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PLEASE DISTRIBUTE & POST Produced at the ’ Secretariat () on the Convention on Biological Diversity (CBD) 351 St. Joseph Blvd. 9th floor Hull, Quebec Canada K1A 0H3 Tel: (819) 953-5819 Fax: (819) 953-1765 Email: [email protected]

No. 21 The Monthly Bulletin of the Canadian Indigenous Caucus on the Convention on Biological Diversity April 2001

TRADITIONAL KNOWLEDGE AND In a meeting with a Ski Resort Owner who is operating on one of their 2 ABORIGINAL : sacred mountains, the elders made it very clear that : A View from the Interior “As with all peoples of Mother Earth, we too were given our ancestral homelands from the Creator and we continue to hold our territory as a sacred By: Chief Arthur Manuel, Neskonlith trust for the survival of our people, not only for this generation, but for all Chairperson Shuswap Nation Tribal Council future generations of Secwepemc. Our people have suffered and endured poor Chairperson Interior Alliance treatment from the non-Secwepemc for many generations now. We have seen Co-Chair Delgamuukw Implementation Strategic Committee our title and rights ignored, our way of life attacked, our lands damaged and fenced in, the fish, game and plants we depend on depleted, and we have seen 1. Indigenous Peoples and Biodiversity our children suffer because of all this. In the time we have left on Mother Earth When overlaying maps of ecosystems and concentrations of biodiversity we want to see that our people finally get justice.” with maps1 of the traditional territories of Indigenous Peoples or ethno-linguistic groups, it becomes apparent that the zones with the greatest biodiversity worldwide coincide with Indigenous Peoples’ traditional territories. This is evidence that 2. Human Ecology Model and Ongoing Use approaches to the conservation and sustainable use of the environment have to be The Secwepemc, known by the settlers as Shuswap, recently conducted a developed in collaboration with Indigenous Peoples. traditional and current land use study3 in two communities - Adams Lake and Neskonlith - that demonstrates the complexity of the Secwepemc environment and The Interior Alliance has therefore devised a scheme for the the Peoples’ close relationship to their traditional territories. involvement of Indigenous Peoples in land use planning of their traditional territories. Ecosystem-based studies of traditional and current land use have been The research used a human ecology model of the landscape. This type of conducted by certain groups but they need to be more comprehensive. The next model connects environmental factors with patterns of human behaviour. The result step is implementation of the findings which ideally would lead to the co- is a description of the landscape that includes the natural and cultural dimensions. management of the land as prescribed by the . The following legal analysis will show that present Canadian policies regarding With the help of elders and land users, seven bioclimatic zones or units of violate not only the Canadian constitution but also the region were defined. They are: alpine, montane parkland, montane forest, international law, like the Convention on Biological Diversity (CBD). intermediate grasslands, river terraces and flood plains and river valleys. An inventory of the flora and fauna of each unit was carried out, as well, the use of the The Interior Alliance represents 5 Indigenous Nations (Southern Carrier, areas according to the traditional Secwepemc calendar was described. the St’at’imc, the Nlaka’pamux, the Secwepemc and the Okanagan) and their constituent communities. The combined territories of the Interior This information was collected through a series of interviews with land Alliance Nations cover almost one third of the south central interior part of the users, elders and band members of the two communities. Detailed personal use data province of and beyond. They have never signed treaties, ceded is unpublished and the highest confidentiality standards were applied. The fact that or surrendered their respective land rights over their traditional territories to Great all the information is part of the traditional knowledge of present generations and has Britain, Canada, the , or the present day provinces of British Columbia all been extracted from interviews shows the strength of those traditions. Traditional or Alberta. knowledge is the basis for the current multifaceted use of the land by the Secwepemc People. Elders made clear analysis on how their customary use activities over their The Chiefs act under the direction of the elders who hold immense life time have been impacted by commercial industrial activities in their traditional amounts of traditional knowledge which is the basis for all ongoing use and territories. Generic maps delineating current uses were submitted to the provincial sustainable development. government so they can be taken into account in their land use planning. 