Wild Mushrooms or Wild Land: Do you have permission to pick wild food on “Crown” land?

How a mundane practice like mushroom picking can disregard or disrespect First Nations rights and title. And how education can help.

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Earlier this summer, I stumbled onto a patch of resistance to reconciliation. My fellow settler neighbours did not agree that the “Crown” land behind their homes was the traditional, unceded territory of the Secwepemc Nation. My neighbours assumed that all non-reserve land had to belong to the government and therefore, what was on it, was theirs for the taking. This was despite a solid public school education on the history of how Canada was settled.

One of my takeaways from this interaction is that the education of First Nation issues needs to include discussions about how individual actions can respect First Nations rights and title. My neighbours knew the history of how Canada was settled and yet they assumed that all Crown land was Canada’s. This was despite recent new stories that the Supreme Court of Canada upheld a Specific Claims Tribunal decision that found that the Crown broke a treaty with the Secwepemc Nation and wrongfully took land from them (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4; see https://www.cbc.ca/news/politics/supreme-court-williams-lake-1.4516522). My neighbours and I live in a town that is literally on stolen land, and that big forests around us may be Crown land on paper but in actual fact it is the unceded traditional territory of the Secwepemc.

Not all places in Canada have the convenience of knowing whose land you live on and a Supreme Court case confirming that the land was wrongfully stolen. This information is accessible to everyone in my town and it made a splash in the news when the decision first came out. This information, coupled with the education that I assumed all my neighbours received about the historical injustice of colonialism, resulted in what I assumed was a common understanding that the land around them was belonging to the Secwepemc First Nation.

It was against this backdrop that we rolled into the early summer months, the first summer after the wildfires of 2017. For several months ahead of this summer, my husband Chief Russ Myers of the Yunesit’in band in Tsilhqot’in First Nation, had been working with his nation around setting up a permitting system for picking wild mushrooms in the Tsilhqot’in traditional territory (http://www.tsilhqotin.ca/Portals/0/PDFs/Press%20Releases/2018_05_18_MurshroomPermitPR.pdf).

The Tsilhqot’in knew that there would be many mushroom pickers coming into the area and that the Province of British Columbia would not regulate them. It was up to them to create a system to ensure that the mushrooms were picked in ecologically sustainable areas.

This system had already been announced when my neighbours made their own announcement on Facebook; these women had recently returned from the traditional territory of Secwepemc Nation and had picked basketfuls of wild mushrooms. They were happy to get some healthy, organic, (free) non-GMO food.

Their glee at picking wild foods was shocking to me. I sent them messages, asking if they secured permissions from the Secwepemc Nation. My fellow settler neighbours were either silently cold or hotly angered at these questions. One woman responded to my suggestion by posting her outrage on Facebook. My other neighbours chimed in. The 93 comment thread lay clear that many people believe that it was their right to pick wild mushrooms on “Crown” land.

When I saw this, I was reminded of a few paragraphs that the Chief Justice McLachlin wrote in the Supreme Court decision, Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257. I had been reading this decision earlier in the year, and paragraphs 114-115 always struck me as infuriating. In these paragraphs, Chief Justice McLachlin, speaking for the Court, assumes that all non-reserve and non-treaty land must belong to the Crown because to assume otherwise would leave “no one in charge of the forests that cover hundreds of thousands of hectares and represent a resource of enormous value.” This assumption overlooks the number of treaties that were made and broken by the Crown, such as in the Williams Lake case. It also overlooks the evidence that we have that many First Nations in Canada were “managing” the forests and lands without Crown approval or knowledge. These Nations did this because they had been doing it for hundreds of years prior to colonial settlement.

It’s a funny thing to see the Chief Justice and a disgruntled white lady on Facebook arrive at the same blind spot. Two people, with radically different knowledges of the law, First Nations and history, both arrive at the same, unsupportive, assumption: if I don’t know this is Native land, then it must be Crown land.

Most of the land that we have today emerged from the historic wrongs that we all learn about in school. In schools, students look at these wrongs and perhaps will look at the current legal and political systems designed to address these wrongs. I think that this leaves students with an idea of what governments or industry need to do, but it doesn’t give the students a sense of what they need to do as individuals to respect the First Nations whose land they live on. How to live ethically if the land that you live on is stolen?

To ask permissions from the First Nation to harvest wild food is a practice that is small but potentially impactful. How one asks for permission to harvest wild foods is a delicate act; it requires taking the time to learn whose land it belongs to, to reach out and contact that First Nation, to listen and really try to hear the response, which might be in a language which is not yours. This process may not be easy, and there probably is not a universal approach. But by even trying to do this, settlers are showing government and industry and all our neighbours whose land and laws we are choosing to follow. An education that connects historic wrongs with how individual actions can help reconcile the past is one way that we can get other settlers to begin this kind of practice.

