Indigenous Law In Environmental Prosecutions

From time immemorial, Indigenous peoples in Canada have enjoyed a special relationship with their traditional territories:  they are the original stewards of natural resources and the guardians of biodiversity.  Members of Aboriginal communities continue to engage in traditional resource activities like hunting, fishing, and trapping, which place them in a direct relationship of dependence on land and resources.[1]

Because of this, many communities are especially vulnerable to environmental burdens. When land and water pollution, unsustainable forestry and harvesting practices, or large infrastructure projects affect lands that are sacred and important for Indigenous livelihood, prosecutions must bring in Indigenous laws related to the environment.


What Do Environmental Prosecutions Do For Indigenous Peoples?


Environmental protection laws establish standards that industries have to meet before and during operations. From factory emissions to waste disposal, these standards are put in place to preserve the environment. The idea that Aboriginal peoples have the right to enact protection laws isn’t original or exclusive to Canada; Article 29(1) of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), for example, declares:


Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.[2]

UNDRIP calls on states to honour and respect the Treaties and other agreements they have entered into with Indigenous peoples, to protect Indigenous languages and cultures, and to uphold Indigenous peoples’ rights to lands, territories, and resources. The Declaration affirms the inherent or preexisting collective human rights of Indigenous peoples, as well as the human rights of Indigenous individuals. It provides a framework for justice and reconciliation, applying existing human rights standards to the specific historical, cultural, and social circumstances of Indigenous peoples.   Articles 19 and 29 of UNDRIP, in particular,  refer to obtaining free, prior and informed consent of Indigenous communities where legislation or administrative decisions will affect rights and/or lands.


Indigenous communities have used environmental laws to protect the environment and exercise authority over their traditional territories to preserve customs. Using environmental prosecutions and self-governance actions in this context, Indigenous Nations have sought to protect their livelihood and cultural lands. Both the government and private corporations must consult and accommodate Indigenous groups when actions could have a negative environmental impact or infringe on established Aboriginal or treaty rights.[3]


Only recently have Canadian courts taken Indigenous voices on environmental policy more seriously. Through the common law duty to consult and accommodate with regards to resource development on or near First Nation lands, there has been a concerted effort to make environmental justice a key part of broader reconciliation.[4] But this has meant that Indigenous peoples have had to take up their cause to fight for what’s right. R v Kirby Offshore Marine Operating LLC is such an example, where a First Nation was able to get reparations in a traditional setting.


The Importance of R v Kirby Offshore Marine Operating LLC


On August 19, 2019, the British Columbia Provincial Court released the sentencing decision in R v Kirby Offshore Marine Operating LLC. A tug owned by Kirby Offshore Marine Operating LLC ruptured upon sinking, releasing 110,000 litres of diesel and 2,200 litres of lubes into the ocean. The defendant pled guilty to three charges under the Fisheries Act, Migratory Birds Convention Act, 1994, and the Pilotage Act.[5] But because the incident took place in territory sacred to the Heiltsuk Nation, the sentencing took on a unique character. 


The hearing took place at the community hall in Bella Bella, British Columbia and followed the traditions of the Heiltsuk Nation with a Talking Circle. “We requested the hearing to be here because the spill was here and we are here,” said Chief Marilyn Slett. In the Talking Circle, representatives from the Heiltsuk Nation presented victim impact statements and shared how the spill would affect the current population and future generations.[6]

The process also showed how our current system limits Indigenous law. Heiltsuk Nation called for the banishment of all ships owned by Kirby in their territory until the company acknowledged the harm done to the community and responded to their recommendations in the adjudication report. The presiding judge stated that he did not have the jurisdiction to enforce an order like this.[7] The defendant ended up paying the fees into an Environmental Damage Fund for the benefit of the Heiltsuk First nations to restore the habitat damaged by the spill.[8]


As the Heiltsuk Nation example shows, Indigenous law has limits with environmental prosecution under our current system. There are many challenges ahead, even while the Federal and provincial laws force industry to consult with First Nation and Métis communities during the assessment process.[9] Whether it’s a pipeline project that affects Indigenous Communities or the effects of climate change that will put pressure on everyone, more work needs to be done to incorporate Indigenous knowledge and governance systems into environmental protection.

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