeological sites (Sliammon representative in BC Parks Legacy Panel 1997). In the
Broughton Archipelago Provincial Marine Park, there are more than 50 archeological
sites showing evidence of Kwakwaka’wakw use and occupancy (Beautiful British
Columbia Magazine 1996).
Specific values are numerous and diverse: for example, the Kyukaht people value
deposits of dentalia shells, which were once a form of currency (Interview #6). Many
First Nations treasure certain coastal features that were used as ceremonial sites, or
landmarks in navigation. Territories of certain Chiefs were delineated by sites such as
rock bluffs, which could be marked with a pictograph indicating their authority
(Interview #20). Sites may also include petroglyphs, canoe blanks, middens, canoe runs,
platforms of houses and fishing weirs (Hamilton and Wilson, n.d.).
40
First Nations and MPAs on Canada’s Pacific Coast
4.4.2 Minimizing risks to cultural resources
While recreation and tourism encouraged by MPAs can have economic benefits, these
activities are accompanied by risks to cultural sites. MPAs may attract tourists to
previously undisturbed areas by raising the profile of the place. (For example, kayakers
may be drawn to an MPA, and virtually any beach or cove suitable for landing a kayak
would have been a place of First Nations use or occupancy.) These new visitors may be
disrespectful to the environment and the territory of First Nations – leaving garbage,
anchoring in sensitive areas, discharging sewage from boats, spilling fuel, altering
spiritual sites and, at worst, stealing artifacts and tampering with graves. “Middens and
beach artifacts are particularly at risk from poorly located campsites and souvenir
hunters” (Hamilton and Wilson, n.d.).
Ways of minimizing these risks that MPAs may pose to cultural resources are listed in
Box 5.
Box 5: Ways of respecting First Nations culture in establishment and management of MPAs
•
•
•
•
•
•
•
Assess recreation and tourism impacts (and potential benefits) early in the process to allow
informed decision-making (BCAFC 1999).
In management goals and plans make it a priority to respect cultural heritage, sustain the
continuity of First Nation culture, and present natural and cultural heritage. This has been
done in the Gwaii Haanas National Park Reserve/Haida Heritage Site Management Plan.
Educate/raise the awareness of MPA visitors/users about the cultural values of MPAs.
Enforce rules about visitor activities to ensure protection of archaeological and cultural
resources.
Employ monitors from the First Nation who could share cultural knowledge and ensure the
protection of resources, while also encouraging visitor safety. (The Checklesaht have been
seeking such an arrangement for more than a decade, but the provincial government has not
dedicated the necessary funding (Interview #6)).
Set aside areas of cultural significance from development for MPA visitor use or management
purposes.
Involve First Nations in interpretation – or ensure that First Nations have control over
interpretation of cultural resources.
It is also common that coastal archaeological sites along the coast – in the water and on
the foreshore – are threatened by human activities without MPAs being in place. The
designation of an MPA could help to protect such sites.
4.5
Science, information, knowledge
4.5.1 Drawing together various sources of knowledge
First Nations often have a thorough understanding of what needs to be protected in their
traditional areas. An example from the San Juan Islands, as told by a Samish person
employed by state fisheries follows.
We hang out with old timers and talk about these issues and ask their advice, for
help in framing research. For example, we asked whether the Fraser River
First Nations and MPAs on Canada’s Pacific Coast
41
sockeye were doing anything in the San Juans. My colleagues all told me “they
don’t feed there.” Talking to the old timers who did the reef net fishing, they said
“they’re coming in to eat certain things in special places.” We followed this up
with research and discovered that there are critical feeding grounds in the San
Juans that haven’t been protected. Our science now says the same thing that they
know (Speaker #2).
First Nations indigenous, traditional and/or local ecological knowledge is not always
given this respect, and some scientists are just beginning to realize First Nations
knowledge is not merely hearsay – “Tribal people were the first scientists in this part of
the world – as fishermen and astute observers of nature they have found out that the water
has its own way” (Speaker #4). MPA management can benefit greatly from insights
based in traditional knowledge, values and practices, and there is a need for MPA
scientists to spend time with local communities and learn to share knowledge (Smyth
2005). But before getting to the management stage, planning for marine conservation and
the possible designation of MPAs should include integration of all available knowledge
in assessment and analysis. Not only does this maximize understanding applied towards
appropriate outcomes, it can help in building trust and information exchange between the
interests in the process (Speaker #12). In many cases a lack of trust may initially stymie
the mutual learning process, while in others there is a readiness to work together:
Our elders say we need to work together on this issue [pollution of the waters of
the traditional territory], to have Canada come to our villages to share their
knowledge. We would like to share our knowledge with them, working together,
because we have to live with each other (Jacks 2001).
Challenges in blending types of knowledge can be surmounted. While gathering the
information may happen at different speeds and at different times for different groups,
decisions can take it all into account in the end (Speaker #11). Technically, there are
ways to place traditional/local and technical/scientific knowledge on equal footing. For
example, traditional/local knowledge can be put into a scientifically agreeable format by
using population ecology modeling to integrate local traditional, ecological and
environmental knowledge (Speaker #11).
4.5.2 Respecting traditional knowledge
Care needs to be taken in the accessing, use and communication of traditional knowledge.
Much of it is highly proprietary; it is kept within families and passed down orally, rather
than being shared with outsiders. Now that it is increasingly being recorded electronically
and in print, considerations around intellectual property rights increasingly come into
play (Speaker #2). Non-natives may be privileged to access traditional knowledge for
MPA purposes, but it still remains, fundamentally, the property of families, nations and
individuals.
42
First Nations and MPAs on Canada’s Pacific Coast
MPA proponents have to take time to build the necessary trust for First Nations to share
their knowledge (if the First Nations so choose). The process of gathering information
can itself help to establish a relationship, especially if those involved are able to hear
directly from First Nation elders and leaders:
The elders have much to share, including different perspectives on nature and
life. This tremendous resource holds lessons that might not be understood right
away. Elders teachings can be said to be ‘time-released’ (Speaker #4).
Policies can help ensure that traditional knowledge is respected. For example, Parks
Canada committed to develop an Agency-wide strategy for the use of traditional language
and knowledge in the areas of place names, signage, interpretation, programming, and
management plans at the Minister’s Round Table on Parks Canada in 2005 (Parks
Canada Agency 2005). At a minimum, ENGOs and MPA agencies must guarantee that
any disclosure of sensitive information is done with First Nation consent and within any
constraints and policies set by the First Nation (Interview #19).
4.5.3 Strengthening the First Nations role in marine conservation science
While it is commonly asserted that more effort should be made towards integrating
traditional and western scientific knowledge in MPA management (Smyth 2005), it must
be kept in mind that the knowledge base of First Nations often includes both. First
Nations frequently have capacities for gathering and analysing information in scientific
ways as well as possessing indigenous knowledge:
You just can’t come along and say “Indians, we’re going to fix up the
environment for you.” Nobody knows this land better than we do. We have better
GIS than our local district and they recognize that (Interview #7).
Following are four examples of how First Nations can be involved in marine
conservation science.
Heiltsuk contaminants study
The Heiltsuk Nation was involved with UBC in a study of metal contaminants in
marine plants and animals. Some see the Hakai Luxvblais MPA as offering the
potential benefit of triggering new scientific research into plants and animals that
serve as food sources (Interview #20).
Center for the Study of Coast Salish Environments
Through the Center for the Study of Coast Salish Environments, a tribally sponsored
research centre in Washington State, the Samish trained scientists and pursued a
mandate of science in the service of stewardship of the Samish traditional territory.
Part of this involved combining traditional knowledge with conventional western
science. They recruited and trained young First Nation scientists in the Samish
Stewards program. Research focused on marine food species (Speaker #2).
BC Marine Conservation analysis (BCMCA)
Representatives from the Nuu-chah-nuuth, Coast Salish and Haida Nation are
observers in the BCMCA. First Nations have played a key role in defining the terms
of reference for the project: it takes an iterative approach involving creating data
First Nations and MPAs on Canada’s Pacific Coast
43
layers for mapping first on a scientific basis (looking at ecological components
through Marxan), and then adding social and economic components. Traditional
ecological knowledge will also be incorporated (Interview #4).
Nuu-chah-nulth food and ceremonial harvesting research project
A general concern is that closing areas to fishing can cut off the supply of data for
managing fisheries, as DFO cannot do the research due to lack of resources. At the
same time, it is common to assume that no-take MPAs will allow extraction of
resources as necessary for monitoring or research to evaluate effectiveness (P. Jones
2007). The Nuu-chah-nulth food and ceremonial harvesting research project presents
the idea that MPAs, particularly RCAs, could allow continued FSC harvesting in a
way that would provide information to DFO and others that would be helpful for
recovery of species (Interview #10). Closely monitored, systematic FSC harvesting
could provide stock information within and adjacent to protected areas. This approach
to information gathering may appeal to First Nations generally for a number of
reasons:
•
•
•
•
•
44
It involves the First Nations in research, with the question being, “is there in the medium
term (5-10 years) a response that’s observable through some kind of assessment?”
(Interview #10)
Results from the harvesting data may show First Nations that MPAs are a viable
conservation tool. For example, they may indicate that MPAs are advantageous as
recovery areas, in some cases as nurseries to repopulate surrounding areas.
It demonstrates that MPAs do not necessarily threaten harvesting abilities for FSC
purposes.
The research contributes information to DFO and others that would be helpful for
recovery of species.
First Nations know that they need data and that having information positions them well
for increasing authority in managing resources (Interview #10).
First Nations and MPAs on Canada’s Pacific Coast
5
MECHANISMS FOR ADDRESSING FIRST NATIONS
RIGHTS, CONCERNS AND INTERESTS RELATED TO MPAS
Many of the opportunities and examples of successful experiences in previous sections of
the report point to ways of addressing First Nations rights, concerns and interests related
to MPAs, particularly in the following sub-sections:
•
•
•
•
•
•
Achieving meaningful consultation in connection with MPAs (section 3.2.4)
Respecting rights and title in MPAs (section 3.3.3)
Capturing economic benefits of MPAs for First Nations (section 4.3.2)
Respecting First Nations culture in MPAs (Box 5)
Respecting traditional knowledge (section 4.5.2)
Strengthening First Nations role in marine conservation science (section 4.5.3)
This part of the report explores directions, institutional arrangements, and initiatives that
may work at a broader level to enhance the compatibility of MPAs – or related marine
conservation tools – with First Nations rights and interests, and alleviate the root causes
of First Nations concerns about MPAs.
5.1
Tailoring MPAs to address First Nations interests
While the need for the main conservation objectives of the MPA strategy was not
disputed (biodiversity and fishery conservation), it was not accepted [at
workshops with coastal First Nations] that MPAs were necessarily the best way
to achieve these objectives (Jones and Guenette 2000).
5.1.1 No-take areas on First Nations terms
The crux of First Nation opposition to MPAs, or the implications of MPAs, in most cases
stems from concern over harvesting restrictions, especially for FSC fishing. This is not a
small matter, since many MPA supporters, and some MPA designations, call for at least
one part of an MPA to be free of harvesting. Creative solutions are needed. One
constructive approach is to focus on aspects of management other than what is closed or
open to harvesting, to generate alternatives that serve everyone’s interests (Interview
#11). Nevertheless, the spectre of no-take areas, which are also referred to as marine
reserves, needs to be addressed at least in particular cases, if not in general policy or
principles.
It may be possible to retain the notion of no-take areas if they are conceptualized on First
Nations terms. While First Nations may object to being directed not to harvest, they may
themselves choose not to harvest from an area (Speaker #8). A workshop concluded that
no-take zones at Say Nuth Khaw Yum Heritage Park/Indian Arm could be agreeable to
the Tsleil-Waututh First Nation, acknowledging that continued rights to harvest would
not be extinguished (Speaker #9). At Race Rocks there was a possibility that First
Nations would volunteer to not exercise their FSC rights within the MPA, at least for a
First Nations and MPAs on Canada’s Pacific Coast
45
period of time, although any decision not to harvest would not be written down
(Interview #5).
Some First Nations have little experience with current-day area fishing closures. For
example, there are no area closures for First Nation harvesting on the west coast of
Vancouver Island so the Nuu-chah-nulth have little experience with this management
approach (Interview #10). (Seasonal and other restrictions on harvesting such as coastwide closures for abalone are different.) On the other hand, the concept of setting aside
areas from harvest has roots in traditional management; the difference is that decisionmakers within First Nations would declare why and when an area was closed or open to
active use. The knowledge of experts such as elders was applied “to determine when it’s
time to do something like fish and when it’s time to stop, until the area recovered and
could be used again” (Interview #13). The practice of self-imposed moratoria on
harvesting certain species has been demonstrated by some coastal First Nations in recent
times as well (Interview #1).
