First Nations aren’t able to simply accept land as a gift, says lawyer
CBC News: When Tara Martin was a little girl, she and her mother would launch a tin rowboat from Salt Spring Island, where they lived, and row between the many islands that dot the Salish Sea to go fishing. She remembers looking at a small and seemingly untouched piece of land called Halibut Island, also known as SISȻENEM, and wondering who owned it.
“In the springtime, I could see from the banks of the island that they were covered in wildflowers,” Martin told Unreserved host Rosanna Deerchild. “Having grown up on Salt Spring Island, a much larger island just around 20 kilometers north of the SISȻENEM, there were no flowers like that. And so I wondered what was going on on that island that [made it] such a bounty?”
Martin — who is now a professor in the department of forest and conservation sciences at the University of British Columbia — noted that SISȻENEM is a gem in the Salish Sea. No one had built a mansion on it, mowed it down to create farmland or turned it into a park. Instead, the nearly 10-acre island had thousands of years of stewardship by the Saanich, or W̱SÁNEĆ, people.
SISȻENEM is about to be the first piece of land given back to an Indigenous community through a land trust. But the process isn’t straightforward; there is no system in place to transfer lands back to Indigenous communities.
Noting the difference between SISȻENEM and the developed islands nearby, Martin said she came to realize the greatest threat to ecosystems in the Salish Sea had been “the removal of the ancient stewardship of these places.” “It was an eco-cultural landscape that had been tended for millennia…. Those forests were forest gardens [and] these meadows were gardens.”
When the island went up for sale two years ago, Martin contacted the listing agent and asked if she could do an ecological survey on the island, and he said yes. “You walk up the beach and you’re greeted with just this wall of wildflowers — camas up to my knees, pink incredible sea blush, lomatium, chocolate lilies, fawn lilies,” Martin said. “I knew immediately that this was an incredible island that had to be protected.”
To do that, Martin believed that SISȻENEM had to be returned to its original inhabitants — the W̱SÁNEĆ people. It didn’t take long for her to learn that giving land back to Indigenous peoples is more complicated than it might seem. But people like Martin are finding ways to make it happen.
Colonial legacies
Lorraine Land is a non-Indigenous, Toronto-based lawyer who specializes in Indigenous rights and environmental law. She regularly fields questions about how to give land back to local Indigenous people, and has spent a lot of time thinking about the barriers and difficulties to doing so.
Land said the challenges stem from long-standing beliefs enshrined in the Doctrine of Discovery. “So the Doctrine of Discovery is the premise that the European settlers and colonizers had that somehow Indigenous communities had no legal right or ability to own the lands that they lived on and stewarded and used, and that somehow the Crown or the the state… had the right to take up those lands,” Land said. “And suddenly, somehow, mysteriously, they became the lands of the state or of the Crown until they were in turn parceled off to be sold to individuals,” she added.
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After the Doctrine of Discovery came the Indian Act, which left First Nations with only reserve lands — but they don’t own these lands. “Those lands are owned by the Crown in trust for First Nations,” Land explained.
As a result, First Nations are not able to simply accept land back as a gift. So Martin, the W̱SÁNEĆ leadership council and the Land Conservancy of BC — a charitable trust with the goal of protecting biodiversity in B.C. — figured out their own way of returning the land back to its original stewards. Then, environmentalist and philanthropist couple David and Linda Cornfield donated approximately $1.5 million so that the Land Conservancy could purchase SISȻENEM.
Meanwhile, the W̱SÁNEĆ leadership council was creating its own land trust to hold the land title, once the Land Conservancy transfers it over in the coming months.
Three ways to give land back
Land says this method is one of three options to give land back to First Nations. The first method is for a First Nation to set up a corporation to hold title to the lands being returned. “A corporation is recognized in Canadian law as a legal person able to hold lands, but a First Nation isn’t,” she said.
Like the W̱SÁNEĆ leadership council, First Nations could also set up a trust, which is easier to do under Canadian law when the lands have some conservation value.
The last method would be for First Nations to get land added to their reserve. But that process can take decades because it’s bureaucratic and difficult, Land said.
Each of these approaches comes with responsibilities for the giver, Land noted. “There needs to be an investment of resources into making that process happen,” she said. There might be legal agreements to make, structures to set up and discussions about who pays taxes over time.
Despite the complications, Land sees the future looking very different. “It’s still a situation where there is a lot of potential for creativity, and I think we’re going to see better evolving models as time goes on,” Land said.
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Being on the land is a ‘blessing’
Eric Pelky, the community engagement co-ordinator of the W̱SÁNEĆ leadership council, has only seen SISȻENEM by boat. But he’ll soon be able to set his feet down on the island, where elders say his community’s ancestors used to harvest medicines. “What I’m really looking forward to is actually standing in a place that hasn’t been changed essentially in 150 years … and to appreciate the wild that is there,” Pelky said.
While the Land Conservancy is transferring title over to W̱SÁNEĆ leadership council, the organization will still have an interest in SISȻENEM. “We will be registering a conservation covenant on the property,” said executive director Cathy Armstrong. “So the Land Conservancy will continue to be on title … [and be] be a partner with the W̱SÁNEĆ leadership council.”
Armstrong said they’re doing this to make sure people like Martin will be able to use the island for research purposes. Pelky says he has fielded questions from his community about why the Land Conservancy isn’t simply giving SISȻENEM back to them with no strings attached.
“But from our standpoint, the first thing to do is get the land returned,” Pelky said. “Even though there’s a covenant on it, we can utilize that land for educational purposes. We can utilize that land for ceremony. And even the blessing of going out there and just being there for the day is something that can enrich a lot of our people.”
In fact, Pelky added, a tribal school is already “clamouring” to bring its students out to SISȻENEM to learn about the plants and see what restoration could look like on other islands in the area. To the W̱SÁNEĆ, the islands in the Salish Sea aren’t separate from the people — the lands are considered ancestors.
“We call [the islands] relatives of the deep,” Pelky said.
Laura Beaulne-Stuebing · Produced by Kim Kaschor and Rhiannon Johnson