COUNCIL OF THE HAIDA NATION

Submission to the Standing Committee on Fisheries and Oceans regarding Bill C-55, An Act to amend the Oceans Act and the Petroleum Resources Act

December 4, 2017 | Peter Lantin, President

‘Southeast Wind’, Robert Davidson I. OVERVIEW 1. The Council of the Haida Nation (“CHN”) has worked for many years and has established several protected areas in the ocean portion of our Territory. Subsequently, we have managed two of these areas, the SGaan Kinghlas/Bowie (“SK-B”) MPA and the Gwaii Haanas Haida Heritage Site, National Park Reserve and National Marine Park Reserve1 with the government of Canada. 2. The Haida Nation supports the intent of Bill C-55 and propose changes to strengthen the Bill. Below we provide the background to the Haida Nation’s marine territory, the importance of marine areas to Haida culture and identity, the importance of traditional knowledge and Haida laws and experience with co- governance of marine areas. We provide our recommendations for strengthening the Oceans Act, including support and explicit recognition of Indigenous co- governance agreements, protection of constitutionally protected Indigenous Rights, and minimum protection standards including probation of harmful activities.

II. BACKGROUND 3. The Haida Nation’s territory includes the islands of , the surrounding waters, sub-surface area and air space, as identified in the attached map (see Appendix 1, Haida Territory).2 The land and sea of Haida Gwaii has been our homeland since time immemorial. Haida oral traditions tell of our origin from the oceans surrounding Haida Gwaii. “We came out of the Ocean … all over Haida Gwaii ... we can point to and say this is where our ancestors came out of the ocean”.3

‘Southeast Wind and Foam Woman’ Robert Davidson

1 MPA is used here as a general term as reflected in Canada’s Federal Marine Protected Areas Strategy http://www.dfo-mpo.gc.ca/oceans/publications/fedmpa-zpmfed/index-eng.html 2 Haida Nation Constitution at http://www.haidanation.ca/wp-content/uploads/2017/07/Constitution-2017- 05.pdf. 3 Gaaysiigang: An Ocean Forum for Haida Gwaii. http://www.haidanation.ca/wp- content/uploads/2017/03/Gaaysiigang_72.pdf (“Gaaysiigang”), at page 9. Haida Nation Bill C-55 Written Brief | Page 2

4. Our name for these islands, Haida Gwaii, means the “islands of the people”. Haida Gwaii is an archipelago of more than 150 islands. More than 25 per cent of the archipelago’s “interior” is within 1 km of saltwater, and no place is further than 20 km from the sea.4 The seamless sea-to-mountaintop connection is an integral part of Haida heritage and cultural identity. 5. The influence of the ocean on the land base of Haida Gwaii is pervasive in Haida life, culture and history. Haida Gwaii has over 4,000 km of inlet and island shorelines.5 Every village is carefully selected based on the abundance of seafood and its marine geography: well protected harbours are selected for year- round or winter villages, and more exposed locations for seasonal summer camps.6 Sea creatures, from the most common to the supernatural, figure prominently in Haida art, design, and family crests.

‘ Walker’, Supernatural Snag, Ben Davidson 6. The bounty of the sea provides many Haida foods and medicines. Haida Gwaii is home to some of the richest marine environments on the planet. Perched on the continental shelf at the most westerly edge of North America, the archipelago is where Alaskan and Japanese Currents mix. Haida Gwaii and its surrounding waters sustain diverse marine habitats, from kelp forests and eelgrass meadows to sand flats, weathered rocky shores and the abyssal ocean depths. All seven species of Pacific salmon are a key source of nutrients transferred from marine food webs to the forest and a major factor in the high productivity of forest

4 John Broadhead, Riparian Fish Forest on Haida Gwaii (“Riparian Fish Forest”) at page 10. 5 Riparian Fish Forest at page 10. 6 Gaaysiigang at page 9. Haida Nation Bill C-55 Written Brief | Page 3

ecosystems of Haida Gwaii.7 Haida Gwaii supports numerous marine species including marine mammals, fish and .

