Course:CONS370/Projects/South Okanagan-Similkameen region, British Columbia, Canada: multi-level governance, Indigenous territory and settler interests

The Okanagan-Similkameen National Park Reserve is a long-standing proposed national park reserve in the South Okanagan region of British Columbia, Canada. Rich in biodiversity, the area is host to a variety of users, including the Okanagan Nation Indigenous peoples, ranchers, hunters, recreationalists and other private land owners. The history of the Okanagan-Similkameen National Park Reserve is plagued with conflict and concerns from members of all parties involved in its formation. With several vested interests on all stakeholder sides, the formation of this reserve will not be a simple undertaking. It represents an opportunity to foster relationships and co-management with First Nations and Parks Canada, as well as other traditional users of the land. The process will unfold over the coming years. The most up to date information is contained within a Memorandum of Understanding signed July 2nd, 2019 between the province of British Columbia, the Okanagan Nation and Canada.

Description

Current national parks of Canada

This case study is focusing on the proposed South Okanagan-Similkameen national park reserve located in British Columbia, Canada. The proposed area of the park encloses private lands, Crown lands, the South Okanagan Grasslands Protected Area, unique biodiversity, natural and cultural landscapes.

History

With colonization and British Columbia joining the Confederation, the Syilx/Okanagan First Nations were moved onto reserves and displaced from their traditional lands that provided them with medicines, food, materials, and sanctuary. This land still remains unceded from these First Nations communities yet land development continues to cater to the expanding population in the interior of British Columbia. With the growing threat of urban sprawl, the Okanagan Nation Alliance and some locals in the surrounding community brought their concerns for the health and future of the land to the then Prime Minister (Jean Chretien) in year xx. The South Okanagan-Similkameen national park reserve was proposed in 2004 in an effort to help conserve the area’s unique biodiversity and ecosystem. With this proposal, the surrounding community was instantly split for or against the park with support for environment versus concern over land-use restrictions. However, no immediate restrictions were set in place, and like most national parks, the implementation of this national park reserve has been relatively slow-paced. The next steps were taken about 7 years later in 2011 and 2012 when Parks Canada and local First Nations concluded that the park reserve could be feasible under certain conditions. Again no further action was seen for another ~6 years. With 2017, came the collaboration between the provincial and federal governments with the Syilx/Okanagan nation to further assess the implications of turning this area into a national park reserve. From here progress began to gain traction and through this collaborative effort came recommendations and models of a cooperative management plan between the governments and first nations for the park reserve. At this point, it was time to begin taking public and stakeholder opinion into consideration through the “What We Heard” report, which showed that a majority was in favor of the park. Most recently in July 2019 the Syilx/Okanagan Nation, Canadian and provincial governments signed a Memorandum of Understanding which formally outlines how cooperative management will work, the intentions of the park reserve, and the defined boundaries of the area.

Tenure arrangements

Current Tenure Arrangements

There are three major tenure arrangements when it comes to land ownership: freehold or private property, state property and communal property. In the case of the Okanagan-Similkameen National Park Reserve, because this park is not yet in place, one can only speculate based on ongoing discussions and the current Memorandum of Understanding what sort of tenure arrangements may be put into place as well as by examining existing national park reserves within Canada. Currently Section 6.0 of Parks Canada's Guiding Principles and Operational Policies outlines land tenure and residency in Section 6.0:

“6.1.1 - Limited tenure may be granted on national park lands in the form of permits, leases, or licence of occupation for the provision of essential services and facilities for park visitors and for authorized residential uses.

6.1.2 - Upon the expiry of a lease, licence, or permit of occupation, where not already provided in an existing agreement, a replacement instrument may be negotiated if the purpose is supported by the park management plan; if the holder has complied with the terms and conditions of the expiring agreement; and if the granting of a replacement agreement is consistent with federal government policy on fair access.

6.1.3 - Parks Canada will acquire leasehold interests in national parks where a park management plan identifies that the leasehold lands or facilities are required for public purposes.

6.2.1 - Persons who have established a need to reside in a national park as defined in regulations will be entitled to acquire the appropriate instrument of tenure for as long as the need to reside status is maintained.

