Course:CONS370/2019/Implications for Indigenous jurisdiction in the management of morel mushroom harvesting by the Secwepemc Nation of British Columbia, Canada

The Shuswap or Secwépemc (pronounced suh-Wep-muhc) People are a Nation of 17 Bands occupying the south-central part of the Province of British Columbia, Canada, with their traditional territory stretching from the Columbia River valley along the Rocky Mountains, west to the Fraser River, and south to the Arrow Lakes. The Nation is a political alliance that regulates the use of land and resources, and protects the territories of the Shuswap. The Nation is represented by two main organizations, the Northern Shuswap Tribal Council (NStC) and the Shuswap Nation Tribal Council (SNTC). Although the Bands and organizations are separate, they are united by a common language and a similar culture and belief system.

The SecwépemcúÍecw (the land) sustains a large number of plant species that are traditionally used as foods, medicine, tools, clothing, implements, and shelters. The Yecwmenulecwem are the traditional plant resource stewards, and growing ethnobotanical evidence suggests that they “actively manage their environments to ensure a predictable, abundant source of the plants and animals they relied on, whether for food, implements, or medicines” (p. 74). They continue to steward the lands today and manage their forests to sustain a healthy ecosystem for their communities.

In July 2017, a wildfire broke out in the Secwépemc Territory, labeled the Elephant Hill Fire, that was recorded as one of the most devastating fires on provincial record. 23 First Nations communities were directly impacted, with evacuation numbers up to 1,800. In the aftermath of the significant damage of the 2017 wildfire season, the Secwépemc also realized that they would have to prepare for another intensive land use for the following year, as hundreds of morel pickers were expected to flood the recently burned forest as that is prime morel hunting habitat.

The Elephant Hill Project, led by Secwépemc communities in 2017, allowed them to sidestep the need for legal title to assert jurisdiction over their territory as the morel industry currently is under no provincial regulations. Several Bands directly impacted by the fire came together to create the Secwépemc Territorial Patrol (STP), carrying forward  the Yecwminmen (resource caretakers) which asserted the Secwépemc stewardship values of sustainable land management and self-reliance.

According to the BC Treaty Commission, there are no ongoing cases open with the SNTC, that include the associated Secwépemc communities, for treaties with the province of British Columbia. The B.C. process to gain legal title is long, costly and often requires First Nations to provide western forms of knowledge and evidence to prove land claims. The pilot program at the focus of our case study helped the Secwépemc communities involved to strengthen their claims towards a potential treaty agreement with B.C. by

1. Establishing co-management plans with provincial governments to further the goals of sustainable resource management
2. Territorial patrols asserting jurisdiction over an area without any known overlapping claims.
3. Formalizing a land use agreement
4. Re-integrating “Yecwminmen“  practices provided the Secwépemc with opportunities to use their traditional knowledge of the land, strengthening provision of sufficient evidence of use of the land.

Description

The Secwépemc (Shuswap) are a nation of 17 Bands with a traditional territory that extends around the south-central part of British Columbia, Canada. As with many First Nations, the forest and its understorey have been entwined with their history and identity for thousands of years. The SecwépemcúÍecw (the Secwépemc word for land) historically provided the Secwépemc people with medicines, sustenance, materials, and economic opportunities, as detailed in Secwépemc People, Land and Laws (citation here).

The Secwépemc communities have for centuries resisted colonization on their unceded territory and sought sovereignty from a federal government that created “The Indian Act” in 1876, allowing a foreign government to assert control over First Nations in the newly colonized Canada. A written account authored by the Secwépemc, Syilx and Nlaka;pamux First Nations in 1910 titled the “Memorial to Wilfred Laurier” charts the history of the relations between the interior nations and newcomer populations. In this memorial, presented to Premier Laurier as he passed through what is now known as Kamloops, a gracious welcome to the land was offered and despite previous negative interactions with newcomers on the land, a model of relations was presented to Laurier. This model of relations was based on Indigenous law, reciprocity and shared jurisdiction and offered to share the responsibility for their territory.

Despite the continual colonialization of the Secwépemc peoples over territory that has never been conquered, compensated or negotiated in treaties by the Canadian government, the Secwépemc continue to fight for their asserted jurisdiction and rights over their traditional land. Relentless resource extraction by outsiders in the form of mining and logging have permanently changed the Secwépemculecw (traditional territory) and wildfires, enhanced by the effects of climate change, continue to threaten the Secwépemec Nation.

