Signs of Summer by Kananginak Pootooogook
Signs of Summer by Kananginak Pootooogook

“It is through mysterious power that we have our being and we therefore yield to our neighbors, even to our animal neighbors, the same right as ourselves to inhabit this vast land.”

  Sitting Bull, Lakota Nation

“This is a powerful moment in history, and it’s a turning point for B.C. and Canada and First Nations. People working together to save a species from extinction — it’s real and we can do this — our new partnership agreement confirms it. I want to invite all people to join with us, support us, and help make it happen, for the future generations to come.” 

Chief Ken Cameron, Saulteau First Nation
 

Elders from the Saulteau First Nation (SFN) and West Moberly First Nation (WMFN) communities in Treaty 8 territory in northeastern British Columbia remember a time when thousands of caribou ran through their territories, so plentiful that they were “like bugs on the land.” However, the construction of the W.A.C. Bennett Dam in the 1960s and the associated flooding of key caribou migration routes, along with the cumulative impacts of other forms of industrial development, reduced the resident caribou populations to the very brink of extinction. By 2012, the Burnt Pine herd was completely extirpated and by 2014, the Klinse-Za herd was barely surviving; only 16 animals remained. According to SFN Chief Ken Cameron, the future of these few remaining caribou was so precarious that some community members thought of them as “walking ghosts.”

In 2014, the Dunne-za, Saulteau and Cree members of the two communities (with a combined population of about 1,700 band members) met along with elders, industry representatives, wildlife experts, non-governmental organizations and governments to discuss emergency measures to protect the caribou. As Cameron put it, “The caribou are our family, so it wasn’t a choice. We had to help.” Three clear priorities for action emerged: developing a maternal penning program for the caribou, managing the wolf population and prioritizing habitat restoration. 

Revitalizing Canada's Indigenous Constitution

By 2017, the communities had constructed and were operating a maternal pen and had begun their first habitat restoration project. As a result of these labour-intensive efforts, the Klinse-Za herd had more than tripled in size since 2014, growing to more than 60 animals. The successful emergency measures undertaken by the SFN and WMFN have given the Klinse-Za caribou a reprieve from extinction. However, a key question about the caribou’s survival in Treaty 8 territory remains: whose law will determine land use priorities in the region?

Indigenous Law and Caribou

For people who have been trained only to recognize Canadian state law as law, it can be difficult to see Indigenous law, even when it is operating in plain view. In a 2009 thesis, Hadley Louise Friedland put it this way:

"Indigenous law can be hard to see when we are used to seeing law as something the Canadian government or police make or do. Some people have even been taught that Indigenous people did not have law before white people came here. This is a lie. Law can be found in how groups deal with safety, how they make decisions and solve problems together, and what we expect people <should> do in certain situations (their obligations). They are often practiced and passed down through individuals, families and ceremonies. This is why many still survive, after all the government’s efforts to stop them and sneer at them. Because of the presence of Canadian law, and the lies and efforts to stop Indigenous law, some Indigenous laws are sleeping. It is time to awaken them."

Members of Treaty 8 have continued to apply their legal systems and exercise their legal rights and obligations in relation to the caribou even after the imposition of colonial law on their territories. One expression of this is the ban on hunting caribou that the SFN and WMFN implemented after the construction of the W.A.C. Bennett Dam and the flooding of the caribou migration route. 

As Cameron explains, “We’re living with the most powerful law on earth…[and it] means you preserve and save for future generations. Even with hunting and trapping, our people never went in there and just killed everything. We always made sure that animals were left alive so they could thrive for the future.”

Speaking to the generosity of the caribou, and the way in which caribou and people are bound together, WMFN Chief Roland Wilson stated, “In talking with the elders, they told us that the caribou would help our territories in times of need. Every piece of the caribou was used for something. The caribou were a pretty vital part of our culture, and if they disappeared a part of us disappeared. Because we can’t harvest the caribou, we’ve lost all that knowledge that goes with it. As caribou go on the endangered list, Indigenous people in the northeast go on the endangered list.”