3. Aboriginal Title A major stumbling block in securing Indigenous co-management and sustainable development of their traditional territories involving their traditional Since 1871 when British Columbia became a part of Canada, the knowledge is the federal government’s refusal to recognize Aboriginal title. Surren- province has maintained its practice of allotting land to settlers and compa- der of Aboriginal title has been the sole aim of the federal government before and nies without taking Indigenous Peoples’ use of and access to the land into since the Delgamuukw decision. Instead of recognizing Aboriginal Title as mandated account. Under the Canadian constitution provinces have exclusive jurisdic- by the Supreme Court they have even pushing harder for the conclusion of tion over land use, only lands reserved for Indians fall under federal jurisdic- agreements under their present land claims policy, the 1986 Comprehensive Claims tion. Still the provinces were backed in this practice by federal policies that Policy that still requires the extinguishment of Aboriginal title not the recognition, did not recognize the inherent land rights of Aboriginal Peoples. Coupled with accommodation and implementation of Aboriginal title as now protected by the other policies, such as the forced removal of Indian children from their Canadian constitution. families and their education in residential schools, traditional knowledge, its transmission and multifaceted use activities of the communities has been The Interior Alliance has actively lobbied for the recognition of Aboriginal impacted with devastating results. title at the local, provincial and national level. Together with the Assembly of and all major Indian organizations of British Columbia, the Interior Alliance Indigenous Peoples have always opposed the present land policies has rejected the 1986 Comprehensive Claims Policy and called for its revision. of the governments. In 1997, they were joined by the Supreme Court of Canada, who on December 11th of that year issued the landmark Delgamuukw 4. International Involvement decision4 recognizing the collective proprietary interest of Indigenous Peoples in their traditional territories as Aboriginal title. To date, the Minister for Indian and Northern Affairs has refused to revise their present land claims policy. This leaves no further mechanism open on the The court also held that the power of the federal government national level to secure the recognition of Aboriginal title. Therefore, the Peoples of regarding lands reserved for Indians extended to Aboriginal title lands5. They, the Interior are once again taking their concerns to the international arena. in return, have a responsibility6 to “safeguard” Aboriginal title lands, as per their exclusive federal jurisdiction under section 91(24) and section The Indigenous Peoples of the Interior have always been actively 35(1) Constitutional authority7. The last provision recognizes the rights of involved in the protection of their traditional territories and knowledge, and Aboriginal Peoples and extends constitutional protection to them. The especially since the emergence of international Indigenous and environmental following points are central characteristics of Aboriginal title: movements. Important markers in the environmental movement are the 1972 UN · Aboriginal title is a right to land. Conference on Human Environment in Stockholm and the 1983 World Commission · Aboriginal title is a interest. on Environment and Development which resulted in the Brundtland Report in 1987. · Aboriginal title is a collective right. All this activity set the stage for the United Nations Earth Summit that was held in Aboriginal title is sui generis, or unique. 1992 in Rio de Janeiro. Many Indigenous representatives, including those from the Interior of British Columbia, were present at the conference. The Supreme Court of Canada recognized that since the time of 9 contact with Europeans, Indigenous Peoples had always maintained their Agenda 21 , the political Action Plan that was developed at the Earth Aboriginal title, jurisdiction, rights and interests over their traditional Summit, takes into account the fundamental rights of Indigenous Peoples to their territories. The Nations of the Interior never surrendered or extinguished lands and resources. Article one of Chapter 26 entitled “Recognizing and strength- their title. Section 35 of the Constitution that gives Indigenous Peoples the ening the role of Indigenous People and their Communities” reads: right to the co-management of their traditional territories must be read Indigenous people and their communities have an historical relation- together with the right that has been made clear in the 1997 Delgamuukw ship with their lands and are generally descendants of the original decision8: inhabitants of such lands. In the context of this chapter the term “lands”; is understood to include the environment of the areas which “For the first time, the right of Aboriginal Peoples to the people concerned traditionally occupy. participate as equal partners in resource development on Aboriginal lands has been The consistence and understanding displayed in that political action plan acknowledged. But for this new partnership to work, clearly sees the need for the recognition of land rights to ensure the protection of the federal and provincial governments will have to traditional knowledge. Unfortunately, this was not as clearly written in the legal shed out-dated attitudes and accept the new legal instruments that emerged from the Earth Summit, especially the Convention on landscape.” Biological Diversity (CBD), which more than 175 countries are party to.

