Indigenous Rights and Private Land Conservation: Opening the Door to Collective Responsibility
Full Transcript:
Question: Can you tell us the story of how this report came about?
Larry Innes:
I’ll start by saying this report emerged from two different recognitions. The first, that land trusts or private land conservation more generally has an important place within the conservation toolkit and has been extensively and successfully deployed in many provinces across the country.
And there’s a long history of organizations with long and deep experience in this area, primarily working to acquire private lands that have high conservation value either through direct purchases, through conservation easements, or other forms of tenure less than title as well as through endowments, where people are able to pass on lands they’ve enjoyed as a legacy to be enjoyed by others in the future when they pass.
So that history and the importance of this sector within the conservation movement was clearly acknowledged, but there’s also the other side of this in which Indigenous Peoples and their relationships to land have been hugely disrupted by the very idea of private land and the forms of European tenure and land titles that have accompanied settlement and colonization throughout the territory have in many ways created barriers to reconciliation.
So we were approached as the Conservation through Reconciliation Partnership by the Nature Conservancy of Canada, which is one of the largest and best established land trust, private land conservation organizations in the country, to explore these tensions with a view to providing recommendations on how land trusts can better fulfill their legal obligations to Indigenous Peoples and look forward to a future in which reconciliation, Indigenous governance, and Indigenous self-determination are better set in the landscape for how conservation is done.
Which of course is one of the main goals of the Conservation through Reconciliation Partnership. So, with that background, Ian and I got to work.
Ian Attridge:
Yeah, and it’s really been a pleasure working with Larry and Skeena Lawson who is also a contributor, a law student at the University of Victoria, and has worked with Larry and assisted us in doing some of this background legal research to help us understand some of the cases, the legal principles, to really dive deeply into some of this legal background.
And I was becoming more familiar with the Conservation through Reconciliation Partnership and about a year ago, in the late 2020, we had established the indigenous land trust circle as part of CRP, Conservation through Reconciliation Partnership.
And we were exploring how Indigenous folks could use the land trust model, and also in my own experience and my own private practice, and work with land trusts particularly in Ontario but in other parts of Turtle Island, that there was a question about how best to work with Indigenous folks, what were the rights and responsibilities at the outset, but then also the opportunities the ways to collaborate and to recognize Indigenous Peoples and their responsibilities on the land.
So, this conversation was coming, was opening up for Indigenous application of the land trust model as well as existing community-based and conservation-oriented land trusts who were trying to explore their responsibilities - where are the opportunities?
And so this was feeding into the wider conversation in the conservation community and we’re thankful that the Nature Conservancy of Canada really put a focus on this and we’re able to support this project and bring this together.
I must say working with Larry and Skeena and the CRP has really been a growing part of my involvement in CRP and the opportunities and conversations I’m having in my own private practice. While it’s been about one report, it is I think opening up conversations within CRP and the wider community.
Question: What are the key takeaways from the report and why are they important?
Larry Innes:
Well, I would say that there’s two streams within the report and they exist in a certain amount of tension. So, you know, Ian’s experience is as a practitioner who works with land trusts to establish land trusts and to secure conservation land.
I’ve come at this from the other perspective, where most of my work is in support of Indigenous governments who are trying to get land back. And I’ll say from the perspective of most of the Indigenous governments that I’ve worked with, exiting private land trusts are seen as a barrier, not as an opportunity. As a problem - not as a solution.
But there are a few examples and a few areas, which we’ll talk about, where Indigenous Peoples have, themselves, set up land trusts. So, it’s far from a black and white issue.
And I think our report really illustrates just how complex and contested issues around ownership are, as a root problem that reconciliation has to address, but also how as an interim step or as a solution in certain contexts, holding land within a land trust, engaging in private land acquisition, can provide an important interim pathway towards reconciliation. And in some circumstances may be the only available solution, using the present legal toolbox.
This may change in the future but certainly, we’re trying to be pragmatic in our approach and look to the principles that underline private land conservation with a view to expanding their reach and expanding their scope so that private land conservation can be more inclusive of Indigenous aspirations and more reflective of Indigenous governance.
So, in essence, this is what our report talks about, is yes, there are many challenges with this model but there may be opportunities. And more importantly, this whole model can evolve to be far more reflective of Indigenous governance and Indigenous ownership, not just private individual or private organization ownership when it comes to lands of conservation importance.