Photo: Steff Olsen

III. HAIDA EXPERIENCE WITH MARINE PROTECTED AREAS 7. For all of these reasons, the protection of our marine territory, and the species within marine territories, has been one of the key mandates of the Council of the Haida Nation since its inception in 1974. 8. The Haida Nation has engaged in political action, negotiations and legal actions8 to protect our land and waters for more than a century. We have also negotiated and concluded with Canada and the Province of BC a variety of co-governance agreements (the “Haida Agreements”) for the entire terrestrial area, and portions of the marine area. As referenced in the recent judgment of the Federal Court of Canada in Haida Nation v. Canada, these agreements explicitly recognize dual assertions of sovereignty, title and ownership of both land and waters in Haida Gwaii by the Crown and the Haida Nation. The Haida Agreements include the following: a) The 1993 Gwaii Haanas Agreement, providing for cooperative management with Canada of the Haida Heritage Site and National Park Reserve covering a quarter of the land area of Haida Gwaii, in the southern area of the archipelago.9

7 Riparian Fish Forest at page 10. 8 Our litigation is the leading case on consultation and accommodation: Haida Nation v. (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511. We protected herring in: Haida Nation v. Canada (Fisheries and Oceans), 2015 FC 290 (“Haida Nation v. Canada”) at para 7. We are also actively engaged in active litigation regarding our entire territory, including the waters surrounding Haida Gwaii: The Council of the Haida Nation and Peter Lantin et al. v. Her Majesty the Queen in Right of the Province of British Columbia and The Attorney General of Canada, BCSC Action No. L020662. 9 Haida Nation v Canada at para 10(a). Haida Nation Bill C-55 Written Brief | Page 4

b) The 2010 Gwaii Haanas Marine Agreement, builds on the success of the Gwaii Haanas Agreement and includes the cooperative planning, operation, and management of the marine portion of Gwaii Haanas as both a Haida Heritage Site and Canada’s first National Marine Conservation Area Reserve (the “Gwaii Haanas Marine Area”) (the “Gwaii Haanas Marine Agreement”).10 c) The 2007 Strategic Land-Use Plan Agreement and the 2009 Kunst’aa Guu- Kunst’aayah Reconciliation Protocol11 with the Province of British Columbia, for shared and joint management of lands and resources of a quarter of the land area in the northern part of Haida Gwaii, including 74% of the coastline and some marine areas. d) A Memorandum of Understanding with Canada for the cooperative management and planning of the SGaan Kinghlas/Bowie Seamount (“SK-B”) area,12 through the Oceans Act and the Haida Constitution. 9. The Haida Nation recognizes that linking land and marine use planning is “undeniably critical for an archipelago such as Haida Gwaii.”13 In recognition of the importance of the oceans to the well-being of Haida culture and all communities in Haida Gwaii, since 2006 we have prioritized and made significant progress with marine use planning, traditional knowledge gathering, and community engagement to create a foundation for better knowledge and management of marine ecosystems. A. Traditional Knowledge and MPAs 10. Traditional knowledge is a cumulative body of knowledge and practice that is handed through generations and is based on experiences of people who for generations have occupied an area and managed local resources. Traditional knowledge is often collected at, and is more applicable, to smaller scales than western science and works on a longer time horizons, thereby enabling identification of long-term ecological trends.14 In the Northern Shelf Bioregion where there are gaps in scientific knowledge, traditional knowledge is integral to making informed decisions at all scales.15 Therefore, traditional knowledge must inform and guide MPA network design and all cooperative regimes. 11. The Haida Nation supports cooperative management of MPAs that honour the values, ethics and laws of the Haida Nation, summarized below: a) Yahguudang or Yakguudang - Respect for each other and all living things.

10https://www.pc.gc.ca/en/pnnp/bc/gwaiihaanas/info/index/~/media/662F1B36258E462DA46C2E8372B62 E3A.ashx 11 http://www.haidanation.ca/wp-content/uploads/2017/03/Kunstaa-guu_Kunstaayah_Agreement.pdf 12http://www.aceeceaa.gc.ca/050/documents_staticpost/cearref_21799/83896/Bowie_Seamount_Agreem ent.pdf 13 Gaaysiigang at page 18. 14 “Proposal for a Marine Protected Areas Network in the Northern Shelf Bioregion” Submitted by Coastal First Nations & North Coast Skeena First Nations Stewardship Society, July 10 2012, at page 9. 15 Ibid. Haida Nation Bill C-55 Written Brief | Page 5