6.2.2 - Residents of national parks will live in park communities or on the sites of their work stations.

6.2.3 - Condominium ownership of private accommodation will be allowed for those who have established a need to reside in park communities as defined in regulations.”

Persons that are already residing in the proposed boundary, including ranchers and First Nations, would be permitted to remain in place and continue to occupy and own their land. In national parks, such as Jasper or Banff National Park, which have their own municipalities, the government owns the land and the buyer is on a 49 year lease. The most recent document outlining potential tenure and legal land rights arrangements is the Memorandum of Understanding between the Federal Government of Canada, the Provincial Government of British Columbia and the Okanagan Nation as of July 2nd, 2019. A memorandum of understanding is a non-legally binding agreement and parties can withdraw at any time, having given 60 days notice. It is a statement of understanding and agreed upon terms that will assist in the success and clarity of the planning process.

Canada has committed to recommend to Parliament, prior to the final agreement for the national park reserve, to make any necessary amendments to the Canada National Parks Act that would ensure that in situations in which the proposed park boundary contains unsettled land claims that definitions of a national park are expanded to include those in question. This stipulation allows for many different cooperative management regimes for the national park reserve. One might say the Canada National Parks Act is more of a guiding document in this case then, and that this national park will pave the way for more effective co-management with First Nations and Parks Canada going forward.

Additionally, it should be noted that this proposed park is a national park reserve, rather than a national park. This designation distinguishes the fact that the protected area has not yet been brought under federal jurisdiction due to outstanding matters, but commonly Indigenous rights. Park reserves allow for traditional activities to be carried out within the park by First Nations. An example of a currently established reserve is the Nahanni National Park Reserve in the Northwest Territories. In that case, the park is co-managed with Parks Canada and the First Nation. No decision can be made without agreement of the First Nation, as opposed to National Parks which require only consultation with First Nations rather than co-management.

Currently, the Okanagan-Similkameen proposed park boundary contains many different forms of land tenure and ownership. A map is included in the current Memorandum of Understanding (2019) illustrating this. There are three different types of private land: owned by the Nature Conservancy of Canada, The Nature Trust, and private land owned by the public, including ranchers. Provincial Protected Areas will be transferred to Parks Canada along with Crown land. Land owned by ranchers and members of the public alike may be sold at market value to Parks Canada for a fair price. This decision is solely made by the land owner and Parks Canada has no right to extricate land from owners.  

Bundle of Rights Approach to Tenure  

The Bundle of Rights Concept is discussed in the FAO (2002) Land Tenure Studies Section 2 titled What is Access to Land. Rights to land is described through the concept of land tenure and can be categorized as private, communal, open access or state. The bundle of rights approach covers rights to use, control and transfer of land. This includes access rights, withdrawal and use rights - subsistence and/or commercial, management rights, exclusion rights, alienation rights - sell or lease either both of the management or exclusion rights, or use them as collateral.

Operational Level Rights	Okanagan-Similkameen National Park Reserve
Access	The public would have access to the National Park for a presumed fee, similar to other national parks. Access may be altered for the public, excluding First Nations, in terms of hunting game, but decisions are not yet finalized on this matter. Current residents would not have to pay for access.
Use rights for subsistence	Ranchers currently residing within the boundary as well as the Okanagan Nation peoples would hold rights to a continued way of life which involves living off the land. Currently the Canada National Park Act gives the Governor in Council the right to make regulations respecting traditional resource harvesting activities. In a cooperative management regime, these rights for subsistence would be agreed upon by the First Nation, Parks Canada and those residing.
Use rights for sale	Ranchers currently residing within the boundary as well as the Okanagan Nation peoples could potentially hold these rights. Parks Canada would also profit from entry fees. This is still in the establishment stages with no outright conclusions or decisions made.