Ian Attridge:
I think some of the takeaways are expressed in part in the title: ‘Respect and Responsibility’. Where we move from clarifying what, say a private, non-profit group involved in conservation, a land trust, we explore the legal duties they may have under various programs and relationships with intersections with government programs, but then to move beyond that, to respect Indigenous jurisdiction and governance and how that can be um applied - what does that look like? Where are some of the lessons that have been gained in those conversations across Turtle Island and how we can then translate?
We have a bit of a translation to how a land trust might apply that. So it’s that shift I think, and exploring some of the history, as we spoke about earlier today, and how we might um transform that history. And as Larry says, the land trusts and private conservation model is part of the toolbox right now but there are certainly many opportunities to expand that and to root it more solidly and to really reassert that Indigenous jurisdiction and governance.
Question: Apart from the key audiences (land trusts and other NGOs) who else would find this report helpful and why?
Larry Innes:
I think there’s a whole range of potential audiences for this. Beginning with legal practitioners who work in the context of what we call real estate law or private property law so that when they’re considering how they approach these questions, they do so with a broader perspective.
I think until very recently, the idea that Indigenous rights had any intersection with private law transactions, whether it would be between individuals for their own private reasons or between individuals and private land conservation organizations or land trusts, was pretty marginal.
You know, there may have been some awareness of these issues in certain circumstances. Often that awareness came after the fact, after folks involved in this kind of a transaction triggered a reaction or provoked a reaction by an Indigenous group that may have been trying to reacquire those lands which had been taken through the process of settlement and colonization.
So, it was seen as a marginal issue, as opposed to something that, in our view, has to be central to the very way in which we practice, where an awareness of the fact that all land within which is now Canada, was once Indigenous land. And much of it is still unreconciled, is still tied up in systems of dispossession and denial that private land transactions often perpetuate.
So, the first part of truth and reconciliation is of course ‘truth’. And understanding how private lands came to be, in particular circumstances, understanding what Indigenous relationships were, and in many cases still are, to those lands is important and these need to be front of mind for legal advisors, to land trust organizations, and others who are engaged in private land conservation. So that these issues can be addressed as in many ways central issues in moving forward. That’s kind of the first key audience.
The second are funders, whether they be public government funders who have often relied on private land conservation organizations as proxies for implementing government policy. And as we note in the report, this triggers a duty to consult. This is government action even at a distance.
So, putting public governments who fund private land or who facilitate private land conservation into the conversation in ways where they can engage, and they can discharge the Crown’s duties to consult and accommodate and reconcile relationships with Indigenous parties who are affected by their decisions – is another really important audience.
And then finally there’s this larger group of private individuals who hold important conservation lands as private lands. And the land trust community as a whole, which is, and for many reasons, going to continue to be an important part of Canada’s overall conservation land base and overall conservation endowment.
To think about how they as organizations holding private land can create the right relationships with Indigenous parties who have unreconciled interests in those lands. And that points the way forward to conversations with Indigenous governments themselves about how shared interests in maintaining relationships to land, in ensuring that important lands are not adversely developed. And that Indigenous Peoples can continue or have an opportunity after a long period of denial to access to those lands, to exercise rights, and to renew and restore relationships – is the final and perhaps the most important audience for this report.
Ian Attridge:
I would certainly agree. I think Indigenous communities and that while they may, they may not be the direct audience for this paper and this conversation. I think we hope that they will benefit from this and be able to reassert and return responsibilities and roles in the land, access to the land and relationships with others engaging on that landscape including land trusts.
I think for the government side we’re also seeing that as we explore their legal responsibilities, that there could well be some evolution of program understanding, and criteria, and agreements, and relationships with the sector that they are working with. And I think there’s interest from governments as well in the kinds of takeaways that we’re bringing forward in this paper.
Question: In your analysis, what have you learned about the evolution of private land conservation practices in Canada? What more needs to be done?
Ian Attridge:
As I was looking at the history of the land trusts and private land conservation movement in Canada, I’m familiar with a bunch of those pieces but certainly came to know more of it as I dug in a bit further. And really seeing the shift from, in many cases quite privileged people, hunting and service clubs and natural history organizations who had some ownership of important pieces of land – wetlands and other natural areas.