b) Laa guu ga kanhllns - Acceptance of the responsibility passed on by our ancestors to manage and care for our sea and land and ensuring that our heritage is passed on to future generations. c) Gina waadluxan gud ad kwaagiida - Interconnectedness. Everything depends on everything else, across species and habitats and across spatial and temporal scales. d) 'Gild tll'juus — Balance is needed in our interactions with the natural world. Our practices and those of others must be sustainable. e) Gina k'aadang.nga gii uu tl' k'anguudang - Seeking Wise Counsel. Our elders teach us about traditional ways and how to work in harmony with the natural world. Together we consider new ideas, traditional knowledge, and scientific information that allow us to respond to change in keeping with culture, values and laws. f) Isda ad diigii isda - Giving and Receiving. Reciprocity is an essential practice in our interactions with each other and the natural and spiritual worlds. 12. In 2007, the CHN initiated the Haida Marine Traditional Knowledge Study to research and document Haida culture, traditions and knowledge of food, fishing and gathering areas, seasonal harvest patterns, sites of cultural and historical importance, and observations about species abundance and population trends. More than 4,000 locations and 150 marine species were recorded, with oral accounts and first-hand observations dating back to the 1920s. 13. The Ocean & Way of Life Map includes over 500 Haida names for ocean and freshwater bodies, settlements and supernatural beings, and presents some of the information compiled during the Haida Marine Traditional Knowledge Study (see Appendix 2, Ocean & Way of Life Map).

14. Haida Traditional Knowledge has been integral to management of two of these areas, the Gwaii Haanas Marine Area and the SK-B MPA. We recommend that the application of traditional knowledge and indigenous laws be one of the top priorities for MPAs and Interim Protection MPAs.

B. The Gwaii Haanas Marine Area 15. Gwaii Haanas is not an Oceans Act designated MPA but our cooperative management experience in Gwaii Haanas has relevance to our recommended amendments to the Oceans Act. 16. The intention to protect the Gwaii Haanas marine area was identified in 1988 when the South Moresby Agreement was signed, but it wasn’t until 2010 that the Gwaii Haanas Marine Agreement was signed and an interim management plan was approved by Canada and the Haida Nation. Haida Nation Bill C-55 Written Brief | Page 6

17. The Gwaii Haanas Marine Area is known as “one of the world’s ecological and cultural treasures”, containing nearly 3,500 marine species.16 Gwaii Haanas is the first area in the world formally managed from the mountain top to sea floor (nearly 5,000 square km), and is recognized as a rare and significant achievement nationally and globally.17

Photo: Steff Olsen 18. Under the Gwaii Haanas Marine Agreement, Canada and the Haida Nation have agreed that the Gwaii Haanas Marine Area “shall be regarded with the highest degree of respect and will be managed in an ecologically sustainable manner that meets the needs of present and future generations, without compromising the structure and function of the ecosystem.”18 19. The joint management board is responsible for “developing recommendations to the Haida Nation and the Government of Canada regarding any matters pertaining to the planning, operation, management or use of the Gwaii Haanas Marine Area”.19 A final integrated management plan, the Gwaii Haanas Land- Sea-People (“LSP”) Plan, is anticipated in 2018. C. The SGaan Kinghlas/Bowie Seamount (“SK-B”) Area 20. The SK-B is a range of undersea mountains, located about 180 km west of Haida Gwaii that rises to within 25 m of the water surface. It is a supernatural being whose name translates to “Supernatural being looking outwards.” The Haida Nation designated the SK-B area as a protected area.

16 Living Marine Legacy of Gwaii Haanas, Volume V: Coastal Zone Values and Management Around Haida Gwaii, [Ed.] N. Sloan, at page 234. 17 Haida Nation v Canada at para 12. 18 Haida Nation v Canada at para 15. 19 Gwaii Haanas Marine Agreement at page 5. Haida Nation Bill C-55 Written Brief | Page 7

21. Both the Haida Nation and Canada recognize the high biodiversity of this area and consider it to be critical fish and marine habitat, containing endangered marine species and many unique features and species. Canada has described this area as an “oceanic oasis in the , a rare and ecologically rich marine area.” 22. SK-B was identified as a DFO pilot project for MPA designation in about 1998, but it was not designated as a MPA under the Oceans Act until 2007. Part of the delay was due to the need to develop an acceptable co-management agreement between the Haida Nation and Canada. Currently the Haida Nation and Canada are jointly developing a management plan that defines acceptable and unacceptable uses within the protected area boundary, including requirements for research, monitoring and enforcement.