There is thus some potential for no-take areas to attract First Nations support based on the
need to protect areas for certain species (Interview #19, Interview #1). Some First
Nations individuals have expressed concerns about species and habitats at risk in areas
proposed for MPA designation such as the glass sponge reefs (Interview #8). No entry
zones might be considered for small, special areas such as breeding grounds, an
endangered species habitat, or a whale-rubbing beach. In the terrestrial environment, First
Nations have themselves closed areas for such reasons – as the Haisla closed the Kitlope
to protect grizzly bears.
In the end, when you agree on boundaries and uses you might find that people
come to some kind of accommodation of “no-take areas” based on principles,
and the First Nation might agree to have some areas that are no-take, but that’s
really up to individual First Nations who hold the rights and title to make those
decisions and Canada has to respect those rights (Interview #11).
5.1.2 Priority on protection of archaeological and cultural sites
As mentioned in section 4.4.2, First Nations cultural and archaeological sites along the
coast are threatened by human activities and MPAs could set out to increase the
protection of such sites. The designation of an MPA could increase respect for these
important places through appropriate visitor education. Protection of the sites could be
improved through increased surveillance. Finally, sites where cultural values and
sensitivity/vulnerability are particularly high (e.g. burial sites) could be placed off limits.
5.1.3 New terminology
The term MPA has come to connote rigid constraints on harvesting (Interview #1), such
that it “scares away a lot of First Nations” (Interview #20), and some observers call for a
new name free of such connotations. They feel that, by working with First Nations to
generate a new name and concept, MPA advocates could demonstrate a willingness to
“find something in it for everybody” (Interview #1B).
46
First Nations and MPAs on Canada’s Pacific Coast
You can put all the good words on paper that you want – e.g. that First Nations
can utilize areas even if they are in an MPA – but the implied constraints on
harvesting really come out in the term MPA – if it quacks like a duck it is a duck.
It’s like when somebody from the coast hears the word “park” – they have a
negative reaction (Interview #1).
BC is emphasizing Marine Protection Areas in the sub-agreement to the federalprovincial Oceans MOU in part because Marine Protected Areas has a negative
connotation for First Nations – though whether the new term resonates with First Nations
is uncertain. The new Conservancy legal tool has largely met coastal First Nations
concerns in the designation of terrestrial protected areas. The Conservancy designation
avoids the negative association of Provincial Park or Protected Area, and goes further to
explicitly recognize the importance of these areas to First Nations for social, ceremonial
and cultural uses (BC Parks).62 Indeed, the preservation and maintenance of social,
ceremonial and cultural uses of First Nations is one of four reasons for establishing
conservancies.
The definition of MPA agreed upon by BC ENGOs (see section 1) could be reconsidered
in light of the options outlined in the next section.
5.1.4 Spatial and temporal flexibility
Another possibility for tailoring MPAs on First Nations interests is in spatial flexibility of
zones and boundaries using ecosystem-based management. Flexibility through time is a
parallel proposition:
People get scared with MPAs because once you close an area, it’s closed, and
fishermen are terrified that it will never be opened, and what we might think
about doing more is a rotational thing (Speaker #11).
Rejecting the notion of spatial harvesting restrictions being “cast in stone,” First Nations
see the fixed-in-place nature of MPAs as a major barrier to acceptance (Interview #4).
They would prefer more of an experimental approach, with a focus on the spatial
management of fisheries based on monitoring and assessment. This approach calls for
adaptability based on learning over time, and federal MPA programs are consistent with
the First Nation perspective to the extent that they emphasize the ecosystem-based
approach. Ideally, MPAs could become “living laboratories” (Interview #14, Speaker
#11). Findings from monitoring and research could point to adjustments in MPA
boundaries, or even relocation of MPAs. The size of the area could also change – getting
larger as it is determined that meeting objectives requires this, or shrinking, as stocks
rebuild (Interview #1B, Interview #4, Speaker #11).
Boundary changes that would reduce the size of MPAs are not, generally speaking,
acceptable to ENGOs or to the managing agencies. Yet large, multiple use MPAs –
typically NMCAs – might have enough latitude for adapting management within the
boundaries, including zoning, based on new information from monitoring, etc. (Interview
#14, Speaker #11).
62
http://www.env.gov.bc.ca/bcparks/facts/prk_desig.html#Conservancy
First Nations and MPAs on Canada’s Pacific Coast
47
Flexibility of MPAs in space would also require flexibility over time, with the extreme
being the cancellation of MPA designation. Assurance that MPAs are permanent,
meaning that certain human uses or development will be precluded indefinitely, is central
to most conceptions of MPAs. Yet many First Nations are unlikely to agree that any
given area would be closed for perpetuity (Interview #13). For example, some were
opposed to the pilot Oceans Act MPAs (Gabriola Passage in particular) because although
they understand the logic of caring for the marine environment, their experts would close
the area only until it had an opportunity to regenerate (Interview #13). If MPAs are about
restoring the abundance and diversity of marine ecosystems, it makes more sense to First
Nations to have closures in place only until abundance and diversity has returned,
thereafter managing harvesting in the area sustainably (Interview #1B).
In response to concerns voiced by First Nations and fishermen in the Pacific Northwest
about MPAs, US fishery managers have considered “a sunset clause that will force us to
review them and monitor them and make changes to improve them” (Speaker #1). At the
same time, they caution:
You’re not going to create an MPA and in three years have a wonderful
functioning ecosystem. You’re talking about a commitment of an area for at least
a decade before you’re going to see much difference in this part of the world if
you create an MPA for resource protection. I would really look carefully at the
idea of rotating MPAs for many of our species. For species like rockfish and
lingcod, for an MPA to be effective, you’re talking about many, many years
(Speaker #1).
The option of time limitations on management provisions such as no-take areas could be
usefully explored further, but the above commentary indicates that the choices will not be
straightforward.
5.1.5 Accommodating FSC harvesting
As explained in section 3.1.5, First Nations rights to harvest for FSC purposes protected
under Section 35 of the Constitution may only be infringed if the justification test is met.
This includes a consideration of whether the government has a compelling and substantial
legislative objective such as conservation. In the case of DFO and Environment Canadaled MPAs, conservation is likely a key objective – these MPAs are often designated to
protect a particular species that is severely depleted. The other context in which it might
be expected to apply is in the zone that all NMCAs must include “that fully protects
special features or sensitive elements of ecosystems” under section 4 (4) of the Canada
National Marine Conservation Areas Act.63 Yet MPAs under the Oceans Act do have the
flexibility necessary to accommodate FSC harvesting – as is provided at Bowie Seamount
(Interview #8). And even NMCAs may be flexible enough to provide for traditional
harvesting within the required fully protected area: “just because there’s a specially
protected zone doesn’t mean there cannot be traditional harvesting as well, such as
seasonal activities or fishing in the water column” (Interview #14). Parks Canada
representatives in BC are comfortable that zones in protected areas that accommodate this
Aboriginal rights-based use, but no other, can offer a high level of protection (Interview
63
See section 4.1.1 for a fuller discussion of the threat of loss of First Nations access to fish in MPAs.
48
First Nations and MPAs on Canada’s Pacific Coast
#14, Interview #3). MPA planners and managers can work with First Nations to manage
the core protection zone to high conservation standards, using traditional, local and
science-based knowledge together, even as FSC harvesting continues.64
Provincially-designated MPAs tend to place relatively few restrictions on fishing;
nevertheless, First Nations have experienced constraints on harvesting in coastal parks.65
The Conservancy designation as a new form of provincial protected area was
promulgated in part to ensure continuity of First Nation access. The Hakai Luxvblais
management plan provides for at least one zone that the First Nation uses as a food fish
area for salmon where others are not permitted to fish (Interview #20).
While conservation needs are met in areas of FSC harvesting, areas of MPAs open to
FSC harvesting may not necessarily be able to tolerate recreational and commercial
fishing (Interview #3). The multiple zoning opportunities of NMCAs can allow for
recreational and commercial fishing elsewhere, making the FSC-only zones more
palatable to these stakeholders. Other types of MPAs may be too small to encompass a
range of uses and thus become exclusive to First Nation FSC fisheries – as might have
been the case in the proposed Race Rocks MPA (Interview #5).
New designations for conservation areas focused on FSC harvesting are under
consideration by some First Nations. These are discussed in section 5.3.1.
64
For any prohibition against FSC harvesting to withstand a legal challenge from a First Nation, the
government would have to meet the justification test (among other factors, the necessity of conservation).
65
See section 4.1.1 for some examples.
First Nations and MPAs on Canada’s Pacific Coast
49
5.2
Shared authority for MPAs
We and our ancestors have been protecting our territory for thousands of years.
That’s within our traditional territory, both land and sea. Now Parks Canada is
trying to develop a marine protected area. It is about time we worked together on
this at the same level; this means First Nations, the federal government, and the
province, so we are not put aside (Jacks 2001).
5.2.1 The importance of authority for First Nations in protected area
management
The most significant concern of First Nations regarding protected areas, along with
impacts on access to resources, is potential loss of management authority – which is
connected to critical issues of rights and title.66 Shared authority, exemplified by
collaborative management of protected areas, goes further than consultation,67 providing
for ongoing attention to First Nations concerns and interests. It also dovetails with a
widespread First Nations drive to self-government that includes local resource
management and protection.
Essentially, First Nations need to be recognized as resource managers and owners, as
well as resource users (Speaker #7). This priority has been voiced in many ways:
First Nations need a continuing say in management of their resources. Losing a say in
management of these resources is very problematic (Interview #6).
The First Nation has to be a partner at the table with whatever government organization is
there – we’re not a stakeholder – If my territory is a bus, we are bus drivers, not bus riders
(Interview #7).
First Nations must have a say and authority in how MPAs are managed (Speaker #3).
First Nations need more of a decision-making role, rather than only being a source of
traditional ecological knowledge (Interview #17).
First Nations need to be party to decisions on the ground, governing what appropriate uses
will be. How they are going to be part of the decision-making process needs to be clear
(Interview #13).
Consenting to a protected area must not lead to handing over control of that area to
government (Interview #19).
•
•
•
•
•
•
International experience reviewed by Smyth (2005) illustrated that indigenous peoples
have more difficulty exercising their authority over their traditional coastal and marine
areas in Australia, New Zealand and North America than in regions where government
agencies are under-resourced or central governments have little authority (Smyth 2005).
Experience in cooperative management in four national parks in Canada examined by
Weitzner and Manseau (2001) is consistent with this observation, in that the issues of
most concern were associated with jurisdiction, authority, and who should have the final
say in decision-making – the balance of power. These issues largely arise from the
advisory status of most co-management arrangements, in which the decisions of the
66
67
See section 3.
See section 3.2.
50
First Nations and MPAs on Canada’s Pacific Coast
advisory body may be ignored or dismissed by the state.68 The lack of substantive or
legally binding authority on the part of the indigenous participants often results in the
continuation of conflict and deterioration of resources (Goetze 2005).
Co-management based on the fundamentals described below can avoid these pitfalls.
Other options for shared authority that balance power towards First Nations are explored
in section 5.3. A constraint on shared authority from the Canadian government
perspective is that of “fettering the Minister’s authority.” Given the continuing evolution
of the recognition of First Nations rights and title, this constraint should not be
considered a showstopper.
5.2.2 Fundamentals of co-management
In section 3.3.3 cooperative agreements for protected areas were mentioned as a way of
respecting rights and title. Co-operative or collaborative management is shortened to “comanagement,” though the latter term has come to imply a more thorough sharing of
authority than simple cooperation. The best co-management processes represent a high
level of consultation and have the additional benefits of starting to build long-term
relationships in advance of treaties (Jones 1999). Under circumstances in which all agree
an area should be protected, co-management agreements can provide firm foundations for
partnerships with First Nations, helping establish parameters that are respectful of all
parties’ rights and interests (Speaker #8). To do so effectively:
•
•
•
They must reflect the practical exercise of First Nations legal rights (Speaker #8).
The agreement should demonstrate symmetry. It needs to recognize that both parties have
their own authorities, laws and protocols, and it should not require one party to submit itself
to the authority and jurisdiction of the other. The Gwaii Haanas agreement is an example in
which both parties are equal (Speaker #8).69
Those involved have to be willing to “embrace [collaborative management] boards as part of
a new relationship where there is shared responsibility – rather than seeing them simply as
‘just advisory bodies’” (Weitzner and Manseau 2001).
Key components of a co-management agreement for an MPA are listed in Box 6.
Box 6: Components of a co-management agreement for an MPA70
A. Parties: The agreement has to be government-to-government, in an equal relationship. Two
or more government parties can engage in a single tiered agreement, or it can be two-tiered to
bring in local groups. In this multi-party agreement there would be a decision-making group
and an advisory group.
B. Interests: Set out the interests of the parties in the area, including reasons/objectives for
protecting the area. Establish a clear vision for the area and the shared interest.
C. Rights: Recognize harvesting, stewardship and self-government rights, but do not define
rights. Set out any agreed-upon limits on harvesting.
68
Many would argue that the term co-management should not be used to describe these advisory
arrangements.
69
See section 3.3.3.
70
Speaker #8
First Nations and MPAs on Canada’s Pacific Coast
51
D. Role of First Nations in stewardship/management of the MPA:
- Establish boards/committees.