Treaties in context

Aboriginal peoples have been living on their territories since time immemorial. Before settlers arrived in North America, these communities thrived, with clear systems of communal law and rich oral history traditions. With the arrival of Europeans, settler colonialism imposed new laws and institutions to govern the land and people. Settler perspectives have routinely held Aboriginal ways of knowing, legal systems, oral histories, and other approaches as illegitimate. But just because a system is different does not mean it cannot be effective or have value.

The history of land claims in British Columbia has been contentious due to the lack of historical treaties with BC Aboriginal peoples. Very little effort was made in the 19th century to make treaties, and as a result, the vast majority of Aboriginal peoples in BC have never ceded their territories to the Crown or extinguished their claims to the land; this ultimately puts Canadian sovereignty in a precarious position in BC because no agreements were ever made for settlers to be present on, use, or govern the land.

Because of the inconsistency of treaties in Canada, the courts have been utilized as a tool to better clarify and define the nature of Aboriginal rights as well as the scope of their application. Using the courts is difficult for many Aboriginal peoples and First Nations due to the high cost of litigation, so it is not an appropriate route for many groups to resolve land claims or rights issues. As well, cases are often specific rather than comprehensive, so each case adds a small piece of clarification to the law overall, which can then be built upon in later cases. Some cases that have been influential in defining Aboriginal rights include the Calder Case which ultimately was lost, but the court’s decision acknowledged that Aboriginal title has a place in Canadian law for the first time, and the case was foundational to the creation of the Nisga’a Final Agreement, the first comprehensive land claim in British Columbia. More recently, the 2014 Tsilhqot’in decision granted the Tsilhqot’in people exclusive use and governance of their traditional lands, and the case also clarified the test for establishing the existence of Aboriginal title.

The lack of treaties in British Columbia is extremely troubling. Warry asserts that “treaties are not simply transactions about ceding land, but rather are complex statements about the political relationship between aboriginal groups and the crown” (p. 125). Treaties are a fundamentally important aspect of how Aboriginal rights are defined under the law. Although Aboriginal rights are entrenched in sections 25.1 and 35.1 of the Charter of Rights and Freedoms, guaranteeing that other Canadian rights cannot “abrogate or derogate” (lessen, remove, or change) from those rights in any treaties, or other rights or freedoms of Aboriginal peoples, if communities do not have any treaty to reference, it becomes significantly more complex to define and defend their rights. Even though this constitutional protection of Aboriginal rights has been seen as setting a standard in the international community, Canada still has much work to do to resolve the many issues in its relationship with Aboriginal peoples.

Across much of the rest of Canada, indigenous groups are bound by historical treaties, which are limited in scope and depend on changing interpretations by the courts. Over the last 40 years or so, there has been a movement among Aboriginal groups who do not have historical treaties to establish agreements with the government. These are understood to be modern treaties between the Aboriginal peoples and the government, and their extreme level of detail requires years of negotiation. “These modern treaties also provide plans for the transition away from Indian Act legislation and designate political control over various jurisdictions. Thus, they come close to roughing out the nature of Aboriginal self-government” (p. 124-125). The Nunavut Land Claims Agreement (1993) and the Nisga’a Final Agreement (1999) are two examples of comprehensive land claims agreements that have gotten Aboriginal peoples much closer to a system of self-government that is affirmed by the state.

Aboriginal Title in B.C. does not grant all the rights to members of that community. The rulings of the Delgamuukw v. British Columbia case in 1997 states that the Provincial government has a 'duty to consult' legal Title holders, but can infringe on those rights by invoking 'Principal of eminent domain' or appropriate justification . Those justifications include "the development of agriculture, forestry, mining, and hydroelectric power" and "the building of infrastructure and the settlement of foreign populations to support those aims. This version of consent exists today with the most recent ruling of Tsilhqot'in Nation v British Columbia reaffirming that the Crown can override Aboriginal refusal to consent in the name of the greater good.

BC Treaty Process

The BC Treaty Commission has established a six-step framework for Aboriginal communities and First Nations who wish to pursue a treaty agreement with the government. The process begins with a statement of intent to negotiate, followed by a series of negotiations to determine both what topics will be covered in the treaty as well as delineate rights and responsibilities of the parties. Once the contents of the treaty are agreed upon, a plan for long-term implementation is developed.