Photo: Steff Olsen

IV. RECOMMENDED AMENDMENTS TO THE BILL A. Co-governance of Marine Areas 23. Both the Haida Nation and the federal government have invested substantially in governance structures to support co-operative decision making under the Haida Agreements. Cooperative management provides a mechanism to balance Crown interests with Haida title and rights, maintain individual jurisdiction and authority, and jointly manage according to mutually-agreed-upon objectives. 24. The Haida Agreements reflect the biological and cultural importance of Haida Gwaii, and reflect the Parties’ agreement that Gwaii Haanas Area (terrestrial and marine) be managed to a higher standard with a lower threshold of risk. They are an exercise of the Haida Nation’s Title and Rights, including the right to manage the lands, waters and resources of Haida Gwaii and as such, give institutional expression to the Haida perspective on Haida Title and Rights. Haida Nation Bill C-55 Written Brief | Page 8

25. The Federal Court has upheld these agreements.20 The Federal government must honour these agreements and the Oceans Act must respect the governance structures developed under these agreements. Honouring these agreements provides the Federal government a unique and powerful opportunity to implement the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”)21 in a way that genuinely respects, and implements, reconciliation. 26. Both the SK-B and Gwaii Haanas areas would have benefited from interim protection and an accelerated timeline, which are not possible under either the existing Oceans Act or the National Marine Conservation Areas Act. 27. A critical challenge for MPA co-managers is the lack of authority to manage, restrict and close fisheries. In both National Marine Conservation Areas and Marine Protected Areas, Canada continues to manage fisheries under the Fisheries Act. Canada must enable and empower cooperative management boards to manage MPAs. 28. Fisheries activities must be consistent with management objectives and, in the case of Haida Gwaii, accountable to the Haida Agreements between Canada and the Haida Nation. This will avoid future litigation curtailing fisheries that are unsustainable or which result in degradation to sensitive benthic habitat. We recommend that the ability to manage fisheries be explicit in the Oceans Act and should not be circumvented by the lack of an effective mandate and regulations. 29. We agree with recommendations by West Coast Environmental Law (“WCEL”) to support Indigenous governance or co-governance of MPAs. In particular, the Bill should require specific legislative amendments that include explicit recognition of Indigenous governance rights and co-governance models, appropriate recognition of Indigenous Protected and Conserved Areas, and options for the monitoring and enforcement authority to Indigenous guardians.22 We also recommend an explicit statement that nothing in the provisions limits the constitutionally protected rights of Indigenous peoples.23 30. There is international precedent for this, in addition to UNDRIP. The IUCN provides an additional mechanism for recognizing locally designated Indigenous and Community Conserved Areas. These are defined as “natural and/or modified ecosystems containing significant biodiversity values, ecological services and cultural values, voluntarily conserved by Indigenous peoples and local communities, both sedentary and mobile, through customary laws or other effective means.”24

20 The model of collaborative management over Haida Gwaii, reflected in the Haida Agreements, was endorsed by the Federal Court in as providing “a structure for consultation with the Haida Nation which has the happy effect of blending competing jurisdiction claims…” Moresby Explorers Ltd. v. Canada (Attorney General), [2001] 4 FC 591 at para 74. See also, Haida Nation v. Canada at paras 51 to 53. 21 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, available at: http://www.refworld.org/docid/471355a82.html [accessed 7 November 2017]. 22 WCEL Submissions at p. 8. 23 WCEL Submissions at p. 8. 24 https://www.iucn.org/es/node/5328 Haida Nation Bill C-55 Written Brief | Page 9

31. There is also support for this in Canada: Indigenous Protected Areas were identified as an opportunity for Canada in the report “A New Shared Arctic Leadership Model” by Mary Simon, the Minister’s Special Representative on Arctic Leadership. According to Ms. Simon, “Indigenous Protected Areas are based on the idea of a protected area explicitly designed to accommodate and support an Indigenous vision of a working landscape.” B. Minimum Protection Standards 32. We recommend that the Bill include separate sections on sustainability principles, including ecosystem-based management and the precautionary principle. While the precautionary approach is mentioned in a recital of the Oceans Act, there is no definition or guidance on how it should be applied. The precautionary approach should be applied in the assessment of all activities occurring within a MPA. Both of these principles, and others, are expressed in Haida laws that guide Haida management of marine areas. 33. For the reasons set out below, we support the recommendation by WCEL for minimum protection standards under the Oceans Act. 25 34. We support WCEL recommendations for prohibitions on harmful activities:26 a) Oil and gas and mineral exploration and development - CHN supported the federal moratorium on oil and gas exploration in the 1980s.27 mining is a new issue that could have significant impact on ecological values in a MPA. No oil and gas or mineral exploration/development is permitted within the Gwaii Haanas marine area. As a result of the South Moresby Agreement (1988) between BC and Canada and the agreement to establish a “marine park”, industry relinquished oil and gas licences in the Gwaii Haanas marine area in 1997. In 2001, BC transferred seabed interests in the Gwaii Haanas marine area to the federal government. b) Wind farms and tidal power development – CHN supports this measure for high protection MPAs. The Haida Gwaii Marine Plan doesn’t allow renewable energy generation in high protection areas (IUCN category 1b, II, III and IV) Protection Management Zones (PMZs) but it is acceptable in IUCN category V and VI PMZs ( Inlet, Massett Inlet and Rennel Sound). The draft Gwaii Haanas LSP Plan does not currently address wind farms or tidal power development. c) Open net-pen aquaculture - CHN does not support salmon net-pen aquaculture.28 In the Haida Gwaii Marine Plan, off-bottom aquaculture of finfish is listed as not acceptable in the Recommended Use Tables for all PMZ categories.