- Describe the scope of authority of boards/committees, being clear on which are decisionmaking and which are advisory.
- Set up a dispute resolution process, rather than relying on the courts.
- Establish enforcement/compliance arrangements.
E. Process for incorporating Traditional Knowledge: The agreement must include a
process/mechanism that allows confidentiality and ownership of traditional knowledge to be
protected.
F. Legal framework for MPA: The agreement may establish a legal framework for an MPA
Reserve, providing partial or interim protection prior to reaching a certain milestone, such as
a treaty or other settlement. Once the milestone is reached the area would change from
Reserve to MPA with full protected area status.
Within co-management processes, there are interests that should be involved beyond the
government players. Like federal or provincial governments, First Nations need to
involve their communities in MPA planning and management. For the Gwaii Haanas
NMCA reserve – a proposal driven by both Parks Canada and the Haida – the Council of
the Haida Nation facilitated a series of community meetings in Haida Gwaii to discuss
the proposed MPA. The Hul’qumi’num Treaty Group Park Advisory Committee strives
to inform member First Nations on topics of approaching consultations about the Gulf
Islands National Park Reserve.
Other sources of guidance on effective co-management of protected areas in Canada
include Gladu et al. 2003a and 2003b, Chunick 2006, and Gardner 2001. For an overview
of community and indigenous peoples’ involvement in MPAs throughout the world, see
Guénette et al. (2000).
5.2.3 Positive experience of cooperation in BC coastal/marine protected areas
In several coastal and marine protected areas in BC, progress has been made towards
effective collaboration. Positive features include:
•
•
•
•
•
•
working on arrangements to improve collaboration,
correcting past infringements and misunderstandings,
building on good relationships established in connection with protected areas over time,
patience in working towards a shared vision,
integration of First Nation representatives in decision-making bodies, and
gaining experience by working on projects together and recognizing rights and title.
Some examples of positive experience of cooperation in coastal/marine protected areas
are provided below.
Coastal Conservancies
A review of collaborative management of newly designated coastal Conservancies in
BC by the Canadian Parks Council (2008) lead to three key lessons. First, “through
early engagement, empowerment and by being responsive, a great deal of support and
goodwill for the protected areas system has been gained.” Second, “by providing
project funding an effective and locally relevant operations program was developed.”
52
First Nations and MPAs on Canada’s Pacific Coast
Third, “for the cooperative processes to be workable a great deal of coordination is
needed.”
Pacific Rim National Park Reserve
At Pacific Rim, careful relationship-building between Parks Canada and the nine First
Nations in the area has occurred over the past decade. The relationship with each of
the Nations is unique. There are agreements with some First Nations, and related
committees. A few of the First Nations have brought forward conservation proposals
in the vicinity of the Park, including one that would extend conservation measures
into an adjacent watershed, and a suggestion for an NMCA in Barkley Sound. While
“there is much to do” at Pacific Rim National Park Reserve in First Nations
engagement, “there are many accomplishments and much to be proud of” (Pacific
Rim National Park Reserve 2006).
Haida Gwaii
The agreement for the Archipelago Management Board at the Gwaii Haanas National
Park Reserve sets out an equal process in the decision-making structure, as explained
in section 3.3.3. It does not explicitly place final decision-making authority in the
hands of the Canadian government or its representatives as many agreements do
(Clogg 1999).
Recently the Council of the Haida Nation has signed an agreement with the federal
government regarding the Bowie Seamount MPA. This is similar to other comanagement agreements the Haida have entered into (Interview #11).
The Haida had already included marine areas in their original design of Gwaii Haanas
(Interview #9), and progress towards a Gwaii Haanas NMCA is advanced. Positive
experience in co-management of the terrestrial component of Gwaii Haanas has
provided a good foundation for this initiative – Parks Canada and the Haida have a
constructive working relationship. A bilateral agreement similar to that for the
National Park Reserve has been set out in a draft MOU for the NMCA (Interview #5).
Say Nuth Khaw Yum Heritage Park/Indian Arm Provincial Park
In 1995, following court action by the Tsleil-Waututh, a Memorandum of
Understanding for co-management of this Heritage/Provincial Park was negotiated.
While it is regarded as a good agreement, limited resources in BC Parks have meant
that implementation of the agreement has been slow. The Tsleil-Waututh have had
discussions with the Vancouver Port Authority about putting the marine area into
protection – “We’ve been saying to the different people that we think it makes sense
to manage all of our resources together … It’s a work in progress” (Interview #7).
Hakai Luxvblais
Chiefs and elders in the Heiltsuk initially objected to the protected area designation at
Hakai Luxvblais because of implications for use and occupancy. Following extensive
negotiations with the province an agreement was reached on a Conservancy Area
designation in 2003. The agreement’s recognition of Heiltsuk rights and title is
significant and unusual. Traditional use and occupancy permeates the agreement, and
zoning to meet FSC requirements and reduce conflicts with other fishing is being
considered. Although the agreement does not grant the Heiltsuk discretionary power –
First Nations and MPAs on Canada’s Pacific Coast
53
the minister still has to approve the management plan – the Heiltsuk intend, in time,
to take over management of Hakai Luxvblais (Interview #4, Interview #20, Hamilton
and Wilson, n.d.).
Gulf Islands National Park Reserve
In the Gulf Islands National Park Reserve, Parks Canada has agreements (and
committees) with the Seycum First Nation, Hul’qumi’num Treaty Group and the
Sencot’en Alliance (which includes the Semiahmoo, Tsartlip, Tsawout, Pauquachin)
(Interview #14). Parks Canada and Hul’qumi’num participants have commented that
a positive relationship is slowly building (Interview #16, Interview #13). Work
towards a shared vision statement for the park reserve has begun. For example, Parks
Canada recognizes that the First Nations have long-term knowledge that is essential
to management. In this regard, the Agency has gone to the committees on a fire
management process at the conceptual planning stage, seeking to engage the First
Nations in a meaningful way (Interview #16). The committees also help to ensure
park management meets legal obligations related to rights and title.
Olympic Coast National Marine Sanctuary (south of BC)
In 2007, the coastal treaty Indian tribes, State of Washington and National Oceanic
and Atmospheric Administration (NOAA) National Marine Sanctuary Program
established an Intergovernmental Policy Council to manage the marine resources of
the Olympic Coast National Marine Sanctuary. The Policy Council will provide a
forum for the tribal, state and federal governments to coordinate activities within the
sanctuary. The sanctuary is entirely encompassed by the traditional harvest areas of
the Hoh, Makah, and Quilleute tribes, and the Quinault Indian Nation. As sovereign
nations, the tribes have treaty fishing rights and co-management responsibilities with
the State of Washington for fish and other natural resources within the sanctuary.
“The Policy Council brings tribes to the table and integrates us into the management
and decision-making process about resources that we co-manage with the state within
the sanctuary” (NOAA 2007).
5.3
First Nation-driven marine conservation
First Nations are engaged in myriad efforts that are very meaningful to the protection and
restoration of marine resources and ecosystems. Here, the focus remains on spatial
mechanisms, like MPAs, which seek conservation ends in specific locations.
5.3.1 Reversing the “top-down” approach
A study by the Wildlife Conservation Society (WCS 2006) showed that MPAs managed
by local communities may be more effective than those managed by governments. The
study examined 11 MPAs in Indonesia and Papua New Guinea and found that because
communities recognize that they can directly benefit from marine reserves with healthy
fish populations, adherence to reserve rules is greater within community MPAs. As a
result, these sites tended to have fish growing to a larger size, which is a sign of a
healthier reef. MPA success was found to depend on consideration of socioeconomic
factors and locally appropriate, adaptive regulations, such as pragmatic management to
54
First Nations and MPAs on Canada’s Pacific Coast
meet the goal of providing fish for community feasts (WCS 2006). The most appropriate
regulations might be those rooted in the indigenous governance system. For example, the
Melanesian government was exploring the restoration of citizen control over local seas in
the hope of using traditional knowledge, customs and laws to protect fish stocks and
biodiversity (Young 2004). Consistent with this international experience, the Panel on
Ecological Integrity of Canada’s National Parks stated that “The traditional rules of
Aboriginal peoples must be acknowledged and trusted, because these traditions are
responsible, first and foremost, to conservation” (Parks Canada Agency 2000).
First Nations-driven MPAs thus might employ more effective management mechanisms
towards the conservation of biodiversity, as well as having the benefit of full First
Nations support for the conservation measure. To realize these opportunities, some
believe that the process of establishing MPAs has to begin again from the ground up.
Often it’s the scientists that make the decisions. Community based management
has a different structure and fits well with Aboriginal rights and title. On [our]
traditional territory, we want to make the decisions and we want to be informed
by local and traditional knowledge as well as the best available science. We are
concerned that the MPA process will be top down whether it’s from DFO or
another top down structure (Speaker #11).
As one First Nation leader put it, people promoting MPAs “need to understand that the
First Nations have to be the drivers of protecting the environment in their own territory”
(Interview #7). In this scenario First Nations are at the forefront of the process as
initiators and creators of the MPA. The First Nations lead the planning, shape the
conservation objectives for the area, and implement the protective measures and evaluate
effectiveness over time (Speaker #3).
Conservation objectives generated by First Nations could improve congruence with First
Nations interests – e.g., prioritizing protection of sensitive archaeological areas,
incorporating restoration of degraded foreshore areas and formulating alternatives to notake areas.
First Nation-driven MPAs would fit within an international movement towards
Indigenous Peoples’ and Community Conserved Areas (ICCAs), which are now
recognized in the Convention on Biological Diversity. Other terms used around the world
for this phenomenon include locally managed marine areas, bio-cultural heritage sites,
and indigenous protected areas. ICCAs are specific sites, resources or species (where
areas refer to the species’ habitats) voluntarily conserved and self-directed by indigenous
peoples and local communities according to community values, practices, rules and
institutions. ICCAs are intertwined with local strategies for livelihoods and with the
spiritual and material values of local cultures. Support for ICCAs globally recognizes the
appropriateness of supporting indigenous peoples and local communities in strengthening
and applying their own knowledge, skills and institutions to natural resource management
and conservation rather than “participating” in conservation measures conceived and
directed by others (IUCN, TILCEPA 2004, Borrini-Feyerabend et al. 2004, IUCN
CEESP 2008).
First Nations and MPAs on Canada’s Pacific Coast
55
5.3.2 Spatial conservation mechanisms with a focus on FSC harvesting
A specific application of CCAs in the MPA context focuses on protected areas in the
ocean that are available for FSC harvest but not other forms of fishing. This option holds
considerable appeal for First Nations (Interview #20), and management for exclusive
indigenous fishing rights can serve conservation objectives at the same time, leading to
improved biodiversity outcomes (Smyth 2005). Other benefits of protecting areas for
FSC harvesting by First Nations are listed in Box 7.
Box 7: Benefits of protecting areas for FSC harvesting
•
•
•
•
•
Reducing fishing pressure and increasing fish stocks (Interview #4)
Reducing competition between sports, commercial and First Nation fishermen (Interview #4)
Raising awareness in the general public about First Nations primary, legal and moral right to
harvest (Interview #2)
Providing local access to marine species that First Nations require for FSC purposes by
protecting stocks from the higher capacity commercial fleets (Interview #1, Interview #6)
Providing an opportunity to re-introduce traditional social institutions and a vehicle for the
development of a contemporary version of traditional resource management systems (Ayers
2005)
Momentum towards putting the above benefits at the forefront of spatial approaches to
marine conservation has led to suggestions for new designations that reflect the FSC
focus, including Food Fishery Reserves, Culturally Significant Areas, and Exclusive Use
Zones.
At least two First Nation organizations are fleshing out the concept of protected marine
areas focused on FSC harvesting. The Coastal First Nations Turning Point Initiative has
been building a rationale for exclusive use areas based on dietary needs, with ceremonial
and informal trade components to be added to the analysis. There is an argument to be
made that the government has legal obligations to meet these FSC requirements
(Interview #4).
Hul’qumi’num Management and Harvest Areas (HMHAs) have been considered by the
Hul’qumi’num Treaty Group. The idea would be to establish a network of HMHAs for
the sole use and management of the Hul’qumi’num people. The aim would be to reflect
the tradition and culture of the Hul’qumi’num and ensure that they regain access to
marine resources.
The HMHAs are, potentially, a type of management area where it may be
possible to manage on a community-based and ecosystem level by including all
species and habitats and to construct a conservation ethic into the management
and harvest zoning for the area. Having a traditional focus by incorporating the
principles of tenure of marine harvesting areas, these areas have similarities to
MPAs but are governed by communal needs and values (Ayers 2005 p.88).
Again, this kind of initiative is consistent with international trends in which resource
extraction reserves are being established to focus on conservation along with specific
forms of resource harvesting consistent with the conservation objectives.