Currently, more than half of all First Nations in BC are participating in or have completed treaty negotiations through this process. The Secwépemc Nations at the focus of this project have not begun the process of treaty negotiations at this time. Although the Secwépemc Nations are not currently pursuing a treaty, we believe that beginning this process would give them greater authority over the activities on their traditional territories and lead to greater success for future programs like the Elephant Hill Permit Program. The more clearly these jurisdictions can be defined, the more enforceable such programs become. Instead of being optional or a courtesy, negotiating the management of these lands under a treaty would give the Secwepemc management decisions authority to compel compliance among the public.

Tenure and administrative arrangements

In the province of British Columbia, 94.7% of the land is Crown land, which is governed by the Ministry of Forests. The Province of BC exhibits proprietary rights detailed in section 109 of the Constitution Act, 1867 which granted full jurisdictional authority over the forests to the province of B.C. We can then assume that most morel harvesting occurs on Crown land which leaves the management of morel harvests in the hands of the Ministry of Forests. Rights to access and harvest mushrooms are described on B.C. government webpage as a public good that is only restricted by the regular use of public lands. No specific regulatory framework governs morel harvesting, buying, or selling. This creates interesting co-management when the overlay of unextinguished aboriginal rights and titles also govern rights of access and use in much of British Columbia’s public lands. Examples of this are also found on the mushroom picking webpage through links like "Additional information about picking mushrooms in Tsilhqot'in territory" are displayed alongside provincial regulations. This provincial support paired with new land claim settlements will better allow First nations to assert jurisdiction over their land and resource harvesting.

B.C.  is in a particularly unique position to produce new regulations surrounding the morel industry as popularity of engagement in this industry grows. According to a study by Wills and Lipsey, the majority of the morels harvested in western Canada in the 1990’s and early 2000’s came from the Yukon Territory. This is likely due to the fact that fires were not aggressively suppressed in the Yukon and accessibility to airports made it feasible for businesses to fly up there. In recent years B.C. has increased its contributions to the morel market. Even though B.C. has an aggressive fire suppression team, wildfires have increased to the point of labelling them as “mega fires” that are catalyzed by effects of climate change and tree mortality due to the Mountain Pine Beetle infestation. Morel harvesting occurs in the southeastern part of the province because most of the forest fires in British Columbia are concentrated there.

With a significant increase in engagement in B.C.’s morels harvest, an industry management framework is needed to mitigate negative effects on local communities and other industries. We think that a local framework, with power given to those directly affected, specifically tailored to each interest area would be the most effective management regime, rather than a province wide management that doesn't take specific Indigenous land use into consideration. While harvesters, like tree planters, are known to bring an economic boost to local communities, they are also notorious for leaving garbage and camping set-ups, without proper management of human waste. This fact is partially due to negligence of some harvesters, but is also due to the lack of systematic support that individuals are used to, such as waste receptacles and restrooms. This is a known public concern, that occurs on public land, and yet the province does very little to mitigate these impacts that have a direct impact on First Nations and other local communities. These communities are often also the ones in charge of managing the site clean up as well.

B.C.’s commitment to both the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Truth and Reconciliation Commission’s 94 Calls to Action is proven through the signing of the Principals’ Accord on Transforming Treaty Negotiations in British Columbia on December 1, 2018. This governmental commitment to Aboriginal Title and Rights reflects a coming shift for B.C. as First Nations assert jurisdiction over their territory. This shift can be seen emerging through the previously unregulated industry of non-timber forest products and, hopefully, with the promised legal support by the province to govern traditional territory, will have a great impact on the future land use, especially in regards to mushroom harvesting, as First Nations will be able to better assert their access, exclusion, management, and withdrawal rights over their territory.

The increase in morel habitats due to wildfire intensity, B.C’s commitment to treaty negotiations, and the lack of current regulations over the non-timber forest sector coalesce into an opportunity for a massive shift in jurisdiction over this resource. It’s not unknown that Indigenous Forestry practices are proven to be more effective in sustainably managing for a healthy ecosystem, and such a shift over power into more local hands will have a direct impact on the long-term sustainability of those resources.