Collective Choice Rights	Okanagan-Similkameen National Park Reserve
Management or co-management of rights	The Memorandum of Understanding between the province of British Columbia, Canada, and the Okanagan Nation outlines an agreement for co-management in the establishment of the national park reserve. Similar to that of Kluane National Park Reserve or Nahanni National Park Reserve, management decisions would be made cooperatively between Parks Canada and the First Nation with ongoing public consultation.
Exclusion rights	Currently under the Canada National Park Act, wardens employed by Parks Canada as well as enforcement officers have rights to remove individuals from parks if found to contravene the Canada National Park Act or Criminal Code. Parks Canada park superintendents also hold the right to make decisions regarding public safety and conservation which could include closing areas or the entire park or revoke permits and authorizations as per the act.In a case with a co-management authority, it would be assumed the First Nation also holds exclusion rights under certain circumstances.
Alienation rights	This has not yet been outlined in management plans.

Duration of Rights	Okanagan-Similkameen National Park Reserve
Duration	Not applicable and/or not decided upon. As well, this may vary with local governments impeded within the reserve and First Nations based on style of governance.
Bequeathed	Not applicable in the case of a national park reserve. This may be applicable in terms of private property ownership within the park reserve boundary, however has not been disclosed as of yet in preliminary plans.

Rights to Compensation

Okanagan-Similkameen NPR

Exstinguishability

Aboriginal Land Claims are protected under the Canadian Constitution under Section 35. In no way does any authority have rights to extinguish land ownership or traditional use. Canada cannot extricate lands from current owners for the National Park Reserve. Owners of land can willingly sell to the government of Canada at fair market price should they choose to do so. If in the case that only Indigenous peoples reserve the right to hunt, and the right to harvest timber on crown lands is lost in the amalgamation of lands, Parks Canada would hold exstinguishability rights.

Administrative Arrangements

According to the FAO (2002), land tenure rules are made operational through land administration. The ongoing process of determining terms and conditions “to establish, develop and operate” a national park reserve in the Okanagan is a tripartite process involving the provincial government of British Columbia, the federal government of Canada and the Okanagan Nation. Because the national park is not yet established, a single management authority has not been explicitly declared or stated. The ongoing planning process aims at equal involvement and engagement from the three parties. Under the section Establishment of a National Park Reserve in the MOU, all parties agree to be mindful that all social and ecological management is congruent with Okanagan Nation land law. The parties additionally agree that “...the establishment, development, management and operation of a proposed national park reserve” will respect Aboriginal and treaty rights as per Section 35 of the Constitution Act, 1982. Section 35 of the Constitution Act of 1982 is as follows:

“(1) The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed.

(2) In this Act, “Aboriginal Peoples of Canada “includes the Indian, Inuit, and Métis Peoples of Canada.

(3) For greater certainty, in subsection (1), “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”

This protects existing Aboriginal land rights in that they cannot be extinguished without consent of those who hold those rights. As mentioned, national parks compared to national park reserves have differences with regards to co-management compared to management by Parks Canada that requires only First Nations consultation.

Current administration and control of British Columbia’s provincial Crown lands will be transferred to the finalized management authority. Private lands may be purchased by Canada at market value and subject to willingness of the seller. Highways within the boundary will continue to be managed by the Province under the Ministry of Transportation. Several aspects of administration and control are in the works and not determined as of yet. The Canada National Park Act lays out the administration of parks that are currently in place. however any number of stipulations could be added or amended in this unique case. Ongoing consultation with the public and co-planning among the Province of British Columbia, the Federal Government of Canada and The Okanagan Nation will determine the final administrative arrangements.

Affected Stakeholders

The residents of the South Okanagan – Lower Similkameen Valleys have been involved in a contentious debate with Parks Canada since 2002 when the project for the national park was first suggested. The parties engaged in the process have been negotiating the stakes between the benefits of preservation and the effects this would have on their use interests. Most of the land for the proposed park is within the traditional territories of the Syilx Nations, but some sections encompass private lands and vineyards.

The proposals have been rejected several times during negotiations, as some of the communities in consultation have a negative perception of national parks and the organisations behind its objectives. First Nations want their rights, territories and cultural practices preserved, farmers and ranchers believe they are in the best position of knowing what the landscape needs and how to manage it, whilst environmentalists are concerned about the impact of ranching on endangered species. There is a need for a community-oriented approach that respects traditional practices, land use, and includes cultural and ecological preservation of the landscape.