56
First Nations and MPAs on Canada’s Pacific Coast
5.3.3 Combining MPAs and community-based fisheries management
FSC-focused MPAs could combine MPAs with community-based fisheries management
– an idea that has received little attention to date (Interview #18). Proposed arrangements
for the NMCA at Gwaii Haanas are moving in this direction. The NMCA designation
will provide advantages to the Haida in FSC and some commercial harvesting, and the
Haida will have a role in management (Interview #14). Leaders in Haida Gwaii have
been closely involved in discussions of fisheries management in the NMCA, with a view
to ensuring that the interests of local people are not neglected in relation to those of park
visitors (Interview #9). It is the large, multi-use MPAs such as NMCAs that present the
strongest prospects for First Nations to actively participate in local fisheries management.
The community-based fisheries management also provides opportunities for First Nations
and DFO to explore alternative management systems at a scale appropriate to ecosystembased management,71 especially for species such as clams, sea urchin, abalone, sea
cucumber, geoduck, or rockfish (BCAFC 1999).
However, this community-based approach to fisheries management does not work well
with the concept of no-take MPAs: “the emphasis of proponents of rights-based fisheries
management is on the empowerment of fishermen through property right allocations to
create incentives for sustainable fish stock management rather than the pursuit of no-take
MPA targets that remove fishermen’s access rights” (P. Jones 2007). Yet the
conservation benefits of areas in which only an artisanal style,72 FSC-oriented fishery is
allowed may well be as significant as those resulting from small no-take areas: As
harvesting contributes to community wellbeing it creates more buy-in to sustainable
fishing measures (Interview #14). Furthermore, a key indicator of sustainability at the
local level sets the bar high: populations of fish sufficiently abundant to be caught by a
hook and line fisherman (Interview #4). Situating this kind of fishery within an MPA
could increase First Nations support for the MPA designation significantly.
5.3.4 Collaboration and capacity building
In most circumstances the laws of federal or provincial governments will need to bolster
the protection of First Nation-driven MPAs, so collaboration between the First Nations
and the agency responsible for the enabling legislation will be essential. Where a
proposed MPA (or alternative designation) lies in shared territories, collaboration with
other First Nations may be required (Speaker #3).
An example of “bottom-up” collaboration in designating MPAs is the Northwest Straits
Commission in the US. Arising from a citizens’ initiative, the commission is made up of
county level committees and each of these has tribal representatives, commercial and
recreational fishermen, water dependent businesses, scientists, etc. The committees elect
71
Federal fisheries management has historically focused on single species or stock and involved a regional
approach, but ecosystem-based management is now a high priority for Fisheries and Oceans Canada.
72
Characteristics of artisinal fisheries include small boats, dispersed pressure and opportunistic harvesting.
Licence reform and/or court decisions that strengthen/extend First Nations fishing rights are required to
facilitate this form of fishery.
First Nations and MPAs on Canada’s Pacific Coast
57
the regional commission that allocates funding to the committees. The two MPAs that
have been created using this process are widely supported (Speaker #2).
The practical importance of collaboration is highlighted in capacity building.
Internationally, MPA agencies have tended to pay more attention to the developing
partnerships with indigenous communities in the planning and management of MPAs
than to investing in their indigenous partners to enable them to fulfill their customary and
partnership obligations (Smyth 2005). In BC, collaborative management arrangements
for provincial parks have been seriously under-resourced (BC Parks Legacy Panel 1999).
At the same time, successful cases of cooperation in BC coastal and marine protected
areas73 have had capacity-building elements.
In recent years, non-government organizations have had a role in building capacity for
environmental management in coastal First Nations. The Canadian Parks and Wilderness
Society signed a Protocol Agreement with the Tsleil-Waututh First Nation in 1999 and
the ENGO and First Nation worked together in GIS mapping and in the “Health of Indian
Arm” workshop in 2001 (Speaker #9). In connection with Hakai Luxvbalis Conservancy
Area, the Heiltsuk entered into a Protocol Agreement with Ecotrust Canada for a
community-led process to generate a conservation-based development plan that includes
economic development studies and monitoring the long-term health of resources to
ensure that the Heiltsuk people sustain themselves. Fundraising occurs jointly (Speaker
#3). In coastal communities on the Central Coast and North Vancouver Island, the Living
Oceans Society initiated a “local ecological knowledge project … using communitybased science projects and local ecological knowledge to generate interest around the
importance of engagement in ocean and coastal zone planning and enhance the capacity
of those that will ultimately participate” (Renehan and Sampson 2008). Initiatives such as
these build on the existing capacity of First Nations, many of which have expertise and
technology to apply – such as GIS mapping (Interview #7).
5.4
Regional and coast-wide initiatives
Situating MPAs in a broader context, be it an ecological, spatial or policy/planning
context, has much potential for addressing First Nations interests and concerns. This
potential is already being realized in certain integrated and collaborative initiatives on
Canada’s Pacific coast. These initiatives provide the opportunity for MPAs to result from
broader ventures to conserve marine ecosystems and sustain ocean resources – the
appropriate roles of MPAs emerge within an agreed framework, rather than having to be
justified on first principles by MPA advocates.
5.4.1 The need to put MPAs in context
From a First Nation perspective MPAs constitute a narrow focus for marine conservation:
“It won’t work to protect one area and do what you want everywhere else” (Interview
#13). Some have the mistaken impression that MPA proponents expect this one tool to
solve all the problems facing marine ecosystems and they emphasize that their entire
73
See section 5.2.3.
58
First Nations and MPAs on Canada’s Pacific Coast
traditional territory needs to be safeguarded rather than just the locations covered by
MPAs (Interview #11). Along these lines, at Race Rocks the Songhees, Beecher Bay and
T’Sou-ke First Nations were interested in a larger area than the initial one square
kilometre of seabed and water column proposed for designation as an MPA under the
Oceans Act. In response, an Area Management Board that would work with DFO was
proposed for a much broader area (Interview #2).
Nations in the Pacific Northwest asserted that “the creation of MPAs should not be the
‘goal’ in the absence of a demonstrated need for conservation … [and] must not be used
as a substitute for sound, sustainable management of marine resources, or, the restoration
of marine or freshwater habitats” (Tribal Policy Statement 2003). A disconnect arises
when ENGOs or government agencies appear to be promoting a particular mechanism
rather than addressing the core issues of marine conservation and resource sustainability
– “that’s where some misunderstanding comes in” (Interview #17).
First Nations are not the only critics of over-investment in MPAs for conserving marine
biodiversity. It is increasingly being argued that no-take MPAs “are considered solely as
a tool for specifying the location of fishing that does not address the incentives and
institutional structures responsible for overfishing” (P. Jones 2007). Accordingly, MPA
supporters have to be clearer that they promote MPAs as one approach among many
ways of pursuing the larger goal of protecting the whole marine environment and not as a
panacea for ocean problems. An easily communicated message along these lines that is
that MPAs provide a form of insurance against fisheries mismanagement and the
unknown or unpredictable factors that lead to collapse of fish populations. Ecosystem
based fisheries management and habitat protection measures outside the MPAs are still
important (Speaker #11).
Several researchers argue for complementary use of MPAs and conventional fisheries
management approaches because each is effective under certain conditions and each has
their own limitations (P. Jones 2007). However, given the array of fisheries conservation
measures (e.g., tagging, area closures, increasingly restrictive harvest limits, and controls
on mixed stock fisheries and by-catch), it is important to consider the potential for
cumulative impacts on First Nations harvesting. An additional risk is the continued
emphasis on management of the marine environment for fish production rather than
oceans health (Interview #12).
One model for placing MPAs in a broader context that takes a more balanced perspective
is Integrated Oceans Management, driven by Fisheries and Oceans Canada. This
approach, currently a focus of attention for some ENGOs and First Nations in BC, is
described below.
5.4.2 Integrated oceans management, PNCIMA
Under the Canada Oceans Act, integrated oceans management is being implemented via
planning for Large Ocean Management Areas (LOMAs).74 The process includes
provisions for protecting marine conservation values.
74
http://www.dfo-mpo.gc.ca/oceans/marineareas-zonesmarines/loma-zego/index-eng.htm
First Nations and MPAs on Canada’s Pacific Coast
59
One of the five LOMAs underway is the Pacific North Coast Integrated Management
Area (PNCIMA). The federal government has encouraged First Nations participation,
including the provision of funding early in the process (Interview #8, Interview #11).
Three main organizations represent First Nations: the Council of the Haida Nation,
Coastal First Nations and the North Coast-Skeena First Nations Stewardship Society.
From late 2003 to early 2005 the Coastal First Nations leadership worked closely with the
Oceans executive in Ottawa through a government-to-government process to harmonize
objectives outlined in the Oceans Strategy with the interests of the Coastal First Nations.
This work culminated in a framework agreement that outlines planning and governance
structures necessary to implement marine planning within PNCIMA.75
A Tripartite Collaborative Governance Model is under development for PNCIMA,
reflecting a high level of collaboration between the First Nations and federal and
provincial government agencies involved.
The PNCIMA process is moving forward slowly and has encountered resourcing
difficulties since funding was not earmarked for LOMAs in the federal budget. Some
First Nation participants fear a loss of momentum, and the ENGO community is pushing
to build political will to support the process (PNCIMA Watch76). At the same time,
government participants point out that LOMA processes take time – time to build a
knowledge base and time to build trust. And while the regional process proceeds, First
Nation-led, sub-regional and local marine planning are also making progress, as
explained in section 5.4.4, below.77
5.4.3 Coast-wide strategies
Canada-BC Oceans Memorandum of Understanding (MOU)
At an even broader, coast-wide scale, many share the view that a government-togovernment strategy for engaging with First Nations around MPAs could provide useful
direction. An agreement based on principles such as respect and established rights, setting
out a process for working together, would provide a foundation for moving ahead more
quickly as compared to having each MPA negotiation start from the beginning to address
the same broad issues (Interview #11). Other opportunities that such an agreement might
provide are facilitation of early dialogue on the potential interests of individual First
Nations in MPAs, ensuring that significant issues are addressed before embarking on a
public planning process and allowing regional processes to account for Aboriginal rights
and First Nations values and interests (BCAFC 1999).
One opportunity for a coast-wide strategy stems from the MOU Respecting the
Implementation of Canada’s Oceans Strategy on the Pacific Coast of Canada, signed by
the governments of Canada and BC in 2004. This MOU sets out the requirement for
subsidiary agreements to be developed, including one that commits the Parties to
establish a coast-wide system of marine protection areas (MPnAs) by 2012. As described
at the Coastal Zone Canada conference in 2008, this agreement, yet to be signed, will
75
http://www.coastalfirstnations.ca/print/activities/marineuse.html
http://pncimawatch.ca/who.html
77
As this document went to press, DFO was hosting a major PNCIMA workshop in Vancouver.
76
60
First Nations and MPAs on Canada’s Pacific Coast
include a vision for the MPnA system and a phased approach to implementation. A
process for review and assessment of existing protected areas in the marine environment
and future candidate areas will be followed by a gap analysis and identification of
candidate areas to fill gaps. Implementation is to be in consultation with First Nations,
non-government groups, and the public (Short et al. 2008).
Unfortunately, the federal-provincial MOU signed in 2004 missed an opportunity to
include First Nations, despite the fact that some First Nation organizations were
supportive of the initiative in its early stages. In 1999 the BC Aboriginal Fisheries
Commission78 made recommendations in response to a discussion paper, including that a
First Nations task group be established to lead discussions on the MPA strategy with the
federal and provincial governments, and that First Nation representation be sought at a
senior planning level. Perspectives on why the First Nations MOU initiative failed
include:
•
•
•
•
While other agencies may have been ready to sign the draft MOU, DFO refused because they
saw it as too radical and theoretical – lacking ways of working out issues with each First
Nation (Interview #3).
“A couple of senior level bureaucrats didn’t think relationships with First Nation were
needed” (Interview #11).
Government officials in Ottawa felt a coast-wide approach would put too much power in
hands of First Nations who, it was feared, would start blocking progress. At the same time,
their focus on legal obligations for consultation, based on (relatively low) standards set in
Ottawa, was not compatible with the needs of the Pacific coast (Interview #3).
Some First Nations felt that the MOU would not adequately take into account differences
between territories and Nations in implementation planning, given the highly varied
approaches being taken to aspects of the land-water interface at treaty tables or in other
modes of government-to-government relations (e.g. negotiations for individual MPA or
fishery co-management) (Interview #2).
BC Marine Conservation Analysis (BCMCA)
Meanwhile, cooperative technical analysis for the coast-wide approach is being
developed by a team of representatives from academia, First Nations communities,
ENGOs, the federal government and the provincial government, who are engaged in the
BC Marine Conservation Analysis project (BCMCA). First Nations have played a key
role in defining the terms of reference for the project, which aims to collaboratively
identify areas of high conservation utility and human use in BC’s marine waters.79 The
project emphasizes a scientific approach, using the MARXAN analysis tool, with
participants “leaving their hats at the door in terms of advocacy” (Interview #4). Experts
have been contributing data and ensuring their appropriate application to identify areas of
high conservation interest/utility (Royle et al. 2007). Representatives from the Nuu-chahnuuth, Coast Salish and Haida Nations have observer roles. Later, it is expected that subregional iterations of the model may incorporate traditional ecological knowledge
(Interview #4). Considerations of traditional territory boundaries can also be incorporated
in the analysis. The outputs of the BCMCA are expected to inform the implementation of
78
79
This organization no longer exists.
http;//www.bcmca.ca/
First Nations and MPAs on Canada’s Pacific Coast
61
the MPA sub-agreement under the federal-provincial MOU, although the BCMCA itself
does not advocate for MPAs.