No. 21 The Monthly Bulletin of the Canadian Indigenous Caucus on the Convention on Biological Diversity April 2001 5. The Convention on Biological Diversity Article 8(j) has to be seen in conjunction with the rest of the CBD, against the background of the political discussions held in Rio, in the enshrined text in Agenda Nevertheless, the CBD is significant to Indigenous Peoples in a 21, and with the various Indigenous Peoples’ documents and declarations. This context number of ways. First, it recognizes in the preamble the “close and traditional makes it very clear that the protection of traditional knowledge as foreseen in article dependence of many Indigenous and local communities embodying 8(j) can only be implemented if other , especially land rights are traditional lifestyles on biological resources.” This points to the intimate recognized and implemented at the international and national level. connection between Indigenous Peoples and their territories. 6. Implementation in Canada Second, it encourages Parties in article 10(c) to “protect and Repeatedly in discussions at CBD meetings and in the Canadian Indigenous encourage customary use of biological resources in accordance with Caucus the need for the recognition of inherent land rights, like Aboriginal title, has traditional cultural practices that are compatible with conservation or been brought up. At the last meeting of the Canadian Indigenous Caucus (November sustainable use requirements.” By protecting customary practices, Parties are 2000), Chief Dan Wilson, Chairperson of the Okanagan Nation Alliance, a member of also protecting Indigenous Peoples’ right to practice their own culture. This is the Interior Alliance, requested that an analysis of the CBD’s article 8(j) and related in reference to fulfill conservation goals, and not their human rights commit- provisions and the Delgamuukw Decision be undertaken. The CBD, with reference to ments. Needless to say, the protection of human rights has been enshrined in article 8(j), could be an important instrument for the protection of traditional knowl- other conventions. edge as long as Aboriginal title is also recognized. Third, the CBD encourages Parties in article 14 to implement environmental impact assessments of proposed projects and “where appropri- Many community members still live off their traditional territories, relying ate, allow for public participation in such procedures.” In many cases, such upon fishing and to ensure a balanced diet for their families and cultural projects take place on Indigenous Peoples’ territories, and so this clause maintenance. Logging and other economic-driven activities have destroyed, and encourages their participation in project decision-making to some extent. continue to, the terrestrial and aquatic ecosystems. This has forced more and more Article 14 also includes the issue of restoration and compensation for damage to Indigenous Peoples to assert their Aboriginal title and rights to protect their traditional biological diversity, which often is an issue for Indigenous Peoples and develop- territories. ment projects. This is also why Indigenous Peoples have become involved at the interna- Fourth, article 15 sets up a framework for access to, and the sharing tional level in efforts such as the CBD to ensure the conservation of their lands and of benefits from, genetic resources. As was noted at the onset of this essay, the waters. The fundamental role that Indigenous Peoples, as the holders of traditional majority of biodiversity is located on Indigenous territories and this is of special knowledge, have in developing sustainable land use plans has been recognized concern in tropical and southern areas, where is common. internationally. Unfortunately, the CBD assigns authority over genetic resources to States, and Indigenous Peoples are not mentioned in this article. The article does, however, If Canada really honored the interrelationship between Indigenous require that prior informed consent be obtained for access to genetic resources. knowledge and practices and traditional territories, the government would recognize Aboriginal title. Thus securing Indigenous Peoples’ access to and control of their lands Finally, in article 8(j), access to, and the sharing of benefits from, the so that traditional land use practices continue. This contradiction even becomes more use of traditional knowledge, innovations and practices of Indigenous Peoples is evident when reading Canada’s Biodiversity Strategy, where it is acknowledged foreseen. It also encourages Parties, within the concept of in situ conservation, that10 “The existing Aboriginal and of Indigenous Peoples of Canada are to respect, preserve and maintain this knowledge. It reads: recognized and affirmed by the constitution and decisions of the Supreme Court.” “Each contracting party shall, as far as possible and as appropriate, subject to its national legislation, respect, preserve and maintain What they fail to mention is that the federal government still refuses to knowledge, innovations and practices of Indigenous and local implement those Supreme Court Decisions and thereby violates its own constitution. communities embodying traditional lifestyles relevant for the Despite the fact that Canada claims to understand the holistic worldview of Indigenous conservation and sustainable use of biological diversity and Peoples and the central importance of their traditional knowledge the implementation promote their wider application with the approval and involvement of the Convention has so far been piecemeal at best. The Interior Alliance therefore, of the holders of such knowledge, innovations and practices and calls for the recognition of Aboriginal title and substantive revisions of all legislation encourage the equitable sharing of the benefits arising from the regarding and impacting biodiversity, Indigenous Peoples’ lands and their traditional utilization of such knowledge, innovations and practices.” knowledge with their full involvement as equal partners.

