Exploring the Right to Diversity in Conservation Law, Policy, and Practice ‘Ginawaydaganuk’: Algonquin Law on Access and Benefit Sharing Larry McDermott and Peigi Wilson Abstract Ginawaydaganuk, which is loosely translated as the interconnection of all things, is an Algonquin law outlining our responsibilities to each other and the earth. It is the basis of an 18th-century agreement between the French, the English, and the Algonquin to respect Algonquin law and share the resources of Algonquin territory. Three centuries later, Canada and the other parties to the Convention on Biological Diversity are negotiating a new access and benefit sharing regime, but in doing so, Canada is ignoring its historic and current obligations to the Algonquin and other Indigenous Peoples in Canada. This paper explores the exclusion of Indigenous Peoples in Canada from environmental decision-making, the resulting decline of Indigenous cultures, and the interrelated decline in biological diversity. It argues that reconciling the rights of Indigenous Peoples with State sovereignty in an Access and Benefit Sharing Protocol is an essential means to support the retention of Indigenous cultures and reverse the decline of biological diversity. A new international law on access and benefit sharing (ABS) is currently being negotiated by the 193 Parties to the United Nations Convention on Biological Diversity (CBD). The discussion of access to and sharing of benefits from genetic resources and Indigenous knowledge brings into focus conflicting worldviews about the place of humanity in the ecosystem and humanity’s responsibilities when interacting with the environment. Ginawaydaganuk,1 a principle of Algonquin law that acknowledges the web of life or the interconnectedness of all things,2 stands in stark contrast with Canadian law and policy, which presumes humanity’s superiority to and fundamental disconnection from nature.3 This paper will show how Canadian environmental law and policy – combined with policies of cultural hegemony4 – operate to exclude Indigenous peoples and a common essential Indigenous value from environmental decision-making. Canada appears set to travel the same path in its current approach to the development of an international ABS regime, ignoring Indigenous rights and promoting a worldview fundamentally at odds with many Indigenous cultures. This arguably contravenes Canada’s constitutional and international obligations, ultimately defeating the stated objectives of the CBD. Evidence of the consequences of this approach can be seen both in terms of harm to Algonquin culture and the decline in biological diversity. To restore its good name on the international stage, demonstrate respect for the rule of law, re-establish good relations with Indigenous nations, and support the retention of biological diversity, Canada must at least meet its legal duty to consult with Indigenous Peoples and accommodate the exercise of Indigenous rights in the development 1 Pronounced with a soft ‘g’: gee-na-way-dag-a-nook. 2 The English language does not accurately express some of the concepts under discussion here. The notion of people and land being one thing is not properly captured in English terms of ‘land and resources’ or ‘environment.’ This makes it challenging to convey the meaning of Ginawaydaganuk. The Algonquin are not alone in this challenge, nor are they alone in seeing the world as an interconnected whole with humanity as part of the environment. See comments by Jose Kusugak, past President of the Inuit Tapiriit Kanatami, at the House of Commons, Parliamentary Standing Committee on the Environment and Sustainable Development (April 25, 2002) at 1040: “Traditionally, there was no definition ofavitiliriniq in Inuktitut. It was all one, the Inuit being part of the ecosystem. So there was no Inuit and then the environment. When it came to negotiations, we had to bow to the western world trying to define what ‘environment’ is, outside of the human, the oneself. So we struggled through all that, and we came up with a word, avitiliriniq, which means anything outside of the human form. But at the same time, when we’re talking about the environment in Inuktitut, we always include ourselves as part of the environment. Thus, the Inuit are part of the ecosystem, and it has been proven a number of times.” Last accessed May 21, 2010, at http://cmte.parl.gc.ca/Content/HOC/committee/371/envi/evidence/ev521305/enviev68-e. htm#Int-212078. 3 In general, land and things on the land are presumed to be owned by the Crown in Canadian property law and may be allocated to individuals to generally use as they wish. The principles of land tenure in Canada are outlined and contrasted with Mik’maq perceptions of land in Henderson, J. S. Y., M Benson, and I. Findlay, 2000. Aboriginal Tenure in the Constitution of Canada. Carswell: Scarborough. 