An example of this type of management structure has been illustrated beautifully by the success of the Secwépemc Territory Morel Harvest Emergency Land Management Program. This program shifted the power dynamic from leaning on the  provincial government (NR&C officers) into a more balanced structure with local governance (Secwépemc Nation). This co-management structure challenged the current Canadian Timber-centric resource industry that focuses on economic benefits, and sheds light on a local land management structure that is more aligned with traditional practice where land users are encouraged to respectfully harvest resources and the management is designed to support ecosystem health and sustainability through an ecological approach to the plan development.

Elephant Hill Fire and Rehabilitation

Elephant Hill 2018; Morel Harvesting Habitat

The Elephant Hill fire

In July 2017, a wildfire broke out in the Secwépemc Territory, labeled the Elephant Hill Fire, that was recorded as one of the most devastating fires on provincial record. 23 First Nations communities were directly impacted with evacuation numbers up to 1,800. The fire swallowed over 192,000 hectares of land, in the heart of Secwépemc traditional territory.  In the aftermath of the significant damage of the 2017 wildfire season, the Secwépemc realized that they would have to prepare for another intensive land use in the following year, as hundreds of morel pickers were expected to flood the recently burned forest that makes a prime morel hunting habitat.

A culinary delicacy, the morel is one of the most sought-after gourmet mushrooms and as its market price indicates, is one of the most expensive, retailing upwards of $30 USD per fresh pound. The demand is increasing for morels too, as speciality 'wild' mushrooms rise in popularity amongst chefs and social icons posting about the elusive morel on social media. Some economists call morel harvesting an “informal economy” while Pilz et al. report suggests that “the capacity of state, federal, and provincial governments in western North America to support the wild mushroom industry is hampered by a profound lack of published information about morel commodity chains” (p121).

According to a report by Forest Foods Ltd, upwards of 1,000 mushroom harvesters flooded into the Elephant Hill area in the aftermath and set up camp. Mushroom buyers established large camps, sometimes with small markets and hot food available for sale, and the morel harvest began in May 2018.

The Permit Program

The Elephant Hill Permit pilot program was a part of a multi-stage Emergency Land Management Program developed by Forest Foods Ltd, hired by the Elephant Hill Wildfire Recovery Joint Leadership Council and run by Secwépemc Territorial Patrol (STP). It was one of the first permitting programs implemented in the morel industry in B.C. due to the absence of provincial management strategies. Despite the Forest Practices Board's 2011 report recommendations to examine the opportunities in Non-Timber Forest Products, the provincial government has yet to make any real progress in establishing regulations. Because of this gap, the Secwépemc decided to assert their jurisdiction and exercise control over their bundle of rights. Those specific rights include Access, Management, and Withdrawal and are rights guaranteed by section 35.1 of the Constitution Act, 1982.

The STP was led by individuals from a collection of Secwépemc communities including Skeetchestn Indian Band, High Bar First Nations, Bonaparte Indian band, and Whispering Pine. ‘Yecwminmwen’ are the resource caretakers in the Secwépemc traditional governance structures and their stewardship values were carried forward with the Territorial Patrol employed for this project. “Appointed kukpi7s (chief) and elders collaboratively discussed strategies and made sustainable harvesting management decisions based on observed measures of the health and abundance of regionally specific resources” (p51).

The support by Province of B.C. for the project increased co-management relations and was a step towards Reconciliation. Territorial Patrols were accompanied by Natural Resource Conservation Officers during the implementation of the pilot program. A personal account from Ali Ballantyne, one of the authors of this wiki page, states that Conservation Officers were usually on scene, standing behind the STP, during the permitting process to show support for the program and apply provincial regulations when needed. Additional government support is proven through the placement of Secwépemc territory signage adjacent to Provincial regulation signage. The STP staff that worked directly with Provincial Natural Resource and Conservation Officers engaged in a knowledge share partnership that represented their collaboration. Their program was publicly and positively addressed on the British Columbia Government page titled “Mushroom Picking” and resulted in better management over Secwépemc Traditional Territory and assisted in the fulfillment of the Secwépemc’s larger agenda to implement traditional resource management laws to fill the Provincial legislative vacuum governing understorey resources.

Affected Stakeholders

We consider the Secwépemc Nation and territorial patrol participants as affected stakeholders in the implementation of the permit program for morel harvesting. Through developing and enforcing the permit program, the Secwépemc were able to exercise their own authority over their traditional lands and the use of the resources therein. By identifying a gap in the regulation of non-timber forest products by the government and conservation officers, the Secwépemc ensured good management and stewardship of the land, in line with their traditions and customs, by implementing their own system of regulation.