After I had sent my neighbour the questions, the Secwepemc Nation came out with a map of the areas where mushroom picking was allowed. Other Secwepemc bands have also put up signage instructing mushroom pickers and buyers that they were in the unceded territory of the Secwepemc people. In a move that shows how deeply people recent “Crown” land from belonging to Fist Nations, one of these signs outside of Lac Du Boise Grasslands Park near Kamloops was vandalized with a violent and crude message (https://www.kamloopsmatters.com/local-news/education-is-the-only-answer-to-ignorance-band-chief-responds-to-racist-comments-found-on-vandalized-sign-near-kamloops-973042).

How settlers pick wild mushrooms and other wild food can be a case study on how individuals can take small steps to recognize and reinforce (or deny and erase) First Nations right and title. Teaching the “Big History” or “Big Law” of First Nations rights and title is important, but may not be enough. In these lessons, there is an opportunity to also interrogate what mundane, everyday practices that settlers may be doing that disregards First Nations rights and title. It is in these small acts, as simple as picking a blueberry, or talking to your neighbour, that can help us all carry the responsibilities of reconciliation.

 

Top photo: Wild mushroom, known as a morel, growing on Fox Mountain, on Secwepemc territory, in Williams Lake, Spring 2018. Photo credit: Frances McCoubrey.
Many thanks to Rebecca Johnson and Gillian Calder for their helpful and patient edits and suggestions. 

Indigenous Law and Procedure in Action: Vancouver Island Esquimalt/Ditidaht Hunting Case

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Roosevelt Elk

The TRC Calls to Action speak to the importance (for law students, lawyers, doctors, nurses, journalists, bureaucrats, citizens) of learning about:

  • Treaties
  • Aboriginal rights
  • Indigenous law
  • Aboriginal-Crown Relations

If you are looking for examples of the application of Indigenous Law and procedure in a contemporary context, then here is a great case for you, “In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

The case started in BC Provincial Court, involving two men who were charged with hunting/poaching in violation of the BC Wildlife Act.  I first heard about the case in a newspaper report, and was completely taken with it!

This case has been positively hope-inducing in me (a less than common feeling for one who spends much of her time teaching Canadian Criminal Law).  Below is a copy of the ILRU Case Note, followed by a few thoughts on ways this case might be used in a variety of law school contexts/courses.

ILRU Case Note: In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

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Map of BC First Nations

Context: Two Coast Salish men from the urban Esquimalt nation (in Victoria) were charged by conservation officers with two counts of poaching under the BC Wildlife Act. The two men initially asserted what they believed was a treaty right to hunt on unoccupied Crown land. However, the Ditidaht [1] (in whose historic territory the Esquimalt men had been hunting), were concerned about over-hunting of Roosevelt Elk.  They were in favour of conservation, and the conviction of poachers.

As things unfolded, it also became clear that the two Esquimalt hunters had not sought permission from the Ditidaht to hunt in their territory, nor had they complied with Indigenous conventions in the manner of their hunt, breaching both Ditidaht and Esquimalt legal principles, and bringing shame on the communities.

Application: The case was heard in First Nations Court by Justice Marion Buller (now Chief Commissioner for the MMIWG Inquiry). With the consent of the Crown, the accused and the two concerned Nations, the Court made space for the Esquimalt and Ditidaht communities to work together, using their respective laws and procedures, to resolve the case.

The intial hearing, drawing on Coast Salish procedures for dispute resolution, involved a larger number of interested parties, including Elders, Chiefs, Counsellors and other members of the Esquimalt, Cowichan and Ditidaht nations. The communities spoke to not only current treaty and provincial law, but also to older laws between the two nations respecting hunting. They agreed that seeking permission from the other community was a fundamental law that continued to have force. The hunters accepted responsibility for their conduct, and agreed to accept the resolution that would be determined by the nations.

A number of procedural steps were necessary, as the violation of law here imposed responsibilities on not only the two hunters, but the Esquimalt community as a whole. As a result, the hunters were required to visit each household in Esquimalt to tell them what they had done, and to invite them to a meeting, which would be held in the Esquimalt Long House and involving people from both nations. At this meeting (180 people in attendance), representatives of the Ditidaht were wrapped in blankets and presented with gifts as a way of acknowledging the harm that was done, and committing to the re-establishment of good relations. The hunters are to refrain from hunting for a year, and are required to do work for the community, doing maintenance and service at the longhouse at least twice a week for the year. This was to function not as punishment, but as an opportunity to be a model for youth, and to demonstrate the continuing obligations and operation of Coast Salish and Ditidaht law.