The Syilx First Nations are one of the proponents of the park project as this would protect their ancestral lands, but they are keeping a cautious approach, understandably, because of historical actions of the Canadian government. The park boundaries encompass their traditional territories. The concern of these peoples is that the park might impinge on their rights and Aboriginal title. As a body of Nations with a claim to the land, their consensus is an important part of the process. They are intent on preserving their cultural and spiritual uses of the park, as well as traditional resource management, and these are pre-conditions to accepting this project.

Environmentalist and conservationist groups are also proponents of the park. Concerned with the increasing urban development and fragmentation of the landscape in this region, these groups believe that this is a chance to secure large swaths of land for protection and preservation of this endangered ecosystem. The park is a unique ecosystem within Canada and home to many endangered species, it also acts as a migration corridor, and so the park’s establishment would be a boon and a success story.

Ranchers, sport/hunters, trappers and local aircraft operators have joined together in opposition to the project. Their main objectives are to preserve their current activities. These include having cattle graze the land, which ranchers tout as a beneficial preventative fire suppression measure, harvesting game and operating helicopters in the region. The groups argue that the establishment of a national park would threaten their economic livelihood.

Interested Outside Stakeholders

The landscape in the South Okanagan-Similkameen region is one of 39 distinct natural regions in Canada and this ecosystem is not currently represented in the national park system. As such, the Canadian federal government is keen to protect a large part of the area. The government concedes that there would be some loss of industrial activity in forestry or ranching. Towards that end, the government is making concessions to make the opportunity of adopting the park more acceptable by allowing grazing and aerial traffic, as well as offering to buy the land back from willing sellers at a fair market value. The federal government asserts that economic windfall from the park would be greater that the foregone revenue from other conventional commercial activities. The government has agreed not to expropriate any residents, but as a national park, land would be owned by the federal government, which would also administer and enforce regulations. As the official federal institution, the Canadian government exerts significant power in the process and negotiations, although it is amenable to considering local stakeholders' concerns. It was at the Memorandum of Understanding signed between then Prime Minister of Canada, Jean Chrétien and Premier of British Columbia, Gordon Campbell that initiated the negotiations.

The B.C. provincial government also has significant political power leverage in this area. However, it stands to lose out from having a national park established. The current provincial parks have less stringent environmental protection measures, and as such allow for resource exploration and extraction. Further, Crown land owned by the province would be removed from their jurisdiction, with the consequence of foregoing areas of commercial timber. The contradictory interests of the local politicians’ campaign supporters are at play, and these argue the current protection is sufficient and that having a national park established on this property would mean loss of long-term job and impacts to the local economy outweighing any gains from the park.

Discussion

Intentions of Implementation

The selected area for the South Okanagan-Similkameen National Park reserve represents one of the country’s rare and endangered natural ecosystems. the shrub-steppe ecosystem is specifically unique to the interior of British Columbia, found nowhere else in Canada . The ecosystem in the South Okanagan-Similkameen region consists of grasslands that house various saline tolerant species whose dynamics are deeply intertwined, many of which are listed as at-risk. The proposal of this park reserve induced a collaborative management relationship between the governments and local First Nations, focusing on shared goals for conservation in the area. Their primary intentions for the implementation of this national park reserve in the area encompasses the strengthening of conservation, relationships, and the local economy.

Burrowing Owl

Conservation

Within the proposed boundaries of the South Okanagan-Similkameen national park reserve, are established protected areas, nature trusts, and conservancies that have been working to support the native at-risk species on the land. However, these efforts of conservation are working against encroaching habitat fragmentation and degradation through extensive cattle grazing, recreational off-road vehicles, invasive species, and development on areas of crown and private land. The soil formation of this unique shrub-steppe ecosystem is cryptobiotic, meaning that the crust of the soil consists of a layer of living material such as lichens, mosses, and algae. This soil surface acts as a protective layer that prevents extensive wind and water erosion on the landscape while deterring invasive species . The extensive disturbances to the soil, such as overgrazing, off-road vehicles, and land-use change in the South Okanagan-Similkameen has disturbed the dynamic of this soil, promoting the spread of grazing resistant shrubs and invasive species that crowd out native plants like the sagebrush shrub which is intertwined with other native species at risk. The proposed park would unite the current conservation areas which would help minimize disturbances to the soil as well as regulate invasive species. The restriction of recreational off-road vehicle use and hunting resulting from the park’s implementation would also be vital for conservation efforts. ATV use not only disturbs the soil but also disrupts many ground-dwelling at-risk species, destroying their habitats, inducing stress or physically colliding with them. Most of these affected species’, such as the burrowing owl, American badger, and tiger salamander, core habitats lie in the proposed park reserve . Thus many species, unique to this area, will find relief with the new park in place. Overall this park will have major positive contributions for conservation on the land, protecting its unique biodiversity and landscape features, promoting the health of the native species and their dynamics in this rare ecosystem.

