Jenna Brunt*
On June 6, 2024, Legal Advocates for Nature’s Defence (LAND) was one of many nonprofits across Canada to host an event in recognition of Ocean Week Canada 2024. Our event, “Protecting Indigenous Laws, Lands and Waters” illustrated the urgent need for an effective legal framework to safeguard Canada’s biodiversity and highlighted the critical role that Indigenous laws and knowledge play in these efforts.
Getting to know the Arctic Watershed
It is often overlooked that Ontario is among the provinces with an oceanic coastline and most of Ontario’s land mass is part of the Arctic Watershed.
The Arctic Watershed is an important geographical region where rivers, lakes, and streams to the north drain into Hudson Bay, while those to the south flow into the Great Lakes. These waters defined territorial boundaries that formed the southern limits of Rupert’s Land, a large territory granted to the Hudson’s Bay Company in 1670. Later, these waters formed the northern boundary of Treaty lands, such as the Robinson-Superior Treaty and Treaty 9.
This watershed is also home to the carbon-rich Hudson Bay-James Bay Lowlands, and watersheds which include the Attawapiskat, Kapiskau, Ekwan, Opinnagau, Albany and Winisk rivers. This area contains some of the highest freshwater species diversity and lowest levels of environmental disruption in Canada.
Biodiversity Crisis Exposes Gaps in our Environmental Law
This area, along with many other areas around the world, is facing a biodiversity crisis, with millions of species at risk of extinction unless action is taken to reduce the intensity of drivers of biodiversity loss. Despite a growing understanding of ecosystem health, that biodiversity underpins, many countries, including Canada, are facing challenges in halting and reversing biodiversity and nature loss. In recognition of this crisis, Canada has made international commitments to nature and biodiversity conservation.
In 1992, Canada signed and ratified the United Nations Convention on Biological Diversity which committed Canada to proactive planning and protection of biodiversity. More recently, in 2022, Canada, along with 195 member nations, committed to the Kunming-Montreal Global Biodiversity Framework Agreement, as agreed to at the meeting of the Conference of the Parties to the United Nations Convention on Biological Diversity, or COP15. This historic global framework aims to safeguard nature, halt and reverse biodiversity loss and put nature on a path to recovery by 2050.
The Kunming-Montreal Global Biodiversity itself comprises four goals and 23 targets to be achieved by 2030. Among the targets set in the Biodiversity Framework is Target 22:
Target 22: “Ensure the full, equitable, inclusive, effective and gender-responsive representation and participation in decision-making, and access to justice and information related to biodiversity by Indigenous peoples and local communities, respecting their cultures and their rights over lands, territories, resources, and traditional knowledge, […] and ensure the full protection of environmental human rights defenders.”
This target is the most significant for Indigenous Peoples’ participation in decision-making, as it signals the requirement to ensure their equitable and full participation in conservation matters.
New Biodiversity Law Offers Hope for Nature’s Protection
In keeping with the United Nations Kunming-Montreal Biodiversity Framework, the federal environment Minister, Steven Guilbeault, introduced Bill C-73, the Nature Accountability Act in June 2024. This bill marks a milestone in Canadian environmental law as the first ever proposed law aimed at protecting biodiversity. Once passed, it would commit the federal government to recognize the biodiversity targets and provide the framework and public accountability so we know if Canada is delivering on its Targets, including Target 22.
Safeguarding Biodiversity means Respecting Indigenous Rights
Target 22 makes reference to the rights of Indigenous peoples over lands, territories, and resources. To best ensure we uphold and respect these rights, it’s helpful to understand the spectrum of activities, responsibilities, and values that Indigenous rights encompass.
Inherent rights, Treaty rights, and international human rights are among those that make up ‘Indigenous rights.’
- Inherent rights exist independently of any Crown authority. This includes the right to self-determination and the practice of culture and customs.
- Treaty rights are protected under the Canadian Constitution and are based on treaties signed between First Nations and the Crown.
- International human rights, including those from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), require Canada to seek free, prior, and informed consent from Indigenous peoples before any development on Indigenous lands.
- Indigenous Natural Laws, which teach respect and responsibility to lands, have been more effective at protecting the health of ecosystems and species, than the traditional conservation practices established by the Crown. Yet, Indigenous rights and participation are often overlooked in proposed development projects.
To advance and respect Indigenous rights, we must continue advocating for the inclusion of Indigenous community members from First Nations, who are the grassroots, to be included in any decision and have access to information, when a development is proposed that could adversely affect any of these rights.
To learn more about Indigenous rights, we encourage you to watch a film featuring the Friends of the Attawapiskat River, who recently paddled down the Attawapiskat River in recognition of Treaty promises to share the land, to be honest, and to be kind. We shared this inspiring short film, which highlights the Friends’ deep connection to the river and ongoing efforts to protect it, at our Ocean Week 2024 event. We encourage you to watch it here and share.
The Path Forward
Since time immemorial, Indigenous groups have protected and stewarded these lands and waters. Indigenous leadership must guide biodiversity conservation efforts. Proper implementation of Target 22 into the new Nature Accountability Act ushered in by Bill C-73 will help create the space to advocate for First Nations who, relying on their own legal traditions, have declared protected areas over lands and waters.
By integrating Indigenous natural laws that emphasize respect and responsibility to the land, Canada can enhance the health of its ecosystems and biodiversity, ensuring a healthy ocean and a sustainable, inclusive future for all.
*Jenna Brunt joins LAND as our first summer law student. Jenna is entering her third year of law school at the Bora Laskin Faculty of Law at Lakehead University in Thunder Bay. Her placement has been made possible thanks to the generous contribution by the Law Foundation of Ontario, who funds placements where students can gain legal experience in the fields of Indigenous and environmental law, and support access to justice issues. Jenna is passionate about pursuing a career in environmental law, with particular focus on advocating for the rights and interests of Indigenous communities.
Photo credit: Paddler on the Attawapiskat River. Image Source: Friends of the Attawapiskat River, 2023