The analysis may help build a compelling case for MPAs through a clear vision of what
is needed along BC’s coast. It has a reasonable prospect of leading to conservancy-type
MPAs distributed across First Nation traditional territories. At the very least, it provides a
venue for building trust, step by step, between non-native interests and First Nations
working together (Interview #4).
Fisheries forum and Fisheries Action Plan
The BC Assembly of First Nations, the First Nations Summit and the BC Union of Indian
Chiefs hosted a fisheries forum to work towards a fisheries strategy for BC First Nations.
The First Nations Fisheries Forum met in October and late November 2006, hosted by the
First Nations Leadership Council. In 2007 it held a joint forum with the federal
government to release the BC First Nation Fisheries Action Plan80 from the first two
forums. The plan deals with all aquatic resources, not only fisheries (Interview #15). One
of its “action areas” is “safeguarding habitat and responding to threats” (First Nations
Leadership Council 2007).
5.4.4 Marine use planning
Many coastal First Nations in BC have engaged in strategic land use planning for their
traditional territories, and several of these plans have a marine, or at least intertidal,
component – e.g. Lax Kw’alaams, Hul’qumi’num and Sliammon. These rarely go so far
as to identify areas of the ocean specifically for ecosystem conservation and their
emphasis is dominantly terrestrial. The Kitasoo have a Marine Use Plan (MUP) and the
Heiltsuk have a high-level integrated marine and land use plan. Examples of initiatives to
create plans that are marine-oriented underway at the time of writing are:
The West Coast of Vancouver Island Aquatic Management Board, which includes the Nuuchah-nulth, has a proposal that would lead to ocean and coastal zone planning, starting with a
two-year information collection stage (Interview #10).
The Hul’qumi’num are working on the framework for an MUP for the area of their statement
of intent (in the treaty process) (Interview #13).
The Coastal First Nations, the Council of the Haida Nation and the North Coast-Skeena First
Nations Stewardship Society are coordinating marine use planning in twelve coastal
communities, as discussed below.
•
•
•
Marine use planning has several benefits for First Nations, most of which dovetail with
MPA aims. These are listed in Box 8.
Box 8: Benefits of Marine Use Planning for First Nations in connection with MPAs
MUPs provide a clear explanation of the values that need to be protected in specific areas.
MUPs show how protected areas fit into a larger plan in a structured way.
MUPs consolidate First Nations interests in the marine environment, clearly communicating
community objectives.
•
•
•
80
http://www.fns.bc.ca/pdf/FNLC_FisheriesActionPlan.pdf
62
First Nations and MPAs on Canada’s Pacific Coast
•
•
•
•
Within communities marine use planning can transcend politics and draw the community
together around shared interests. The resulting cohesion can reduce concerns about impacts
from conservation measures (Interview #16).
MUPs can illustrate common ground as well as different points of view when MPA
proponents bring proposals to First Nations (Interview #14).
Marine use planning can draw connections between cultural subsistence and
economic/modern interests (Interview #17).
Driven by First Nations, MUPs can be fluid, adapting to change over time (Interview #13).
Three groups of First Nations have organized to implement a standardized approach to
developing “Community Integrated Marine Use Plans.” DFO has provided support to the
initiative through the Aboriginal Aquatic Resource and Ocean Management (AAROM)
program81 and a 2005 MOU with Coastal First Nations Turning Point Initiative.82 The
three groups are the Coastal First Nations Turning Point Initiative for the Central Coast,83
the Council of the Haida Nation for Haida Gwaii84, and the North Coast-Skeena First
Nations Stewardship Society for the North Coast.85 These organizations provide a point
of contact with the BC and Canadian governments, strategic direction, policy and
political support, and contacts with ENGOs; yet all report to the leadership of the
individual First Nations. At the regional level, each of the three groups has an area
Technical Team that provides advice to the local processes; multiple scale analyses,
objectives and strategies; and collaborative approaches. Each community has a Marine
Planning Team. Primary data is collected at the community level and rolled up, using
standardized methods of ecosystem-based management (Watkinson 2008).
Protected areas are one of many planning themes/issues arising in common among the
participating First Nations. Others include commercial fisheries, aquaculture, marine
transportation, culturally important areas, First Nation harvesting, resource rehabilitation,
tourism, upland use, industrial activities, offshore oil and gas, economic opportunities
and ecosystem health (Watkinson 2008). More generally, Community Integrated Marine
Use Plans may include:
•
•
•
•
a community vision for the marine territory;
values and perspectives on ocean resources;
goals, objectives and strategies for management of ocean resources and uses; and
special First Nation protection for specific areas.
Community Integrated Marine Use Planning is being undertaken in the context of
PNCIMA (though the First Nations would continue with marine use planning without
PNCIMA (Watkinson 2008)). The 2005 MOU mentioned above sets out a framework
agreement that outlines planning and governance structures necessary to implement
marine planning within PNCIMA.86
81
See section 6.3.5.
http://coastalfirstnations.ca/
83
Including the Oweekeno, Heiltsuk, Nuxalk and Kitasoo
84
Masset and Skidegate
85
Including the Haisla, Metlakatla, Gitga’at, Gitxaala, Kitsumkalum and Kiselas
86
http://coastalfirstnations.ca/activities/marineuse.aspx
82
First Nations and MPAs on Canada’s Pacific Coast
63
PNCIMA provides a good opportunity to bring together the Nations engaged in marine
use planning and the other governments and stakeholders of the region. But much of the
information being gathered in marine use planning by First Nations is at a small scale.
Responding to this scale of information taxes DFO resources since under Canada’s
Oceans Strategy, the department is directed to work from the large scale to the small
scale. In other words, DFO does not currently have the capacity to engage with First
Nations at the scale where their interests lie (Interview #8). As well, PNCIMA only
provides a large-scale set of institutional arrangements, so governance structures to
implement MUPs are lacking (Interview #8).
64
First Nations and MPAs on Canada’s Pacific Coast
6
THE OVERARCHING IMPORTANCE OF RELATIONSHIPS
MPA advocates need to continue to build relationships with First Nations if they are to
properly recognize, understand and address First Nations rights, concerns and interests
related to MPAs on the West Coast of Canada. Sections 3.2.2 and 4.1.1 described
negative experiences that coastal First Nations have had with conservation designations
in their traditional territories over the last few decades, resulting in frustration directed at
parks, protected areas and now MPAs. These negative impressions need to be replaced
with trust, which depends on the accumulation of positive experiences and cultivation of
healthy relationships. Even in the best of times, good relationships are pivotal to
collaboration on shared interests and to finding constructive solutions in areas of
divergence. Francis Frank of the Nuu-chah-nuulth summarizes as follows:
Relationship building is vital …, and to ensure good relationships we need to
understand and respect each other’s interests; work together and focus on
common values; and establish well defined roles and protocols to help guide the
relationships (in Gardner 2007).
The degree to which the potential of the opportunities in section 3 of this report and the
mechanisms in section 6 are realized depends on the quality of relationships. Most
ENGOs and government agencies are aware of this, and strides in relationship building
over recent years provide examples to build on (section 5.2.3 lists some). This section
draws from experience to generate some building blocks for good relationships in the
areas of shared understanding, mutual support and appropriate communications.
6.1
Shared understanding
6.1.1 Work towards cross-cultural understanding
Sections 2 and 3 of this report merely scratch the surface of the universe of First Nations
relationships with the ocean and rights and title in connection to MPAs. To adequately
appreciate First Nations culture and long-term bond with the ocean it behooves MPA
advocates to develop a level of cultural competency.
We come from very deep-rooted philosophies of our people – that has to be
understood. You need to know what that philosophy is if you want to understand
First Nations. … You are talking to people who have roots here (Speaker #6).
Full understanding of First Nations governance would require an understanding of the
culture, history, traditional knowledge, governance systems and philosophy of life that
have developed over hundreds of years (Speaker #4, Speaker #5). There is a vast
literature to explore. Scholars who have written extensively on Pacific Northwest Coast
indigenous communities include Wayne Suttles, Ronald Trosper, Nancy Turner, Charles
Menzies, Rosemary Ommer, Diane Newell, Lynne Pinkerton and Douglas Harris. At a
less ambitious level, those who wish to work with First Nations should at least acquire a
sense of this history. They need to challenge themselves to have a level of understanding
without necessarily becoming anthropologists – some cultural competence is essential if
they sincerely wish to work with Aboriginal people and agree on a shared direction for
First Nations and MPAs on Canada’s Pacific Coast
65
marine conservation (Speaker #5). This is the foundation for reconciling different
worldviews, values, and ideas about what conservation means and how it should be
carried out (Weitzner and Manseau 2001).
Myriad cultural themes could be explored. Stories of Aboriginal genesis focused on spirit
ancestors drive First Nations governance and other realms of society. For example, they
explain why there are three distinct tribal groups on Vancouver Island (Speaker #5).
Ritual and ceremony, imbued with a sense of reverence, play a large part in First Nations
government as well as spiritual life. For example, in some traditions they reaffirm that
clans originate from the transformation of creatures into man based in sacred sites
(Speaker #5). Traditional names, often with a specific dance, connect many First Nations
people with their culture and rights to territory (Speaker #3). Ocean resources play an
important role in the potlatch system, which has long provided a way of ensuring
accuracy in passing knowledge from one generation to the next (Hamilton and Wilson,
n.d.), among other purposes. The strong sense of connection with tradition does not mean
that First Nations are “frozen in the past” (Hamilton and Wilson, n.d.). Their culture and
laws continue to grow and evolve based on new experience as well as on renewed
connections with their heritage.
Ideally, cross-cultural understanding would be nourished in one-to-one relationships
between organizations promoting MPAs and First Nations. Elders and other in First
Nations communities often express the welcome: “come, sit down and talk to us.” Nonnative participants should take opportunities for dialogue and invest time learning about
the First Nation and their relationship with traditional territory etc. before launching into
negotiations or even seeking to work with them to create an MPA (Interview #11). What
is the connection of the First Nation with the ocean – is it through traditional song? What
are the connections to animals? (Speaker #5)
Ultimately, this understanding will have benefits for marine conservation measures as
well as for a constructive relationship if the rich indigenous customary, cultural,
traditional and spiritual values are used alongside biodiversity values to develop and
achieve holistic management of MPAs (Smyth 2005). The Historic Sites and Monuments
Board of Canada has accepted the concept of “Aboriginal cultural landscape” as a
framework for the recognition of Aboriginal culture and the integration of cultural
components with nature (Neufeld 2006). Perhaps a type of FSC harvesting-based MPA
could draw from this model.
While striving for cross-cultural understanding, MPA proponents should not assume that
success in this regard somehow merges worldviews. A cultural pluralism perspective that
acknowledges different experiences and ways of viewing the world is more appropriate.
6.1.2 Seek understanding of shared ENGO-First Nations interests
Cliff Atleo, president of the Nuu-chah-nulth Tribal Council, explained at the Big Eddy
symposium:
We have hurdles, but we aren’t going anywhere. We will continue to push our
values. Everything is possible if we begin to understand each other. Our chiefs
have come to the table prepared to share, with the understanding that we still
have unresolved issues. We need to look at the issues with balance and
66
First Nations and MPAs on Canada’s Pacific Coast
understanding. We want to be part of moving forward, but we also want to
understand each other (in Gardner 2007).
Although First Nations approach marine conservation from a very different perspective,
their interests have something in common with those of ENGOs (Interview #17,
Interview #18, Interview #13, Interview #8). They may have had positive interactions
with ENGO groups and some recognize the importance of protected areas (Interview #8).
Yet shared interests and good relationships can stop short in the area of MPAs. Opinions
as to what has caused this include the following:
•
•
•
•
•
•
Some feel ENGOs use too much rhetoric, promoting MPAs as a particular outcome, without
explaining how the tool works and how it affects First Nation interests (Interview #17).
Given the significance of rights and title, First Nations need to be able to engage with
government, more importantly than ENGOs (Interview #11).
In cases where the First Nation has goals that are not consistent with MPAs (e.g., following
an economic development opportunity), the ENGOs coming into their territory can be
perceived as interfering (Interview #13, Interview #8).
ENGO conservation initiatives may seem irrelevant to a First Nation: “It doesn’t matter much
to us what the environmentalists say – we live on these waters – it’s understandable that the
world is interested in conservation but we’ve been living it” (Interview #20).
Some First Nations do not fully understand what the issues driving the need for MPAs might
be when ENGOs seek to engage them on an MPA proposal (Interview #19).