Relationships

From very early on in the process of establishing this national park reserve a cooperative effort between the Syilx/Okanagan First Nations and the federal and provincial governments was formed. By working together on the formation of the national park reserve, outlining objectives, addressing and implementing resolutions to local concerns, creating stability and sustainability has strengthened the government’s relationship with the involved First Nations communities and is a meaningful step towards Reconciliation. Many times with an area as unique and at-risk as the South Okanagan-Similkameen region, the government will implement a protected area or national park that works like a form of fortress conservation and excludes rightful First Nations from the land. However, in this case the national park reserve recognizes the Syilx/Okanagan First Nation’s relationship to the land and aims to support their sacred areas and support their traditional and spiritual practices.

Economy

The new park will reduce some economic opportunities involving potential land-use change for agriculture and some resources through hunting and fishing. however, it will provide a new source of sustainable opportunities that will support the Okanagan’s local economy. With the establishment of the national park, it has the potential to generate roughly 570 permanent full-time jobs for the surrounding communities, not to mention the support from investments in infrastructure for the park through local businesses. By shifting from resource-based economic support from the land to ecotourism, an ongoing flow of sustainable revenue will be cemented for the local economy. The relationship the park proposes to create with local First Nations will also promote opportunities for co-management involving them, their communities and culture, which will be a regular source of income. The ranching industry in the area will still be supported by the national park. Livestock grazing usually isn’t apart of a national park. however, considering the history of Crown grazing tenures, a framework is currently being developed for cattle ranching families that will provide stability and regulations for their industry.

Community Conflicts

A study completed in 2016, compared and contrasted the different outcomes for the future of this ecosystem by synthesizing different scenarios of land-use change in the region. The projected outcomes of no land-use change in the area was somewhat similar to the implementation of a national park reserve. The key difference between the scenarios that fuels the need for a national park reserve is the safeguarding of the ecosystem from anthropogenic threats. The implementation of the park reserve ensures that urban sprawl can’t impede and encroach on this special ecosystem and that certain activities that previously occurred in this area, such as cattle ranching or off-road vehicles, would be managed with a regenerative ecological mindset. So although currently it doesn’t seem as though the land is under immediate threat, not implementing a park status for the land would risk development activities in the future in the area. The solidification of ecological priority with the implementation of this national park reserve upholds the interests of some of the surrounding communities. however, it also carries some rejection from other locals. Most of the opposition to the park comes from locals' self-interests involving hunting/fishing rights and off-roading that would be diminished with the park. The inequity of non-disrupted hunting and fishing rights for First Nations in the park is strongly voiced by these locals who will experience loss of resources when their rights for the same are restricted. Most other concerns from the local community were addressed and resolved in the recently signed Memorandum of Understanding in July 2019. Some of these concerns and resolutions involved: no expropriation of private property for the means of establishing or expanding the park, continued hunting and fishing rights for the First Nations communities within the park boundaries and security for ranchers. Some concerns still exist after this recent signing but NGOs like the South Okanagan-Similkameen Conservation Program (SOSCP) are trying their best to educate the local communities on the matter, as well as the government releasing detailed FAQs answering questions about the park.

Assessment

The residents of the South Okanagan – Lower Similkameen Valleys arguably have a relatively low amount of power. Whilst these people can join together to vote for a political representative that could carry their voice with more influence, the input this group has is otherwise mostly exercised if there is a public consultation on the process that is under way.