Significance: This case is a powerful and hopeful example of the application of Indigenous law in ways that provide a meaningful resolution to a very real problem. A second important dimension of this case is that it is an example of intersocietal law. That is, this is not only a conflict over hunting, but a conflict between communities from two distinct legal orders. It shows the power of Indigenous law and procedure to create the conditions for people from different legal traditions to come together to work through a shared problem in ways which link in appropriate decision-makers, who are positioned to better identify the challenges, and construct meaningful solutions. Note that the procedures also supported an increase in legal literacy (increased familiarity in each community with the legal terrain of the other), and the building of community connections.

Even more powerfully, in the process of resolving this specific hunting/poaching claim, the two communities were able to identify a bigger systemic challenge:  given the pattern of land development in this territory, the Esquimalt do not have access to many areas in which to exercise hunting rights. There is thus a pressure to hunt in the other territory with potential to impact on wildlife.

The result of the case has thus also been that the two First Nations have begun discussions aimed at developing protocols to govern hunting in Ditidaht territory by Esquimalt members, to support the ability of people in urban settings to have access to hunting.

In short, what could have otherwise been a conventional hunting sentencing case instead has produced an outcome which:

  1. Attends to questions of human safety (drawing on indigenous laws and protocols governing ways, times, and places in which hunting can happen),
  2. Attends to questions of conservation (drawing on Indigenous laws related to stewardship of land and animals),
  3. Attends to questions of inter-community conflict, drawing on the point of contact as an occasion to work together to collectively address a shared problem.

[1] The Ditidaht and the Pacheenaht people speak closely-related dialects of a language called Nitinaht or “Ditidaht.” Ditidaht, is one of three closely-related languages (Nitinaht, Makah, and Westcoast or Nuu-chah-nulh) forming the South Wakashan sub-group of the Wakashan Language Family. The Nitinaht and Makah languages are much more closely related to each other than they are to Nuu-chah-nulh. From http://www.ditidaht.ca/.

ADDITIONAL RESOURCES:

  • one could supplement this case through reference to two ILRU reports:  Coast Salish Legal Traditions Report; ILRU, Coast Salish Civil Procedure Report
  • There are some helpful video talks available on line on Coast Salish Legal Traditions & the Canadian State by Professor Sarah Morales.

THOUGHTS ON USING THIS CASE IN THE LAW SCHOOL CONTEXT

  • This case is great for teaching “Sentencing”.   It was really wonderful to be able to give students some examples of sentencing cases that did not induce despair.  It was also useful for helping them see that some cases may involve MORE work for offenders, rather than less.  Certainly, the students would agree that it would not be ‘easy’ to have to go door to door in the community to let people know about a wrong you had done.  The case also made visible the ways that many people in a community could be brought together in order to produce a meaningfully better outcome.
  • This case is great for troubling the divide between Criminal/Provincial offences, particularly in the context of Indigenous Laws.  To call a hunting case ‘provincial’ is in many ways to fundamentally misconstrue the depth of relationships between indigenous peoples and animals.  In many contexts, it is perhaps most appropriate to understand the relations between many Indigenous peoples and animals through the language of treaty (this is visible in Westcoast Nation stories about the Salmon People, or in Plains stories like The Buffalo Child).  This is visible in this hunting case, where Esquimalt and Ditidaht parties agreed that, in the past, a second violation of laws around hunting could have resulted in the punishment of death.  This indicates the importance of Indigenous laws pertaining to human/animal relations.  Michael Ashe’s 1989 article on asche-wildlife-cpp-1989 might be a useful resource for supplementing such a discussion.
  • This case is great for exploring Conflict Resolution in the context of International Law.   On the one hand, this case could be treated as simply as instance of alternative measures within Criminal Law.  However, there are powerful reasons to see this as rather an example of conflict at the intersection of THREE legal orders (BC/Canadian; Esquimalt; Ditidaht).  What we see in some ways is the visionary willingness of the BC Court System to step to the side, to make space for the other two first nations to draw on their own legal procedures and institutions to solve a challenge that touched deeply on legal obligations and responsibilities in those nations.  The eventual solution is one that accords with the needs of all three legal orders.  From my perspective as a reader, it seemed that the Esquimalt and Ditidaht legal orders contained powerful problem solving resources, ones that provided a very successful resolution, one that is hard to imagine within the more conventional boundaries of the BC Wildlife Act. The case provides a great model for dispute resolution between conflicting legal orders.