And then seeing in the 60s and then a real flourishing in the 1990s of the land trust movement in Canada. Learning from a really growing land trust movement in the United States and uh some of the foundations and trusts that were established in Britain.
So, bringing some of those concepts and applications and organizations to Canada. I certainly learned more of that in the process of this paper and so I appreciate that. In our current system, and it became apparent to us as we looked at the role and connection between land trusts and Indigenous communities, that we’re still seeing, I would say, few relationships or limited relationships between the land trust community and Indigenous governments and organizations.
And we see some examples of where that is coming to the fore and that is quite promising. And groups like the Nature Conservancy of Canada are taking a strong interest in exploring this. But we see that many more local land trusts perhaps don’t have the full and active relationship with the Indigenous communities of their area and so they’re not aligned with Indigenous priorities – such as cultural keystone species.
And so, we see that land trusts may perpetuate sort of a western notion of conservation that exclude human uses and distances those relationships.
I think what we can see in our research and our conversations and what we try to highlight in the paper is that there’s a need to establish a more broader shift in the culture of conservation organizations and society at large. An understanding of the responsibilities and the opportunities, and how, at a practical level – what are some of those processes and lessons that we can learn?
And what are the implications of the past history of private conservation? I think as Larry highlighted, we need to look at the truth before we look at reconciliation. And this paper in part identifies some of those elements and points to initiatives, internationally as well as across Turtle Island, where we may see some possibilities and some progress in this regard.
Question: Can you provide a concrete example of a land securement process where Indigenous governments or Nations were meaningfully engaged, and Indigenous jurisdiction was respected?
Ian Attridge:
Well, there’s maybe a few examples I might be able to highlight. One that I’ve become peripherally aware of and that we note in the paper is an example of where private individuals owned an island off of Vancouver Island in the Salish Sea and that there was a professor who took a particular interest in that property and connected those private individuals with a land trust, the land conservancy who purchased the land, and then were able to transfer that to the Saanich Council.
And so, working with the Indigenous folks there to bring this island back to their responsibilities, to their governance, and to their use. And it was noted in some of the media accounts that this may have been the first example of a direct transfer. I know that other land trusts are working with Indigenous communities. I know that the Nature Conservancy of Canada has worked with a number of communities as have others. So, there are a number of examples of collaboration. This may the most clear example of a return of land to Indigenous governance and use.
I think of also on the Rice Lake Plains, just south of Peterborough or Nogojiwanong, just to the east of Toronto, where this is the easternmost extension of the great prairies of Turtle Island. But the Alderville First Nation and the Nature Conservancy of Canada and other conservation parties have worked together to restore and reclaim and collaborate to really restore that prairie ecosystem which is one of the rarest left in eastern Canada.
So that’s another example. And I think of the Walpole Island land trust based within the Walpole Island First Nation where they have worked both on their own unceded territory to protect an important parcel of very rare prairie there, and as well in their larger traditional territory to lease a marsh and to restore that marsh.
So, we’re seeing Indigenous land trusts, we’re seeing community-based land trusts, we’re seeing national land trusts, involved in these collaborations. And I think we’re going to see more of that and hopefully, this paper contributes to that conversation and that opportunity.
Question: What impact do you hope this report will have within the conservation sector in Canada?
Larry Innes:
The primary goal of the paper is to prompt some new thinking in how private land conservation works. So, right from the start when folks are contemplating private land conservation securement, looking to acquire properties, whether it be in a full purchase arrangement or in obtaining a conservation easement on those lands, we want people to begin by first understanding the history of those lands and connecting that history to, on the one hand the pattern of settlement and colonization which led to it becoming private, but also as an opportunity to reconcile with the Indigenous history of that place. And where necessary, provide the appropriate pathways for inclusion, meaningful accommodation of the affected Indigenous groups.
And whether it’s a purely private-party-to-private-party-transfer or whether it is something that is in some way facilitated by government, we believe that there are moral and ethical reasons, as well as potentially legal reasons, why folks involved in land trusts and securement would want to do that.
So that’s the big change that we’re hoping to see on the ground in private land conservation practice, as a first but very important step towards then building the bigger and better private land conservation solution, that can only come about with meaningful partnership with Indigenous Peoples.