The Syilx First Nations have banded together to form the Okanagan Nation Alliance (ONA). This was originally to work collectively towards asserting their rights and Aboriginal title. Retaining and asserting the title to their territories gives this groups much more power leverage, as they can hold direct talks with Parks Canada without involving the B.C. Provincial government in the process. This also enables them to deal directly with Parks Canada and strike an agreement with this organisation independently of the provincial government if they see fit. Parks Canada would also have to establish a national park reserve, which is different than a national park in that the land is not under federal jurisdiction due to outstanding issues, amongst which are Aboriginal rights. This enables the First Nations to carry on using the land according to their traditional values and harvest culturally important species. The ONA is using this power to make sure that their title and rights are respected and to add some conditions to accepting the establishment of a national park.

Environmentalist and conservationist groups have an activist and consultative power. They can choose to publicise the events and try to sway the public opinion in favour of the park. This group may have scientists as part of their members which can give a soft power to the group in that these people are experts on the subject and therefore can provide an informed point of view. More recently, a national group has taken an interest in the creation of a park, the Canadian Parks and Wilderness (CPAWS), and they have set forth a campaign to promote the establishment of the park, giving it a national voice and momentum.

Ranchers, sport/hunters, trappers and local aircraft operators have formed an alliance of opponents to the creation of the park, out of fear this will curtail their activities and livelihoods. Whilst they have valid concerns, they have little power other than threatening economic collapse. However, this group is the most vocal and they are hiding their low numbers by actively campaigning against the park through publicity stunts.

The B.C. provincial government has a considerable amount of power, although they cannot overrule the federal government. The local politicians have a lot of support from commercial companies that exploit the area for natural resources and this garners a lot of media attention, which can be detrimental to the project and turn public opinion. This would be especially true in times of economic crisis when saving jobs is usually a high priority for voters.

The Canadian Federal government has the most power here, although they are bound to respect Aboriginal rights through Section 35 of the Constitution Act, 1982 and Section 25 of the Canadian Charter of Rights and Freedoms – Aboriginal and treaty rights. The federal government can negotiate directly with the Okanagan Nations, essentially overrule any other stakeholder here, with provision to the B.C. provincial government. The federal government is using its power to push forward its agenda of having the different eco-regions of Canada represented through the national parks.

Recommendations

The Similkameen River

The original intentions for the formation of this park were focused on conserving and supporting the area’s unique ecosystem. However, because the park has not yet been established it's challenging to assess its effectiveness in achieving its goal involving the region’s biodiversity. In the primary years of the national park reserve, we would recommend having firm restrictions on park activities that directly affect its biodiversity via habitat disturbance or disruptions. These restrictions would allow for faster regeneration of the species at risk, and once they have successfully established strong populations and no longer need the support, slowly remove the restrictions. Having this grace period for species at risk will ensure that if a future conflict occurs, the species won’t be devastated to a point of no revival. We would also recommend creating an overview of all of the species that inhabit the park, their current status, specialized conservation efforts (if any), and population numbers. Then after the park’s implementation, updating this overview annually or bi-annually (depending on the reproductive cycles of the species in question) and from the data, assessing if there are positive outcomes for recovering the species and more slack can be allowed for certain restrictions. If not, more measures may need to be taken to support their regeneration before restrictions can be lifted.

Our recommendations to help mitigate the current anti-park attitudes would be to educate locals and provide alternative sources for current land use activities. Providing informative and engaging opportunities for locals would hopefully help them absorb the importance of helping the region’s ecosystem, what it provides in terms of ecosystem serves, its cultural significance to the surrounding Indigenous communities, and its intrinsic values. These opportunities could be in the form of guided tours, informational meetings, or physical and online articles. Remaining transparent with the locals about the development of the park will be in the best interest of the administrators. Also to holding regular meetings or having an open forum where questions and concerns from the community can be voiced and directly addressed to further understand the implications of the park. From understanding the voices of the community, options of alternative sources for current land use activities should be synthesized to help displace some of the restrictions attached to the establishment of the national park reserve. For example, this might involve allocating a different area for hunting and educating the hunting community that the protection of the area will increase species resurgence, resulting in more available game for hunting in the future. Although the locals in opposition to the park are a minority, the continuation of transparency and updating the public on park progress, species status, successes, and failures, we believe will be beneficial for the park and its communities.

References

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