PART FOUR

Reclamation

What are the specific practices and strategies Indigenous people deploy to enforce their visions of consent-based jurisdiction?

In this section, we consider case studies of communities developing, practicing, and attempting to enforce jurisdiction regarding lands and water in their territories. Categorized into three ‘types’ of strategies a variety of themes, but also challenges, emerge from this review.

This section of the report features 12 case studies grouped into three categories:

01. Environmental Assessment & Monitoring

Featuring: Tsleil Waututh and the Trans Mountain Expansion Pipeline, Stk’emlúpsemc te Secwépemc Nation Ajax Mine Assessment, Heiltsuk and the Indigenous Marine Response Centre and the Mi’gwawei Mawiomi Secretariat and the Chaleur Terminals

First, and at the earliest stage of development are environmental assessment processes. The case studies featured in this section each assess pipeline and transport of oil and gas infrastructure in their territories. They are the best examples for delaying of even stopping an unwanted development and asserting rigorous and evidence-based claims for their decisions.

In other words, they refused consent and backed their refusal with evidence that policy makers and investors could understand. A variation of environmental assessment, pursued post-development or post-disaster, is the case of the Heiltsuk and their response to the 2016 Nathan E. Stewart Oil Spill. But interestingly, environmental monitoring here has evolved into prevention as well, as the Heiltsuk strive to ensure, via a variety of jurisdictional tools, that their consent is respected before the next project unfolds. 

02. Consent Protocols and Permitting

Featuring: Neskantaga’s Development Protocol, Sakgeeng Consent Protocol, Saugeen Ojibway Nation and Nuclear Waste and Tŝilhqot’in Mushroom Permits

A second type of strategy reviewed here are formal protocols for providing consent, and then by extension a formal permitting system once consent has been enforced. Both occur during or immediately following development proposals. Neskantaga First Nation, the Saugeen Ojibway Nation and Sagkeeng First Nation have all developed a consent process for proponents of development in their territories. It is not surprising that each community, at the time of writing, is facing large scale and potentially transformative projects where their protocols are being put to the test and outcomes yet to be determined. The final example comes from the Tsilhqot’in, and while the scale of development for their mushroom harvesting permits is less invasive, it nonetheless points to a tool of jurisdiction that can be applied to a spectrum of resource and wildlife management.

“‘Give it back means to restore the livelihood, demonstrate respect for what is shared – the land – by making things right through compensation, restoration of freedom, dignity, and livelihood.”

– Sylvia McAdam Saysewahum (Cree, Big River Reserve, Treaty 6)

Nationhood Interrupted: Revitalizing nêhiyaw Legal Systems, UBC Press – Purich Publishing Ltd. 2015.

03. Re-Occupying the Land

Featuring: Tiny House Warriors, Uni’stot’en Healing Centre, Nimkii Aazhibikong and Sylvia McAdam Saysewahum & Sakaw Askiy Management Inc

A third, and perhaps more direct type of strategic assertion revolves around physical reclamation or occupation of lands and waters. While the other examples here emerge from community-based leadership (at least geographically), there are a number of cases of community members, in some cases working across national boundaries, attempting to exercise jurisdiction by occupying and using the land. 

And while they may disrupt Canadian jurisdiction, most provide a service to the community. The Tiny House Warriors provide low-impact housing solutions, the Unist’ot’en Healing Centre provides mental health and substance abuse treatment, and Nimkii Aazhibikong offers land-based education. The case of Sylvia McAdam Saysewahum is somewhat of an exception, though it demonstrates some of the challenges that occur when Indigenous people defending lands and asserting jurisdiction come up against other community interests. 

Implementing Indigenous Models of FPIC:

The case studies presented here offer some insight into effective strategies to get land back. Or, at the least, to enforce consent on Indigenous lands. But there are also challenges and considerations that accompany them. First, it should be noted that the communities featured here are, by and large, also communities with very strong title claims, meaning they are viewed as more legitimate by the Crown. Related, we hope it is clear that that these reclamation efforts do not exist entirely separate and distinct from Canadian legal, political and economic frameworks and discourses. While that may be the goal for some, there is much complexity. 

Indeed, many of these case studies are not about stopping development.

While Indigenous worldviews are often romanticized as exclusively anti-development, that is not the case. Still, these practices are wrapped up in the enduring and complicated conversations around the revitalization of Indigenous law and political transformation. Finally, this list is not exhaustive. Perhaps these examples can be thought of as “promising practices” in consent-based jurisdiction, across each of these three strategies.

To read the full analysis of this section, download the Land Back report.

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