ENGOs tend to begin dialogue with First Nations with a predetermined agenda. Driven by
their urgent need to protect remaining marine biodiversity, they appear to be in too much of a
hurry to convince First Nations of their perspective and not in a listening mode (Interview
#18, Interview #1B, Interview #1).
Suggestions to ENGOs for turning around the above dynamics and increasing the
potential for convergence around shared interests are listed in Box 9.
Box 9: ENGO modes of communication to increase potential for convergence with First
Nations
•
•
•
•
•
Instead of relying on rhetoric, respect First Nations rights, interests and concerns by taking
the time for careful consideration of alternative approaches (e.g. those explored in section 5).
Interest-based negotiation could be used to come to a shared understanding of what an MPA
comprises, along with local resource use rights (Weitzner and Manseau 2001).
Focus on working with First Nations who are supportive of MPAs, where there is an appetite
for collaboration, and accept that the ENGO may not take the lead in the initiative (Interview
#1).
Rather than trying to convince a First Nation in a hurried way, seek to understand what a
community’s interests are by spending time there, and “help the community understand
where you’re coming from – they are used to people who come in taking something from
them” (Interview #17).
Start the dialogue in a respectful way, without preconceived notions of where it will lead or
notions of support or acceptance of MPAs. Approach First Nations without an agenda.
Dialogue could begin with: “this is what we’re interested in … we think it would benefit, but
you guys have the authority and we’re not going to force the issue” (Interview #10); or “we
have an interest in protection of marine areas and we want to ensure support from First
Nations … in doing our work we have to talk to First Nations respecting rights and title and
we would also like to see what our common interests are” (Interview #21).
First Nations and MPAs on Canada’s Pacific Coast
67
If ENGOs take the time for dialogue with First Nations, areas of shared interest will be
confirmed. In the process, tools may be developed for working together “in cooperation,
in harmony, in respect” that will be useful for generations to come (Speaker #6).
6.1.3 Connect MPAs to First Nations interests
Many First Nations currently do not recognize MPAs as an important conservation tool,
yet they have a range of interests that dovetail with the benefits MPAs have to offer.87
There are positive ways that proponents of MPAs can connect MPAs to those interests,
despite the fact that First Nations peoples tend to see oceans conservation through a
different lens.88 An ENGO or government agency might be able to make a case for
marine conservation via MPAs if they build on the shared priority of protecting the
environment (Interview #14, Interview #11, Interview #17, Interview #1). Case study
research by Ban et al. (2007) found that First Nations are particularly interested in
ensuring food fisheries are protected now and for future generations, and in recovering
depleted species. They also saw an advantage in management zones that would exclude
commercial and recreational fishing in areas of importance for traditional fishing.
Because the majority of First Nations have virtually no experience of MPAs and may
hold a distrustful stance towards them, the case for benefits will have to be strong –
outweighing costs, both real and perceived (Interview #13). As one First Nation leader
put it:
The topic of MPAs is really tough because my people at this moment say what
does this mean? We need to hear what an MPA is – what benefit is there for First
Nations? How do we work so they are not used against First Nations? (Speaker
#6)
Working with individual First Nations, MPA supporters can frame scenarios for specific
benefits, combined with general benefits (Interview #1). The feasibility study or
regulatory impact assessment phases of MPA designation processes provide a formal
opportunity for this. Another avenue is to look at case studies, ideally bringing
indigenous people from places where MPAs have proved their advantages to visit First
Nations communities where MPAs are being or may be considered (Interview #17).
Clear communications can help First Nations understand the issues driving the need for
MPAs, if MPA advocates follow other good practices for relationship building described
in this section. They have to avoid, as mentioned above, using too much rhetoric, pushing
an agenda with a foregone conclusion, rushing things, and/or promoting MPAs out of
context. Despite their many selling points, MPAs are still best promoted as one marine
conservation tool among many – others of which might be more appropriate in a given
situation.
87
88
Potential benefits were explored in section 3.
See section 2.
68
First Nations and MPAs on Canada’s Pacific Coast
6.2
Mutual support
6.2.1 Support interests that are complementary and/or reciprocal
MPA advocates and First Nations have certain interests that are not equally shared, but
when recognized by one party or the other, strategic collaboration can leverage beneficial
results. Or, in a broader context of mutual support, a contribution with little expectation
of immediate gain to one party can help to build reciprocal relationships in the long term.
ENGOs in particular could usefully seek to identify opportunities to support First Nations
interests this way. Examples are:
•
•
•
Before linking conservation objectives to First Nations rights in litigative initiatives, ENGOs
should consider how the costs of legal advice would be covered. Overplaying confidence in
litigation to pursue shared interests risks First Nations being drawn into costly legal battles
that they cannot afford (Interview #13).
Acknowledging that rights and title are paramount, ENGOs could offer support in political or
legal realms or in treaty-related processes. However this is not a straightforward endeavour,
because the timing is difficult (Interview #11), many ENGOs strive to be a-political, and
positive influence resulting from the ENGO support may or may not result.
Recognizing the economic needs of many coastal communities, ENGOs can strive to make
economic contributions in connection with conservation initiatives, as described in section
4.3.3, or help in building capacity for environmental management in coastal First Nations, as
mentioned in section 5.3.4.
In all of the above interactions, care needs to be taken to avoid risks of hidden agendas,
exploitative activities, unmet expectations and/or misguided attempts to help.
6.2.2 Build relationships by working together
Relationships take an investment of time and effort to build. As one leader put it,
“Partnerships with environmental NGOs and other organizations need to be cultivated.
We literally need to work together” (Speaker #3). Another stated:
We have to sit down and talk together. Our hearts are always open. Sit down and
have a cup of coffee with our people and maybe we’ll get somewhere (Speaker
#10).
Every relationship has a different set of interests and how they go about working together
is unique. Awareness of the level of trust and respect that exists is pivotal (Interview
#16). Relationships may have been damaged by past experiences and, unless healing
occurs, the parties involved would rather pursue their goals autonomously (Interview
#16, Interview #6). The best approach is often to develop a relationship a day at a time or
an issue at a time by working together: “It will not happen through one manifest effort. It
will require a lot of work and cannot be rushed” (Speaker #5). As the First Nations
Outreach Coordinator for the Sierra Club BC [then Claire Hutton] put it: Listening is key.
The first thing I did was head up the coast and start hanging out and talking to folks.
What are now fully-fledged programs like the Coastal Guardian/Watchmen Network had
their seed in those first conversations” (Sierra Club BC 2009). This approach is based in
awareness that follow through on the Great Bear Rainforest land use plan depends on
First Nations and MPAs on Canada’s Pacific Coast
69
relationships with coastal communities – this is “the mortar that cements the whole
structure together” (Sierra Club BC 2009).
Parks Canada is also striving to model the “working together” approach, placing the
importance of establishing a long-term relationship above legal obligations stemming
from court decisions – though the latter set benchmarks which must be met in every case
(Interview #16):
The attitude Parks Canada has at the Southern Strait of Georgia NMCA is that they work with
First Nations. Their a priori goal is to establish a long-term relationship with the 19 Coast
Salish First Nations who have shown any interest in the park (Interview #16).
At Pacific Rim, Parks Canada’s relationship with First Nations is driven by trust and respect
rather than management structures like committees. One focus has been on activities that
benefit the park and communities by providing economic opportunities (Interview #16).
At Gwaii Haanas, Parks Canada has always been prepared to work with the Haida. An open
relationship, working closely together has been key to building a positive relationship
(Interview #8).
•
•
•
A current example of a step-by-step process for pursuing shared objectives while building
trust between First Nations and others interested in marine conservation is BCMCA.
Another, engaging all levels of government, is PNCIMA. Both are described in section
5.4.
6.2.3 Consider striking a formal agreement
While informal alliances founded in a working relationship and gradual progress towards
trust are often more than sufficient, formal arrangements have some advantages. Some
feel strongly about the utility of agreements: “First you have to build a relationship and
agreement and then move ahead together – that’s the right way to go” (Interview #11).
Adding structure can help clarify interests and objectives, define appropriate avenues of
communication (as explored in 6.3), and assure accountability. One First Nation leader
explained that if a larger ENGO wishes to engage with that Nation, a protocol is
necessary to set out the roles in the relationship and make it clear that the ENGO knows
the First Nation is the driver of the agenda (Interview #7).89 Formal agreements can take
a lot of time to develop but will have longer-term benefits, including helping to guard
against changes in community mandates when a new Band Council with different
priorities comes into power.
A relationship can be formalized via an agreement or the institution of a new body.
Variations on formal arrangements are limitless, and range from ad hoc to mandated by
law. Government-to-government agreements are more important to First Nations than
agreements with ENGOs. Examples of agreements have been mentioned in other sections
of this report:
Section 5.3.4 on collaboration in the context of First Nation-driven MPAs described the
success of the Northwest Straits Commission and a Protocol Agreement between the Heiltsuk
and Ecotrust Canada.
•
89
See section 5.3.4 for examples.
70
First Nations and MPAs on Canada’s Pacific Coast
•
•
Section 5.2 on shared authority for MPAs pointed out that co-management agreements can
provide a solid basis for partnerships with First Nations by establishing terms of reference
respectful of all parties’ rights and interests.
Section 5.4.3 on coast-wide strategies mentioned several institutional arrangements for
establishing broad agreements on MPAs and for marine planning.
Most of these examples go well beyond the now-standard inclusion of First Nations on
advisory committees for protected area planning and management. Nevertheless, such
committees are vital in most MPA establishment processes, and can greatly assist the
parties involved in building understanding and sharing knowledge.
6.3
Appropriate communication
6.3.1 Acknowledge differences between First Nations
There is a diverse array of First Nations on the coast. Understanding the differences
between them must be on a community-by-community basis. Even between First Nations
within broader alliances or tribal groupings there are many differences – for example
some may support salmon aquaculture while others do not (Interview #19). Areas that
will differ include:
•
•
•
•
•
•
•
•
•
•
•
•
governance, politics, protocols;
alliances with other First Nations;
legal factors such as treaty;
heritage, culture and language;
size of membership;
demographics, rural vs. small town or suburban locations;
socio-economic conditions;
values and views about marine resources;
activities, threats and opportunities in the coastal and marine environment;
policies, planning and projects underway relevant to ocean conservation;
levels of trust toward ENGOs or government MPA agencies; and
experience with MPAs and terrestrial protected areas.
While many First Nations are interested in MPAs, the interest level and receptiveness
varies between Nations along the coast. Some seem open to the notion of conservation
using existing approaches and designations while others are quite negative (Interview #4,
Interview #21).
Because of differences between First Nations, experience with one cannot be directly
transferred to another situation. Even approaches that have been successful have to be
adapted based on factors such as those listed above. Patience and openness to learning are
important (Interview #16, Speaker #4).
First Nations and MPAs on Canada’s Pacific Coast
71
6.3.2 Ensure the appropriate Nations are contacted
Any relationship will be strained if the MPA proponent starts a process by talking to the
wrong Nations – i.e. leaving out Nations with an interest in the marine area of concern
(Interview #11). Therefore, “the first question should be ‘whose territory is it?’” (Speaker
#5). Part of the explanation for delays encountered in designating the Race Rocks pilot
MPA is that certain First Nations in the area felt they had been left out of the process
(Interview #5, Interview #11). 90
The complexity of working with multiple First Nations was discussed in section 3.2.3.
MPA proponents need to be in tune with and sensitive to the dynamics between First
Nations in an area, particularly where there is shared territory, and be careful not to take
positions (Interview #19). Sometimes there will be protocols between the First Nations of
the area that provide guidance (Speaker #5, Speaker #4).
6.3.3 Engage with individual First Nation communities
If an MPA proposal concerns more than one First Nation, each Nation still has to be
contacted individually, building from the ground up (Interview #11). The larger
organizations can help access individual First Nations, as described in section 6.3.5, and
possibly respond to MPA initiatives at a regional or coast-wide level. However, anything
relevant to a particular territory, such as local fisheries issues, will be dealt with at the
community level – “The local First Nations don’t want some body or organization
representing them on their local issues” (Interview #15).
One First Nation advisor recommended the following (Interview #2):
•
•
•
•
•
•
Build relationships with individual First Nation communities.
Start working with the First Nation at the community level early.
If Chief and Council are in support, ask them who the opinion leaders are.
Organize a community point person as a contact in each of the communities in the area of
concern and pay them an honorarium.
If Chief and Council are in support, undertake community consultations asking people what
they want so that the membership can see how they are being involved.
Include youth in outreach about MPAs.
Building strong relationships with opinion leaders and other key individuals and groups
within communities can help transcend changes of leadership – given that elections for
Chief and Council occur every two years.
6.3.4 Practice cultural awareness in communications with First Nations and
don’t rush things
There is also potential to jeopardize a relationship by communicating with the wrong
individuals within First Nations. Again, this was part of the Race Rocks experience, in
90
Another complicating factor was that some Nations joined and others pulled out at different stages
(Interview #5).
72
First Nations and MPAs on Canada’s Pacific Coast
which DFO erroneously assumed a First Nations member on the Advisory Board was in
communication with the First Nations with an interest in the area (Interview #5).