Because of the presence of Canadian law, and the lies and efforts to stop Indigenous law, some Indigenous laws are sleeping. It is time to awaken them.
Ken Cameron, Saulteau First Nation Chief

The labour- and resource-intensive maternal penning program that is currently being operated by the SFN and WMFN is an expression of the deep bond that exists between the communities and the caribou. Each cow in the program must be netted, gently sedated, tagged and transported by helicopter from the wild to the pen, which encloses a large natural area of forest and meadow in a remote location. Once the caribou are in the pen, elders, school children and other community members from the SFN and WMFN go out onto the land to collect lichen in sacks to feed the caribou. In addition to capturing, transporting, feeding and otherwise caring for the animals, shepherds must be on duty at all times outside the penned areas to ensure that no predators get past the fence to the pregnant cows and their young. The cows and calves are released back into the wild after three or four months, as soon as the calves have matured enough to be able to fend for themselves and escape predators. One biologist who has been involved in supporting the program described the work as “conservation life-support” because of the intensive nature of the care required to keep the caribou herd viable.1

Competing Land Use Priorities

Prior to and subsequent to the signing of Treaty 8 in 1900, the Cree, Saulteau, Dunne-za and Dene inhabitants have governed the land according to their own legal orders. However, the imposition of settler law and land use priorities on Treaty 8 territory over the last 120 years, with its lack of emphasis on the needs of non-human species and prioritization of intensive industrial development, is threatening the survival of many species. The caribou, which are particularly sensitive to habitat fragmentation, are especially at risk.

In 2005, the WMFN sued the provincial government for issuing road building and coal exploration permits that failed to consider the cumulative impacts of industrial development on the caribou herds. Specifically, the WMFN argued that by failing to adequately manage the impact of cumulative industrial activity on the caribou, the province was violating West Moberly’s treaty rights to hunt and manage a species that is integral to the WMFN’s cultural and spiritual identity. In 2011, the British Columbia Court of Appeal issued a decision finding that the WMFN did have treaty rights that guaranteed the nations’ traditional mode of life, and the continuity of traditional patterns of activity and occupation, including the right to manage and harvest caribou. In the end, the mine did not go ahead, but the roadbuilding work and the bulk sample pits the mining company had constructed so fragmented the last areas of caribou habitat that the Burnt Pine herd was extirpated.

Co-jurisdiction over Caribou Habitat Protection

In the Canadian constitutional system of government, the provincial governments have jurisdiction over lands and natural resources, but the environment is an area of shared jurisdiction with the federal government. There is also a jurisdictional role for Indigenous peoples in these matters because section 35 of the Constitution Act, 1982, recognizes and affirms the treaty and Aboriginal rights of Indigenous peoples. This means that the federal and provincial governments must consult with, and accommodate the rights of, Indigenous peoples whenever those governments are contemplating a decision that could potentially infringe a treaty or Aboriginal right.

Under the federal Species at Risk Act, if a provincial government fails to take action to protect an endangered species or its habitat, then the federal government can step in and issue an emergency order. This has been done twice before to help save endangered sage grouse in Alberta and the endangered chorus frog in Quebec. In May 2018, Catherine McKenna, federal minister of environment and climate change, determined that there is an "imminent threat" to the recovery of southern mountain caribou in British Columbia. She is now required by law to recommend that the federal cabinet issue an emergency order to protect caribou and caribou habitat. 

It is not enough to be Indigenous and inherit an ethic of care. These teachings must be acted on by each generation.
John Borrows, Anishinaabe legal scholar

In that context, recognizing that maternal penning and wolf management are only short-term emergency measures that are not sufficient to revive and sustain the caribou herds over the longer term, the SFN and WMFN have negotiated a partnership agreement with the provincial and federal governments for the conservation of southern mountain caribou. The partnership agreement proposes significant new areas of low- and high-elevation habitat protection through park expansion that will be designated as an Indigenous Protected and Conserved Area (IPCA). The agreement also stipulates a moratorium on new industrial activities in high-elevation habitats and the establishment of an Indigenous Guardians Program to monitor cultural and environmental values in the IPCA. Finally, a government-to-government Caribou Recovery Committee will be struck, with representatives from the SFN and WMFN leadership, as well as from the provincial and federal governments. The decisions and recommendations of the Caribou Recovery Committee must be made by consensus and in accordance with the precautionary principle.      