25 WCEL Submissions at paras 6 and 27. 26 WCEL Submissions at paras 27. 27 Pursuant to Haida Nation Resolutions 1985-02 (which calls for a moratorium on offshore developments while the issue of title is being resolved); 1998-34 and 2000-08 (both reaffirm Haida Nation support for the moratorium on offshore oil, gas, and mining exploration). 28 Pursuant to Haida Nation Resolution 2004-1. Haida Nation Bill C-55 Written Brief | Page 10

d) Bottom Trawling – Until thorough studies are completed on Haida Gwaii to fully illustrate the impacts of bottom trawling in ecological sensitive areas, CHN does not support bottom trawling in interim and established MPAs.29 35. We agree with the recommended requirement that a significant portion of MPAs have a high level of protection and be closed to extractive activities, including commercial and recreational fishing.30 36. We also agree that ecological integrity must be the top priority for MPAs and Interim Protection MPAs.31 The Haida Gwaii Marine Plan32 utilizes an ecosystem based management approach. The draft Gwaii Haanas LSP Plan states that “The primary terrestrial management goal in Gwaii Haanas is to maintain or improve ecological integrity. Commercial resource extraction does not occur in the terrestrial area. The marine area is managed for the purpose of protecting and conserving ecological and cultural values. Commercial activities such as fisheries, however, may occur if they are conducted in a manner that is consistent with this management plan and does not compromise ecosystem structure or function.”33 37. Finally, we recommend that IUCN categories be assigned to MPAs for consistency (as used by the Haida Nation and British Columbia in the Haida Gwaii Marine Plan).34 CHN used IUCN classification in the Haida Gwaii Marine Plan and is updating the marine component of Haida Nation-BC Protected Area Management Plans to incorporate IUCN designations. Gwaii Haanas is not using IUCN categories but is using a roughly equivalent system. IUCN categories provide a common tool for comparison of progress towards MPA targets across jurisdictions.

V. CONCLUSION 38. In conclusion, the Haida Nation has breathed life into, and has taken the first steps towards implementing, our vision for a working seascape that includes a range of protected areas. A mechanism to recognize Indigenous Protected Areas through the Oceans Act or other Canadian legislation would provide an additional stepping stone to begin reconciliation of Indigenous and Crown jurisdiction to manage marine spaces, while also meeting and exceeding targets for marine protection.

29 Pursuant to Haida Nation Resolution 2014-12 for the protection and conservation of fish and marine habitats from bottom trawling. 30 WCEL Submissions at p. 8 and 17. 31 WCEL Submissions at paras 6 (iii), 11, 33 and 34. 32 Enacted pursuant to Haida Nation Resolution 2014-12. 33 Draft Gwaii Haanas LSP Plan, July 2017, at page 14. 34 WCEL Submissions at para 36. Haida Territorial Boundary relevant to Canada's interests including shipiping, MPA and Marine Use Planning Process Boundaries DRAFT for Discussion Purposes Only

Haida Territorial Boundary Gwaii Haanas NP, NMCAR & HHS Exclusive Economic Zone and Canada/USA International Boundary MaPP (regional) and PNCIMA CHN/BC Protected Areas (marine) Marine Planning Boundary Voluntary Tanker Exclusion Zone Haida Gwaii Marine Plan Haida Gwaii - MaPP Sub-regional Protection Management Zones Southern and Eastern Planning Boundary (outside CHN/BC protected areas) moratorium area boundaries (oil tanker loading/unloading) SGaan Kinghlas - Offshore Pacific AOI Bowie Seamount MPA

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