On April 4, 2016 the Gitanyow Hereditary Chiefs filed an amended Notice of Civil Claim in the BC Supreme Court seeking judicial recognition of their title to 6,200 square kilometres of the mid-Nass River and Kitwanga River watersheds in northwestern British Columbia. In this guest blog, Gitanyow Hereditary Chief Glen Williams/Malii and Tara Marsden/Naxginkw explain the significance of this case for the future of wild salmon ecosystems in the region, for their people, and for all Canadians.
Malii v. Her Majesty the Queen (In Right of the Province of British Columbia and the Attorney General of Canada)
The Gitanyow Hereditary Chiefs, on behalf of the Gitanyow Huwilp have re-launched our case for recognition of our Aboriginal title to the Gitanyow Lax’yip. The Huwilp is the collective of eight hereditary individual Wilp (House groups) organized into two clans: the Lax Gibuu (Wolf) and Lax Ganeda (Frog/Raven), who collectively own the Gitanyow Lax’yip (Territory).
Gitanyow has not signed a treaty, and has never surrendered our Lax’yip to any third party, government, or other First Nation. Our ancestors defended this Lax’yip in three historic wars, and in the contact period successfully prevented the surveying of the Lax’yip by colonial surveyors. Our predecessor Chiefs were so effective at running the surveyors and Indian Agents off the Lax’yip, well into the 20th century, that the only way the colonial government could establish a reserve in Gitanyow village was to imprison our Chiefs, and that is why Gitanyow is commonly referred to as the Oakalla Prison Reserve. In our view, and according to international legal principles, the Crown has yet to effectively establish its title to the Gitanyow Lax’yip.
Seeking a declaration of title from the Canadian courts is certainly not the first option or avenue that we have sought to resolve this dispute. Gitanyow has entered into numerous negotiations in good faith, from modern treaty negotiations to forestry and land-use planning, and reconciliation protocols. The common denominator driving the need for all of these approaches is the persistent Crown motive of denial, extinguishment, and attempt to subjugate Gitanyow title to the Lax’yip.
Map of Gitanyow Traditional Territories (courtesy of Gitanyow Hereditary Chiefs).
The Need for Gitanyow Title to be Recognized
While numerous examples of Crown and third party impacts to Gitanyow title are cited in the Gitanyow Notice of Civil Claim filed recently in BC Supreme Court, we would like to instead focus on the positive outcomes of increased Gitanyow management of our Lax’yip and its resources.
Wilp Gwaas Hla’am has a well-established right to fish for salmon on the Kitwanga River, a tributary of the Skeena River. With our existing title also comes the element of choice and consent, and management of the resource, as opposed to mere harvest rights. Over the past 30 to 40 years, the Kitwanga sockeye stocks saw a remarkable decline, causing Wilp Gwaas Hla’am to cease fishing on the Kitwanga in efforts to rebuild the stocks. Overfishing and poor management of the commercial fishery on the coast have been determined as the cause of the decline.
When Gitanyow became aware of the decline, efforts were made to pro-actively monitor the stock through the establishment of two enumeration facilities at the mouth of the river on Kitwancool Lake, and in the main river stem. Through 13 years of gathering scientifically defensible data, the Gitanyow Fisheries Authority has been able to effectively lobby the federal government to better manage fisheries on the coast in accordance with the Kitwanga sockeye run timing.
In the 13 years of this active monitoring and rebuilding effort, the Kitwanga sockeye run has recovered from near extinction to escapement rates that may soon support a food fishery for Wilp Gwaas Hla’am.
This is demonstrable evidence of the improvement of this critical food, cultural, and ecological resource because of the efforts of Gitanyow. This is a benefit – a benefit not only to Gitanyow, but also to Canada as whole with regard to how threatened resources can be better managed. When First Nations steward our natural resources, the benefits can be reaped for generations to come, and beyond our territorial boundaries. The fusion of Indigenous laws and sound science can yield more than the sum of its parts.
Gitanyow Indigenous Legal Tenets of Sustainability
In the Gitanyow Ayookxw (Laws), there exists the concept of Gwelx ye’enst. This is a unique concept tied directly to the Gitanyow case for title. Gwelx ye’enst is the right and responsibility of the Hereditary Chiefs and the Huwilp to pass on the Lax’yip in a sustainable manner from one generation to the next.
While many Canadians may understand Aboriginal rights as being more focused on fishing, hunting, and gathering, fewer understand the importance of Indigenous legal systems in protecting and managing the territories in accordance with ancient legal principles. Without these legal principles, the state of the land and resources would have been much different when Europeans first arrived.
And with the current state of the environment, depletion of species, and climate change, it is a return to and revival of these ancient legal principles that must happen. We believe that our title action will put us in the position to uphold our Ayookxw and the legal principle of Gwelx ye’enst.
What the Canadian Courts Say About Aboriginal Title and Sustainability
The way Gitanyow views our Aboriginal title has been echoed in the recent Tsilhqot’in Supreme Court decision of 2014. Notably different than fee simple or Crown lands, Aboriginal title “comes with an important restriction – it is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated…or encumbered in ways that would prevent future generations of the group from using it and enjoying it.” (para 74)
While the court may view this as a “restriction,” Gitanyow sees this as an opportunity. This is a significant opportunity to realize the vision of our predecessor Chiefs to ensure that Gwelx ye’enst was upheld, and to use the same legal system that imprisoned them for defending the Lax’yip to now recognize and reconcile Gitanyow title with Crown interests.
Simogyet Malii (Glen Williams) is the President of the Gitanyow Hereditary Chiefs. He was a recipient of the 2014 Andrew Thompson award from West Coast Environmental Law, recognizing his exceptional contribution to the fields of environmental and Aboriginal law and to the revitalization, recognition and enforcement of Indigenous environmental law. Contact: malii[at]gitanyowchiefs.com
Naxginkw (Tara Marsden) is from Wilp Gamlakyeltxw and is the Wilp Sustainability Director for the Gitanyow Hereditary Chiefs. Contact: tara.marsden[at]gitanyowchiefs.com
Top photo: Kitwankool Lake, Gitanyow Lax’yip (courtesy of Gitanyow Hereditary Chiefs).