This proposed new partnership agreement has been made public by the provincial government and is subject to a public comment period. A number of town halls to discuss the proposed partnership were held across British Columbia, and the provincial and federal governments received comments until May 31, 2019. It is expected that the partnership agreement will be approved by the federal and provincial cabinets and signed by all parties in June.

Rejecting Romanticization

While we celebrate the leadership and skill of the SFN and WMFN in leading the revival of the caribou on their territories, this essay does not intend to argue that Indigenous peoples are natural environmentalists. Such claims reinforce the damaging and constricting stereotypes that romantically depict all Indigenous peoples as living in perfect harmony with the earth. In his upcoming contribution to Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teaching, Anishinaabe legal scholar John Borrows writes:

"Indigenous peoples can be as destructive as other societies on earth — we are part of humanity, not outside of it. Caring for the earth is hard work; it does not always come naturally. Humans must consume to survive. Accordingly we must strive to attenuate our impacts. It is not easy to respect all forms of life. Even in small numbers humans can place great stress on ecosystems...we must acknowledge that Indigenous peoples are not necessarily environmentally sound by the mere virtue of their existence. As Indigenous peoples, we are not blameless. Our lands and waters can also be spoiled even where we have small degrees of stewardship and control. It is not enough to be Indigenous and inherit an ethic of care. These teachings must be acted on by each generation."

Racism

Unfortunately, the leadership of the SFN and WMFN in protecting caribou herds on their territories has resulted in a number of racist attacks on the communities, which have flared up in social media posts and in other venues. Chief Wilson and Chief Cameron have publicly called on British Columbians to denounce the racism and to challenge unfounded stories that are being circulated about the proposed agreements (for example, stories that suggest that the nations have ulterior economic motives for protecting the caribou). Chief Cameron has stated that “there are no hidden agendas, and there is no need to stoke racism in the Peace region. We invite everyone to read the agreements and provide comments in a spirit of respect and friendship.”

Conclusion

According to a 2019 article, "Saving Endangered Species Using Adaptive Management," the SFN and WMFN have developed the world’s most successful recovery program for endangered caribou. They started with 16 animals in 2014 and by 2018, the herd had grown to 80 animals. They have also successfully negotiated an ambitious government-to-government partnership agreement with British Columbia and Canada to ensure co-governed protected caribou habitat and the establishment of an IPCA and an Indigenous Guardians Program to monitor the habitat. In a global context where, according to a recent United Nations report, a million species are at risk of extinction, the successful leadership of the SFN and WMFN in reviving and protecting caribou herds on their territories provides a hopeful model that communities and governments in other jurisdictions may wish to learn from and emulate.

 

About the artist: Kananginak Pootoogook was an accomplished sculptor, designer, draftsman and printmaker from Cape Dorset and a prominent and involved community leader. He was instrumental in the formation of the West Baffin Eskimo Co-operative and served for many years as president of its board of directors. Pootoogook’s early work represents Arctic wildlife, often monumental in scale. He has also done many memorable images illustrating the material culture of the Inuit, and narrative drawings of camp and hunting scenes.

The authors would like to thank Chief Ken Cameron of SFN, Naomi Owens (director of treaty and lands of SFN) and James Hickling (lawyer for SFN) for sharing materials regarding the partnership agreement between the SFN, the WMFN, the Government of British Columbia and the Government of Canada.

1. PowerPoint presentation at James Hickling’s law office in Vancouver, March 8, 2019.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.
  • Hannah Askew is a lawyer of English and Scottish ancestry who practices at the intersection of Indigenous and environmental law.  She is currently the Executive Director of Sierra Club BC and a regular instructor at the Annishinaabe law camps led by Professor John Borrows for the Osgoode, University of Toronto, McGill and Windsor law faculties.

  • Bud Napoleon is a Cree Elder, trapper, hunter, traditional food gatherer and steward of Treaty 8 territory.  He served as Chief of the Saulteau First Nation for two terms, and was one of the founders and the first Chief of the Treaty 8 Tribal Association. He formerly worked for the Union of British Columbia Indian Chiefs. He was one of the founders of "Pemmican Days" for the Saulteau First Nation which continues to this day.