The intricacy of First Nation communities can pose a challenge in that they may have a
treaty office, an elected Chief and Council, and a hereditary system all interacting in
governance – possibly with an economic development corporation as well. The
relationships between elected chiefs, house chiefs and other traditional leaders vary from
one First Nation to the next. Tapping initial contacts to understand the governance
structures and being as forthright as possible about the reason for seeking an entry into
the community can help (Interview #19).
It is usually appropriate to approach Chief and Council through the Band Manager,
thereby demonstrating recognition of First Nations authority and respect for rights and
title (see section 3.2). Chief and Council might choose to internally consider various
types of requests, including permission to engage directly with members and with elders.
Obvious people to link with would be Band Council members with marine resourcerelated (typically fishery) portfolios, and fishery staff persons. The leadership or their
staff may provide instruction on principles or protocols to guide interactions, as these will
be different for each band/Nation (Speaker #5, Speaker #4). Such guidance is particularly
critical in order to approach elders in an appropriate way. In many cases a hereditary
Chief or Chiefs is/are ultimately the most important point of contact, and there may be an
Elders’ Council or an arm of government lead by hereditary Chiefs.91 In other cases there
may be a designated speaker for a particular family or clan.
All these guidelines make sense in their cultural context, reinforcing the need for MPA
advocates to cultivate cultural and governance literacy. Cross-cultural awareness will
point to many practices for building trust and respect. Examples of good practices or
protocols are listed in Box 10. Some of these are drawn from a US report called
“Building Trust” (Adler and Birkhoff 2003). One suggestion from this source is:
Understand that ‘Indian time’ does not mean being late. It means that things get
done when they are meant to get done, and those who should be there are present.
Often, the person to whom you send written communication or of whom you
have a question will want to consult with others and this takes time. Even more
important, the American Indian concept of time is based in a fundamental
worldview that considers the ‘long term’ instead of the short term (Adler and
Birkhoff 2003).
Often relationships with First Nations take time to develop, time for trust to be built, and
time to be vetted through internal community consultative processes. A true partnership
may require investment “up front” before productive work can be undertaken. MPA
proponents need to adopt an open-ended approach in learning how to relate to a First
Nation community and what its concerns and priorities are. They need to be cognizant of
the fact that First Nations are often under-staffed, limited by capacity, and are trying to
address multiple major issues at once – from community issues such as housing to
government-to-government negotiations.92 Some First Nations may default to a position
91
In some cases this entity may be at odds with the elected Chief and Council, and ENGOs must tread very
carefully, respectfully and openly to find the right path.
92
First Nations leadership and staff have to cover the entire ground of modern government, with its
associated responsibilities and needs/requests for consultation.
First Nations and MPAs on Canada’s Pacific Coast
73
of mistrust and a feeling of “being used” if it appears an ENGO wants to come in, gain
local support for its agenda, and move on to the next campaign. As mentioned in section
3.2.3 under “Legacy of mistrust,” it is critical that ENGOs conduct their relations with
First Nations in an ethical, honest and transparent manner. For example, ENGOs must
convey the nature of their communications with First Nations accurately, rather than
modifying or “pitching” it in a self-serving way. All involved have to accept that it takes
integrity and patience to build genuine relationships that provide a foundation of trust.
A number of practices and protocols for building cultural awareness in communications
with First Nations can be found in Box 10.
Box 10: Culturally sensitive practices and protocols for building trust and respect
Acknowledge that many First Nation governments may have little capacity to engage with
MPA proponents due to shortage of resources and/or competing demands on their time.
Follow up written or electronic communication to First Nation leaders with telephone calls or
in-person contacts.
Allocate sufficient time for relationship building. Do not expect to build trust and local
support for an MPA quickly.
Try to ascertain who an individual represents; e.g., a family or a band, or whether they are
communicating as an individual, and do not over generalize.
Respect leaders in the way that any senior official deserves respect (e.g., as would be
expected with a Governor General or a Member of Parliament). When speaking to a group,
acknowledge/address higher ranking individuals preferentially.
Take into account that interpreters may be required for communications with individual
elders who are most comfortable speaking their native language.
Accepting different ways of communication, prepare to review seemingly extraneous data
and to discuss all aspects of an issue at hand simultaneously rather than sequentially.
Work alongside community members employed for the project at hand where possible, to
help build mutual understanding, to bridge to other community members, and to build
capacity in the community.
•
•
•
•
•
•
•
•
6.3.5 Link through umbrella organizations
In some aspects of communications, umbrella organizations can be used as a conduit,
without losing sight of the need to engage with individual First Nations (Interview #20,
Interview #4, Interview #21, Interview #10). Organizations such as tribal councils, given
their knowledge of their member communities, can help MPA supporters link with
appropriate individuals in communities. Care should be taken, however, in relying on the
accountability of the organization to its member Nations (Interview #11). Another risk is
that membership of the organizations changes over time, so they may not provide
continuity in linking with particular First Nations.
DFO has a program designed in part to streamline its consultations with First Nations: the
Aboriginal Aquatic Resource and Ocean Management program (AAROM).93 The
objectives of AAROM include strengthening relationships through improved information
93
http://www.pac.dfo-mpo.gc.ca/tapd/aarom_e.htm
74
First Nations and MPAs on Canada’s Pacific Coast
sharing between Aboriginal communities, DFO and other stakeholders and among
Aboriginal communities. The First Nations in the Race Rocks area established an
AAROM and the three First Nation groups engaged in PNCIMA are AAROM bodies.
(The role of the latter three in community integrated marine use planning is described in
section 5.4.2.)
The area technical teams established for the PNCIMA process may provide a conduit for
ENGOs to link with First Nation communities (Interview #4). If ENGOs work through
these technical teams to help them connect with specific individuals such as fisheries
officers, this can help avoid offending First Nations leadership who might otherwise see
the ENGOs as trying to circumvent them (Interview #21). Another advantage of working
with these teams is that they have already begun discussions on themes of marine
conservation, so community members are likely to be receptive to information
communicated via the teams (Interview #4). Essentially, existing communications
networks can provide a way to get introduced to existing information management
systems within First Nations governments.
Many coastal First Nations are not represented by the three organizations coordinating
with PNCIMA.94 Some of these have other organizations that can provide a bridge to the
communities and their leaders. For example, Uu-a-thluk is a Nuu-chah-nulth aquatic
management organization and initiative enabling 15 Nuu-chah-nulth First Nations to
work collaboratively with other governments and groups.95 Its governing body is a
council of Ha’wiih (hereditary Chiefs). This would be the appropriate organization
through which ENGOs should initially approach First Nations on the west coast of
Vancouver Island (Interview #10).
94
The three are the Council of the Haida Nation, Coastal First Nations and the North Coast-Skeena First
Nations Stewardship Society.
95
http://uuathluk.ca/
First Nations and MPAs on Canada’s Pacific Coast
75
7
OVERVIEW OF PROMISING APPROACHES FOR
COLLABORATION WITH FIRST NATIONS ON MPAS IN BC
There is much promise for convergence of First Nation, ENGO, and federal and
provincial government interests in marine conservation. All are concerned with the health
of marine ecosystems and the sustainability of ocean resources. MPAs have strong
potential as a key tool in this milieu, but there are some serious stumbling blocks with
respect to First Nations engagement.
The foundations for improving collaboration with First Nations on MPAs are: respect for
rights and title; strengthened relationships; clarity around the potential benefits and risks
of MPAs for First Nations; and situating MPAs in their broader ecological, spatial or
policy/planning context. If ENGOs and governments work authentically towards those
basic priorities, they can maximize the potential for earning support for MPAs from
skeptical First Nations and for effective collaboration with those that are open to MPAs.
This work also sets the stage for development of new tools or adaptation of existing
mechanisms that will achieve the benefits of MPAs while addressing First Nations rights,
concerns and priorities. Options with promise that particularly deserve support and/or
further exploration include: tailoring MPAs to address First Nations interests, shared
authority for MPAs, and pursuing MPA objectives at the regional and coast-wide scale.
All of these approaches, foundations or options, explored in detail in sections 2 through
6, are summarized below.
7.1
Respect Aboriginal rights and title.
Any contemplation of marine conservation has to recognize the First Nations
constitutionally-protected Aboriginal right to harvest and govern. Conditions for
infringement – particularly the conservation test, and the Crown’s duty to consult and, if
necessary, accommodate, are pivotal. Although meaningful consultation – governmentto-government – can be complex and challenging, it is critical to showing respect and rebuilding trust. A number of ways of achieving meaningful consultation in connection
with MPAs are listed in section 3.2.4 (e.g., make financial resources available to First
Nations to fully participate, develop consultation agreements suited to individual First
Nations, employ First Nations liaison officers at protected areas). In section 3.3.3, some
mechanisms for demonstrating respect for rights and title in MPAs are listed (e.g. ensure
a traditional use study is completed for each candidate MPA, link the MPA agenda to the
treaty agenda, negotiate interim agreements). Co-management and First Nations-driven
marine conservation are other avenues for recognizing rights and title. From a practical
viewpoint, the key imperative is not to proceed with MPA projects without the support of
affected First Nations.
7.2
Build relationships.
There is much bad history to overcome in building collaborative relationships with First
Nations, including the impacts of colonialism and negative experiences with fisheries
76
First Nations and MPAs on Canada’s Pacific Coast
management and protected areas in traditional territories. This is what makes relationship
building of overarching importance – it can begin to restore trust and as it does, it opens
avenues for collaboration on the marine conservation imperative. See Box 11 for a
summary of guidelines for building better relationships.
Box 11: Overview of guidelines for building relationships
To achieve shared understanding of interests, culture, and the potential of MPAs:
•
•
•
Work towards cross-cultural understanding.
Seek understanding of shared interests.
Connect MPAs to First Nations interests.
To develop and benefit from mutual support:
•
•
•
Support interests that are complementary and/or reciprocal.
Build relationships by working together.
Consider striking a formal agreement.
To follow appropriate means of communication:
•
•
•
•
•
Acknowledge differences between First Nations.
Ensure the appropriate Nations are contacted.
Engage with individual First Nation communities.
Practice cultural awareness in communications with First Nations and don’t rush things.
Link with First Nations through their umbrella organizations.
Sections 6.1 to 6.3 of the report set out ways of reaching the ends listed in Box 11.
Together, these approaches should ensure that past wrongs are increasingly replaced by
positive experience, trust, and working relationships that support collaborative marine
conservation.
7.3
Connect MPAs to First Nations interests and improve
awareness of concerns.
A third building block for moving towards a collaborative approach to MPAs (following
respect for rights and title, and relationship building) is the clarification of benefits and
risks that MPAs pose to First Nations. Specific areas of risk and opportunity are
summarized in Table 1.
First Nations and MPAs on Canada’s Pacific Coast
77
Table 1: Overview of MPA risks and benefits for First Nations
Theme
Risks
Benefits/Risk management
Fisheries
The threat of loss of First Nations access to
fish in MPAs is front and centre:
First Nations have a strong interest in
ensuring that species are not further
depleted by over-fishing, and many see
MPAs as serving a useful purpose as a
means of addressing fisheries
management issues that have not been
dealt with through other processes.
•
•
•
•
MPAs add to the existing suite of
regulatory restrictions.
First Nations need more, not less access
to marine resources.
Coastal communities suffer most of the
negative impacts of further limitations
on access.
First Nations activities are, or have
been, restricted in protected areas.
Even where policies provide for continuing
indigenous use of protected areas, First
Nation harvesting in MPAs will not
necessarily continue unabated.
To the extent that First Nations
recognize the potential fisheries benefits
of MPAs, they also know that realization
of these benefits depends on the strength
of conservation provisions. Regulations
and management provisions must be
rigorous enough to meet the
conservation objectives of the area.
Ecosystem
conservation
No risk: First Nations, ENGOs, and,
increasingly, the agencies responsible for
MPAs, share the ecosystem perspective in
oceans management and conservation.
Conservation of marine ecosystems is a
priority for all.
MPAs have some appeal to First Nations
as a means of protecting marine habitats
in their traditional territories from
development threats such as oil and gas
exploration and shore-based sources of
pollution.
Economic
considerations
Potential negative economic impacts on
First Nations from MPAs include: loss of
commercial fishing opportunities, loss of
local employment/development
opportunities and loss of long-term resource
development opportunities.
Income from conservation-based
enterprises must be captured locally.
There should be opportunities for jobs in
MPA management. ENGOs may be able
to provide economic benefits to First
Nations as a part of conservation
initiatives.
Risks to cultural resources are significant
Cultural
/archaeological because First Nations use and occupancy of
the coast was so extensive that the shoreline
sites
Ways of respecting First Nations culture
in MPAs include assessing recreation
and tourism impacts early, incorporating
respect for cultural heritage management
in goals and plans, and employing
monitors from First Nations.
is permeated by important sites, and
protected areas can increase visitation to
these areas.