Because of the Secwépemc filling this regulatory gap, the power relations between the government and conservation officers on the one hand, and the involved First Nations on the other hand, is shifting. The managing authority over the Elephant Hill region has been divided by the Secwépemc Nation’s actions in creating a permit program and running it themselves. This provides both the Canadian governing bodies and the Secwépemc Nation a unique opportunity to build collaborative structures of regulating the morel harvest going forwards. Because of these shifts in authority, we also deem the local Canadian governing institutions as affected stakeholders in this case.

Interested Stakeholders

Interested stakeholders include the morel harvesters, wild food businesses, forest industry companies, and local community members. These parties all have a financial stake in the management of the land and any changes in authority over the morel harvest. Morel harvesters and wild food businesses are not necessarily local to the area, but stand to profit economically from consuming this resource. Forest industry companies have a stake in maintaining the governance status quo in order to protect their interests since the Canadian governing authorities often err on the side of benefits to industry. Local communities are interested stakeholders because they are not emotionally tied to the land in the same way as the Secwépemc people, but would experience the effects of changes to management or further environmental degradation. However they would also benefit from management of the landscape that restores it.

Implications

The Secwépemc communities that participated in the Elephant Hill Fire have not yet begun to negotiate a treaty with the Provincial Government. This wiki page is not a suggestion to the Secwépemc to pursue title, its purpose is to assess the project for its strategies and detail what implications the project would have on the treaty process and some potential results of establishing title. In the event that those Secwépemc communities decide to claim legal title, evidence collected through this pilot program has significantly strengthened their Statement of Intent (SOI) and leveraged their negotiation capabilities through:

• Establishment of co-management plans with Provincial governments to further the goals of sustainable resource management: Examples and proof of how the First Nation governing body is organized is necessary for the purposes of treaty negotiations. The Project and the report are strong supplemental evidence of how resource management might be conducted.

• Territorial patrol asserting jurisdiction over an area without any known overlapping claims: The SOI also requires a description of First Nations with overlapping or shared territory. By actively and publicly patrolling the areas described in the program, Secwépemc establish territory claims that have not, to the authors' knowledge, been challenged.

• Formalizing a land use agreement: Political negotiations are essential in establishing comprehensive treaties and addressing complex issues and prior government to government agreements are very useful is assisting this process.

• Re-integrating “Yecwminmen"  practices provided the Secwépemc with opportunities to use their traditional knowledge of the land, strengthening their ability to prove sufficient evidence of use of the land.

A full list of the implications of acquiring legal title is beyond the scope of this page, but a few are worth noting. If Aboriginal title exists, all the beneficiary interest in the land transfers to Secwépemc and jurisdiction is legally granted. The decision-making and relationship framework will be significantly altered, and traditional management structures can be facilitated again. It is worth noting that even without legal title, under Canadian law, the Secwépemc were able to assert their jurisdiction without major conflicts and with support of  the provincial government.

Financial constraints and the long duration of the treaty process are some of the reasons why not all First Nations have pursued title. Another consideration is that once title is granted, under current legislation based on the rulings of  the Tsilhqot’in case, government are stil justified to infringe Aboriginal title by invoking the principle of eminent domain. This allows governments to override Aboriginal refusal to consent through justifications of "the development of agriculture, forestry, mining, and hydroelectric power" as outlined in the Delgamuukw v British Columbia case. This infringement for 'the greater good' means that Aboriginal title is not absolute and justifications to override consent are loose. This detail will hopefully be one of the main things to change if B.C. implements UNDRIP and its recommendations to use Free Prior and Informed Consent (FPIC) over the current Canadian definitions of 'consultation'.

We believe that the Elephant Hill Project was, in part, so successful because it was a short-term project and did not threaten logging interests. If the Secwépemc would like to employ the guardianship program they piloted in 2018 and allow it to be inclusive of longer-term, ecologically restorative practices that align with their traditional management and allow them to restore their landscape to a forest ecology that they can live with, then title might be useful as it secures proprietary rights over all above-ground resources.

Progress in the implementation of the provincial and federal government commitments to UNDRIP, specifically Article 46, will result in limitations on the governments' use of justifications to override Aboriginal title. This will shift the resource industries' use of Aboriginal territory from “consultation” to the right to say “no,” providing, among many other benefits, the opportunity and security in long-term ecologically restorative programs that make use of their traditional management structures.