No. 21 The Monthly Bulletin of the Canadian Indigenous Caucus on the Convention on Biological Diversity April 2001 For more information contact: UPCOMING EVENTS* Interior Alliance # 304 355 Yellowhead Highway MAY Kamloops, BC V2H 1H1 Canada 21-1 14th Session of the Subsidiary Bodies of the UN Framework Convention on Climate Change. Bonn, Germany Tel: (250) 828 9789 21-23 Legislative Harmonisation: Meeting the Requirements of Fax: (250) 374 6331 the CBD and other multilateral environmental agreements. Email: [email protected] London, UK 21-24 International Conference on Biodiversity and Society. NY, US Interior Alliance International Desk 22 International Biodiversity Day: Biodiversity and Manage- ment of Invasive Alien Species 153 Laurier Avenue East 22-23 Diplomatic Conference on a Legally Binding Instrument for Ottawa, Ontario K1N 6N8 Canada Implementing International Action on Certain Persistent Tel: (613) 232 0031 Organic Pollutants. Stockholm, Sweden Fax: (613) 235 1302 23-27 Youth Conference on Environment and Sustainable Development. Borgholm, Sweden Email: [email protected] 24-27 Women’s Traditional Knowledge Workshop on the Amauti and IPR. Rankin Inlet, Nunavut, Canada 27-29 Impact of NAFTA on Aboriginal Business in North America. Footnotes Saskatoon, Canada 1 Maffi Luisa, Oviedo Gonzalo and Larsen Peter Bille (2000) Partnerships for 28-30 Indigenous Knowledge Conference. Saskatoon, Canada Linguistic and Biological Diversity, Draft Discussion Paper, WWF International 28-3 Building Bridges with Traditional Knowledge. Honolulu, Hawai’i – People and Conservation Unit, Terralingua, Gland, Switzerland 28-30 Workshop on the Strategic Plan for the CBD. Mahé, Seychelles 2 Secwepemc Elders’ Message to Masayoshi Ohkubo, President of the Sun Peaks 29-31 International Oolichan Workshop and Conference. Ski Resort Corporation, Skwelkwek’welt, November 4th, 1998 Vancouver, Canada 3 Adams Lake and Neskonlith Indian Bands (1999) Land Traditions of the 29-31 International Conference on , the Neskonlith and Adams Lake Shuswap, Unpublished Report, NIB + ALIB, Internet, Electronic Commerce and Traditional Knowledge. Sofia, Bulgaria Chase, BC supervised by Dr. Douglas Elias, University of Lethbridge JUNE 4 Delgamuukw v. British Columbia (1997) 3 S.C.R. 1010 4-7 CBD Workshop on Sustainable Tourism. Santo Domingo, 5 Delgamuukw v. British Columbia (1997) 3 S.C.R. 1010, 175-177 Dominican Republic 6 a fiduciary responsibility was first recognized in: R v. Guerin (1984) 2 S.C.R. 6-8 2002 World Summit on Sustainable Development Eminent Person’s Roundtable - Europe and North America Region. p.335 Vail, Colorado 7 see especially: Delgamuukw v. British Columbia (1997) 3 S.C.R. 1010, 133 11-22 1st Substantive Session for the UN Forum on Forests. NY, US 8 Mc Neil, Kent (1998) Defining Aboriginal Title in the 90’s: Has the Canadian 12-13 Aquatic Ecosystem Health and Fisheries in the Okanagan- Supreme Court finally got it right?, 12th Annual Robarts Lecture, York Similkameen Basin. Kelowna, BC, Canada University, Toronto, p. 29 18-22 III International Convention on Environment and Development Sustainable Development: Reality or Dream 9 text taken from the Webpage of the United Nations Environmental Program 10 years after Rio Summit. Havana, Cuba (UNEP) www.unep.org 24-30 6th Extraordinary Session of the FAO Commission on 10 Biodiversity Convention Office (1995) Canadian Biodiversity Strategy, Genetic Resources for Food and Agriculture. Rome. Environment Canada, Ottawa, p. 70 JULY 23-27 Working Group on Indigenous Populations. Geneva AUGUST 16-19 1st International Symposium on Biodiversity as a Source of New Medicines. Cali, Colombia 28-1 NGO Forum for the World Conference Against Racism. Durban, South Africa 31-7 World Conference Against Racism. Durban, South Africa. SEPTEMBER 24-28 Conservation of Biodiversity in the Andes and Amazon Basin - Linking Science, NGOs and Indigenous People. Cusco, Peru

*For more details - [email protected] Tel: 819.953.5819

No. 21 The Monthly Bulletin of the Canadian Indigenous Caucus on the Convention on Biological Diversity April 2001