Science,
information,
knowledge
Care required: Effective MPA management
requires drawing together various sources of
knowledge, from science to local and
traditional knowledge. It is essential to
respect traditional knowledge and access it
on First Nations terms.
Many First Nations have considerable
technical capacity, and the benefits of
MPAs to these Nations may include
strengthening the First Nations role in
marine conservation science.
Authority
The most significant concern of First
Nations regarding protected areas, along
with impacts on access to resources, is
potential loss of management authority –
which is connected to critical issues of
rights and title.
Shared authority and First Nation-driven
marine conservation brings First Nations
concerns and interests to the fore.
Essentially, First Nations need to be
recognized as resource managers and
owners, as well as resource users.
78
First Nations and MPAs on Canada’s Pacific Coast
7.4
Tailor MPAs to address First Nations interests.
Variations on definitions, interpretations and types of restrictions should be explored in
order to reconcile the difficult fit of MPAs with First Nations perspectives. Options
deserving further consideration in terms of their advantages, disadvantages and rationales
are summarized in section 5.1. These include the following.
No-take areas on First Nations terms:
No-harvesting zones cannot generally be imposed on First Nations – and closing areas to
fishing is beyond the experience of some. Nevertheless, under particular circumstances
they recognize the need to protect areas for certain species. Accordingly, First Nations
themselves might propose no harvesting zones for small, special areas. Measures limiting
harvesting are more acceptable if they: acknowledge that continued rights to harvest are
not extinguished, set a time limitation on the constraint, and/or do not record in writing
the First Nation decision not to harvest.
New terminology:
If the negative connotations of the term, “Marine Protected Area” cannot be overcome,
ENGOs and government agencies could consider working with First Nations to generate
a new name and concept.
Spatial and temporal flexibility:
Another possibility for adapting MPAs to suit First Nations priorities lies in spatial
flexibility of zones and boundaries using ecosystem-based management. Findings from
monitoring and research could point to adjustments in boundaries, size and location of
MPAs, consistent with accomplishment of conservation objectives. While impermanent
MPAs might not be acceptable to MPA advocates, the pros and cons of a sunset clause
that requires review of MPA effectiveness after a reasonable period of time (e.g. decades)
could be considered.
Accommodating food, social and ceremonial (FSC) harvesting:
MPAs under the Oceans Act have the flexibility to accommodate FSC harvesting, and
NMCAs may be flexible enough to provide for traditional harvesting within the required
fully protected area – e.g., through seasonal activities or fishing in the water column only.
Through effective management, zones in protected areas that accommodate this rightsbased use, but no other, can offer a high level of protection. Provincially designated
conservancies, which provide for First Nations harvesting, illustrate an explicit way of
accommodating First Nations FSC rights.
7.5
Encourage shared authority for MPAs.
The importance of the need for First Nations to have authority in protected area
management is on par with continued harvesting, as explained in section 5.2. First
Nations must be recognized as resource managers and owners, as well as resource users.
Shared authority can be achieved through collaborative management of protected areas,
First Nations and MPAs on Canada’s Pacific Coast
79
with true co-management distinguished by agreements that: provide for the practical
exercise of First Nations legal rights; recognize that both parties have their own
authorities, laws and protocols; and establish a relationship of shared responsibility.
While co-management arrangements that support shared authority are rare in BC, there
are several positive examples of cooperation in BC coastal/marine protected areas that
point in the right direction.
As co-management takes the First Nations role in MPAs beyond consultation, marine
conservation initiatives driven by First Nations, explored in section 5.3, extend even
further their role and authority. International experience, expressed in the movement
towards Indigenous and Community Conserved Areas, suggests that locally initiated
conservation, reversing the “top-down” approach, has much potential. First Nationsdriven MPA-type measures could employ effective management mechanisms towards the
conservation of biodiversity with the advantage of full First Nations support.
There is a natural convergence of First Nation-driven marine conservation with
community-based fisheries management. While a fisheries focus may preclude no-take
MPAs, the conservation benefits of an area in which only an artisanal style, FSC oriented
fishery is allowed might be as significant as those resulting from small no-take areas.
Marine conservation measures with shared authority or initiated by First Nations depend
on collaboration as much as mainstream protected area arrangements do. The laws of
federal or provincial governments will usually be required to support the protection of
First Nation-driven MPAs, and consultation between and within First Nations
communities is also important.
Collaboration may appropriately include ENGO contributions to building capacity for
environmental management in coastal First Nations through protocol agreements, joint
fundraising, and projects related to economic development, traditional knowledge and
other research and studies.
7.6
Situate MPAs in a regional and coast-wide context.
From a First Nations perspective MPAs constitute a narrow focus for marine
conservation. MPA proponents have to clarify that they promote MPAs as one tool
among many for pursuing the larger goal of protecting the whole marine environment.
Section 2.4 explains that the relationship of First Nations to the ocean is neither
preservationist nor utilitarian, but rather holistic, as expressed, for example, in Heshookish tsawalk (a Nuu-chah-nulth concept described in section 2.2.1). The conservation
science notion perhaps most parallel to this is ecosystem-based management, which
provides an over-arching framework that could help traverse cultural divides. Section 4.2
puts forward the promise of the ecosystem perspective.
Situating MPAs in a broader ecological, spatial or policy/planning context has potential
for addressing First Nations interests and concerns that is already being realized in certain
integrated and collaborative initiatives on Canada’s Pacific coast. Section 5.4 describes
current coast-wide and regional initiatives, including the Pacific North Coast Integrated
Management Area and the BC Marine Conservation Analysis. These initiatives present
good venues for relationship building and collaboration as well as providing vital
80
First Nations and MPAs on Canada’s Pacific Coast
information on conservation needs. Some also generate MPAs as outputs from an agreed
framework aiming to conserve marine ecosystems and sustain ocean resources.
Implementation of the Canada-BC MOU Respecting the Implementation of Canada’s
Oceans Strategy on the Pacific Coast of Canada96 (Fisheries and Oceans Canada 2004) is
intended to occur in consultation with First Nations, non-government groups, and the
public. The two governments should follow through on this commitment, keeping in
mind that engagement with First Nations has to be on a government-to-government basis.
Marine use planning driven by First Nations has several benefits, most of which dovetail
with MPA aims. These include providing a clear explanation as to why areas need to be
protected, illustrating common ground as well as different points of view when MPA
proponents bring proposals to First Nations, reducing fears of impacts from conservation
measures, and communicating First Nations interests. A coordinated initiative on the
north and central coasts and Haida Gwaii to produce Community Integrated Marine Use
Plans holds much promise for realizing these benefits, as well as the benefits associated
with First Nations-driven marine conservation. MPA advocates should strive to keep
abreast of this planning process so as to be prepared to collaborate when the First Nations
are ready. Communication through the Coastal First Nations, Council of the Haida Nation
and the North Coast-Skeena First Nations Stewardship Society would facilitate this, as
will ongoing involvement in the PNCIMA initiative.
96
http://www.dfo-mpo.gc.ca/oceans-habitat/oceans/ri-rs/bc-cb/index_e.asp
First Nations and MPAs on Canada’s Pacific Coast
81
8
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8.1
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Gardner, Julie. 2007. Big Eddy Ecosystem Symposium: Sharing Oceans Ecosystems –
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Gardner, Julia. 2001. First Nations Cooperative Management of Protected Areas in
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Goetze, Tara C. 2005. “Empowered Co-management: Towards Power-Sharing and
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Guénette, Sylvie, Ratana Chuenpagdee and Russ Jones. 2000. Marine Protected Areas
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Hudson, Boris Tyzuk, Kelly Francis, Wayne Bourque, Ralph Currie, and Killaine
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management in Canada’s national parks and national park reserves: voices from the
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86
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8.2
Cases
Claxton v. Saanichton Marina Ltd., [1989] 3 CNLR 46 (BCCA)
Delgamuukw v. British Columbia, [1997] 3 SCR 1010
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511
Lax Kw’allams Indian Band v. Canada (Attorney General), [2008] BCSC 447
R v. Gladstone, [1996] 2 SCR 723
R. v. Adams, [1996] 3 SCR 101
R. v. Badger, [1996] 1 SCR 771
R. v. Cote, [1996] 3 SCR 139
R. v. Marshall, [1999] 3 SCR 456
R. v. NTC Smokehouse Ltd., [1996] 2 SCR 672
R. v. Sparrow, [1990] 1 SCR 1075
R. v. Van der Peet, [1996] 2 SCR 507
Tsilhqot’in Nation v. British Columbia, [2007] BCSC 1700
First Nations and MPAs on Canada’s Pacific Coast
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9
INTERVIEWEES AND SPEAKERS
The interviewees and speakers are from the following First Nations and organizations:
BC Assembly of First Nations
Coastal First Nations Turning Point
Council of the Haida Nation
Gitga’at First Nation
Haisla First Nation
Heiltsuk First Nation
Hul’qumi’num Treaty Group
Hupacasath First Nation
Kwatuilth First Nation
Musgamagwa Tsawataineuk Tribal Council
Namgis First Nation
North Coast-Skeena First Nations Stewardship Society
Nuu-chah-nulth Tribal Council
Sencot’en C'A,I,Newel (Sencot’en Alliance)
Tseycum Council
Tsleil-Waututh First Nation
9.1
Interviewees
There were 22 interviewees in total (in 21 interviews):
•
•
•
11 interviews with advisors to First Nations in marine-oriented portfolios, some of whom are
non-native;
5 interviews with First Nations leaders (currently or formerly in a leadership position); and
6 interviews with federal and provincial employees engaged in marine conservation work
who have experience in interactions with First Nations, two of whom are from First Nations.
So as to maximize the comfort level of the interviewees to offer candid opinions based in
their own experience no request was made to quote them in the report. Accordingly, the
interviewees are cited with codes in the text to maintain anonymity. Some information on
the interviewees is provided below.
88
Interview #1
Central Coast First Nation leader
Interview #1B
Central Coast First Nation advisor
Interview #2
South Coast First Nation advisor
Interview #3
Parks Canada Agency
First Nations and MPAs on Canada’s Pacific Coast
Interview #4
First Nation organization
Interview #5
Fisheries and Oceans Canada
Interview #6
Vancouver Island First Nation leader
Interview #7
South Coast First Nation leader
Interview #8
Fisheries and Oceans Canada
Interview #9
Haida Nation leader
Interview #10
Vancouver Island First Nation advisor
Interview #11
Haida Nation advisor
Interview #12
Vancouver Island First Nation advisor
Interview #13
Vancouver Island First Nation advisor
Interview #14
Parks Canada Agency
Interview #15
First Nation organization
Interview #16
Parks Canada Agency
Interview #17
First Nation organization
Interview #18
Central Coast First Nation advisor
Interview #19
Provincial Government
Interview #20
Central Coast First Nation leader
Interview #21
First Nation organization
9.2
Conference/workshop speakers
Information is drawn from presentations or statements by 13 speakers at the following
workshops or conferences:
•
•
•
MPA Power Tools, Building the Marine Protected Area Movement from the
Grassroots Up, White Rock, BC, October 19-21, 2001, Living Oceans Society
Marine Conservation Strategy Session, Cortes Island, April 24-28, 2000, Hollyhock
School and Living Oceans Society
Musgamagwa Tsawataineuk Tribal Council (MTTC) and Living Oceans Society
(LOS), First Nations Workshop on Marine Protected Areas, February 25-26, 2004,
Alert Bay
Because the above records are unpublished, it could not be assumed that the speakers
would be willing to be quoted, so codes are used to maintain anonymity. Some
information on the speakers is provided below.
Speaker #1
State of Washington Fisheries
Speaker #2
Advisor to Tribes in Washington State
Speaker #3
Central Coast First Nation advisor
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Speaker #4
Washington Tribe advisor
Speaker #5
Vancouver Island First Nation leader
Speaker #6
Vancouver Island First Nation leader (same as Speaker #6B)
Speaker #6B Vancouver Island First Nation leader (same as Speaker #6)
Speaker #7
Lawyer
Speaker #8
Lawyer
Speaker #9
Environmental Non-government Organization
Speaker #10
Vancouver Island First Nation leader
Speaker #11
Anonymous First Nation
Speaker #12
Washington State First Nation
Speaker #13
Vancouver Island First Nation leader
The following proceedings of a BC-Washington oriented marine conservation
symposium are published:
• Gardner, Julie. 2007. Big Eddy Ecosystem Symposium: Sharing Oceans Ecosystems
– Bridging gaps between nations, science and management. Tin Wis Resort, Tofino,
BC, October 11-13, 2006. Report prepared for the Big Eddy Steering Committee
http://www.bigeddy.net/
Speakers cited in the text from the Big Eddy proceedings are:
Cliff Atleo, President of the Nuu-chah-nulth Tribal Council
Tom Mexsis Happynook, member of the Nuu-chah-hulth Tribal Council
Francis Frank, then President of the Nuu-chah-nulth Tribal Council
Simon Lucas, Hesquiaht First Nation
Micah McCarty, member of the Makah Tribal Council
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First Nations and MPAs on Canada’s Pacific Coast