4 This has been well-documented by the Royal Commission on Aboriginal Peoples, which states, “We retain, in our conception of Canada’s origins and make-up, the remnants of colonial attitudes of superiority that do violence to the Aboriginal peoples to whom they are directed”. Canada, 1996. Report of the Royal Commission on Aboriginal Peoples. Queen’s Printer: Ottawa. Last accessed September 2, 2010, at: http://www.ainc-inac.gc.ca/ ap/rrc-eng.asp. While Canada apologized in 2008 for over a century of forced assimilation of Indigenous Peoples in Canada through the Residential School system (see Canadian Broadcast Corporation, 2008. “PM cites ‘sad chapter’ in apology for residential schools”. Last accessed June 6, 2010, at: http://www.cbc.ca/canada/story/2008/06/11/aboriginal-apology.html), in 2009, Prime Minister Harper denied there was any history of colonialism in Canada. See Canadian Business on Line, September 29, 2009. “Prime Minister Harper Denies Colonialism in Canada at G20”. Last accessed June 6, 2010, at: http://www.canadianbusiness.com/markets/cnw/article.jsp?content=20090929_172501_0_cnw_cnw. 205 Policy Matters 17, 2010 Theme III: Challenges and Opportunities of the international ABS regime. Recommendations are made for a new way forward that is respectful of Indigenous rights and our collective obligations to the earth. ALGONQUIN LAW: GINAWAYDAGANUK The Algonquin are an Indigenous People whose traditional territory is in east-central Canada, transected by the present-day Québec-Ontario border. Algonquin law, derived from the Creator, defines sacred responsibilities to others and to the earth. A key principle of Algonquin law is ginawaydaganuk. The traditional Algonquin worldview conceives of physical, emotional, mental, and spiritual connections to all of life and the life-givers, including the plants, animals, water, air, earth, and fire. Under Algonquin law, there is a collective and individual responsibility to honour these sacred gifts and ensure that they thrive. “Algonquin laws are based on that respect, and [Algonquin people] continue to abide by the principle of placing conservation, and respect for the natural world, ahead of human consumption.”5 It also requires respect for the needs of those to come and consideration of the effect of each act that we take upon the next seven generations. Rather than a reductionist approach, Algonquin law requires consideration of the cumulative impacts of actions on the entire web of life; this is how the Algonquin define sustainability. The Welcoming and Sharing Three Figure Sacred Figure 1. The location of the Algonquin land claim in Canada (top) Wampum Belt6 negotiated in the early 18th century and in the eastern part of the province of Ontario (bottom). The total was one of the first ABS agreements produced in area of the claim is 36 000 square kilometers. © Andrea Beauvais/ Canada. The belt depicts three figures holding hands, Larry McDermott, Plenty Canada representing the French and English flanking the Algonquin. The symbol of the cross indicates that the agreement was witnessed by a representative of the Vatican. Today, esteemed Algonquin Elder William Commanda carries the belt. He is responsible for sharing the legal history of the agreement and informs us that the commitment expressed through the Wampum Belt was to accept the sacred responsibilities to care for the life-givers, to respect each other, and to share the “grand resources of the land.”7 Elder Commanda reminds us, As you will know, respect for Mother Earth and all species and forms of life is fundamental to the true Indigenous way of life. Over the course of my own lifetime, I have witnessed our natural heritage damaged almost irrevocably at every level by unbridled greed, opportunism and development, and uncoordinated federal and provincial management – evident particularly in the history of logging, hydro electric generation, nuclear development and mining within the Ottawa River Watershed, the ancestral territory of the Algonquin Peoples, and the land that originally gave life to the dream of Canada. The record of devastation now impacts not just Aboriginal Peoples, reserves and wildlife, 5 Former Algonquin Chief Clifford Meness, 1992. Minden and Area ’92. Kevker Publications Ltd.: Minden, Ontario. 6 A wampum belt is a mechanism for recording agreements in traditional Algonquin and other North American Indigenous cultures. Agreements recorded via a wampum belt are considered by Indigenous Peoples to be solemn promises of the highest order, demanding honourable observation. 7 Elder Commanda is an Officer in the Order of Canada. In 2010, he received the National Aboriginal Achievement Award