And so, moving away from this idea of purely private land conservation, which exists, you know, outside of the historical context of those lands, to one that is inclusive of the Indigenous interest in those lands and respectful of Indigenous governance and self-determination. And, you know, ultimately contributing towards reconciliation through some of the very new but also very interesting ways that conservation goals can be accomplished in ways that support and uplift and centre Indigenous governance and practice – not just private interests as they are conceived within the Canadian mainstream.
So that’s the big picture objective of this report – is to transform practice from being purely private to one that is potentially a private and Indigenous partnership, to ultimately supporting a realization that to accomplish our goals as Canadians, to reconcile our settler history with the Indigenous past and present of the places where we now live.
It’s going to have to be far more meaningful than a land acknowledgment – it’s going to have to, have to mean that land goes back. That governance and the ways that lands are managed includes, and in some ways defers, to Indigenous jurisdictions.
And our report gets into some of the details of how that might occur. But we recognize that this is the start of a long conversation and it’s going to be a long conversation in the particular contexts where private land conservation and particular Indigenous governments work – there’s no one answer that’s going to apply nationally. It’s going to be on a Nation-to-Nation basis in the places where these private land conservation transactions have occurred or are occurring.
Ian Attridge
Thanks, Larry. I think the paper may act as a bit of a wake-up call for much of the land trust community. There are some there who are aware of some of these directions. And governments, as they are considering their responsibilities and the opportunities to foster the kind of relationships and that bigger vision that Larry was just speaking to.
I think we may also see, and we highlight this a bit in the paper, the opportunity to bring the larger conservation conversations that are happening at the international level, to take some of the lessons that have evolved over recent decades in more diverse cultural perspectives in the conservation community and the guidance and directions that are coming from international bodies, and bring some of that home. How does that relate to our private land conservation practice here in Canada?
And so, I think we may see the um, the evolution of the standards and practices that apply to land trusts. There’s a national set of standards and practices that can foster more of this conversation – the last review was incomplete but included some developments and I think there’s more conversation to happen there.
We may also see that there is more opportunities for Indigenous-led land trusts to enhance their, the land base for Indigenous communities to use some of these land acquisition tools and financial incentives that are in place, but really those are, as Larry has identified, sort of an interim opportunity and the conversation needs to continue and grow in order to move into something much more inclusive. And perhaps to take a bit of a step back, a bit of a culture shift from what we tend to call ‘private land conservation’ and look at this as something that is not just private but really is part of our collective responsibility – as settlers, as Indigenous communities, as people – relating to land in this place.
And I think during the conversations around the pandemic where we are looking at what does it mean in our own individual lives and living, but also as we live that out in our collective responsibilities. That’s an ongoing conversation and we may see the recognition of that broader community responsibility as that plays out in the conservation conversation as well.
Question: Do you have any additional thoughts you would like to share?
Ian Attridge
I found that working on this paper has drawn me in to more of the conversations that are happening through the CRP process and with its network of folks engaged in this conversation across the country and beyond.
So that’s something that personally I take from this exercise, the chance to work with Larry and Skeena and others on the paper, but that becomes a window, a door into the conversations that we’re now having with law students at Osgoode Hall Law School who are assisting us with some research, some further research, the Indigenous Land Trust Circle and some of the other papers and research and conversations we’re having through CRP.
The paper is not just a private conversation or research exercise it’s really a door to further conversations within CRP and with the larger conservation community. And I express my appreciation for the opportunity to work on it and to walk through that door and discover lots more things for my growth and for the growth of this community.
Larry Innes
And for myself, I very much share Ian’s view that the opportunity to do this work, and to do it in the context of the Conservation through Reconciliation Partnership, with groups like NCC, with institutions like the University of Victoria, with students and practitioners from across the country who’ve informed this work, leads us to better conversations going forward with a wider circle of folks involved in different aspects of this work.
And I’ll say there are significant challenges that need to be addressed in the private land conservation space, but as we’ve flagged those challenges, as we’ve talked then through with colleagues in the development of this work, what we see is a really sincere willingness to engage with the questions and to do the hard work that’s necessary to transform practice. And that for me is the most exciting part of these adventures.
We have the opportunity to ask questions, to engage with people, and to begin to dialogue around what a solution looks like, which is very much part of the spirit of this work. So, it’s a tremendous opportunity to be involved and I hope that our listeners and readers pick up this work, consider how it could apply in their contexts, and then get involved with folks that they have relationships with to move these conservation conversations forward in a good way. So masi, masi cho.