Sh-tiiwun: The Struggle of the Coast Salish People to Protect, Defend and Steward their Traditional Territories in a Period of Increased Extractive Development

By Sarah Morales[1]

Act One: Introduction[2]

 Chief Sam Baker[3]:     It’s bullshit Cameron.

Cameron Wilkins[4]:    Chief –

Sam:                            You’re snowing us.  How is it that I don’t find out from you, but from my own members, that there’s a plan to shut out Tribal access in the buffer zone?  The Nation is pissed and I’m starting to look like an idiot.

Cameron:                   I just don’t know where they’re getting their information –

Sam:                            I’ve always liked our little off-the-record chats since we can cut the shit and talk to each other like men.  But lately, you’re a pussy Cameron.  You’re not telling me what’s going on and it’s pissing me off.

Cameron:                   Fine, Sam.  But I’m giving you everything I got right now.  Frankly, I am as clueless as you.

Sam:                            So, all these additional surveys around the plant that FoxFibre is doing is just, what?

Cameron:                   I honestly don’t know.  But I’ll find out.

Sam:                            Please do.

.      .      .      .

It is impossible to turn on the news and not hear of the conflicts between Indigenous peoples and extractive industries occurring all over the world.  The Standing Rock Sioux tribe has protested the Dakota Access Pipeline and their protests have garnered media attention worldwide.  The Treaty 8 First Nations, in particular the Prophet River and West Moberly First Nations, have been actively objecting to the construction of the Site C dam in northwestern British Columbia, even caravanning across the country to host a demonstration on Parliament Hill in September 2016.  Furthermore, over the past three years, the Tsleil-Waututh Nation, and other Coast Salish communities, has been publically objecting to the Kinder Morgan Trans Mountain pipeline expansion.  Although these developments are varying and affect different Indigenous nations in distinctive ways, at the heart of these conflicts is the inability of the proponents, and the Canadian government, to recognize and respect Indigenous legal obligations to their traditional territories.

As so aptly described in John Borrows seminal work, Canada’s Indigenous Constitution[5], Indigenous peoples have developed systems to maintain and regulate their relations since time immemorial.  Developed through norms and practices, these laws governed all aspects of life, from resolving disputes, fishing and hunting practices, caring for children, property rights etc.  Passed down through stories, songs, art, artifacts, ceremonies and practices, these legal traditions continue to have meaning and relevance in the hearts and minds of Indigenous people, families, communities and nations today.  In fact, there are many Indigenous communities in Canada today who still rely on these legal traditions to guide their affairs and decision-making.[6]

Many of the laws and traditions that still continue to have influence in Indigenous communities today relate to land and stewardship responsibilities.[7]  This is not hard to understand, given the special relationship that Indigenous peoples maintain with the landscapes they have inhabited since time immemorial.  The teachings of my Coast Salish Elders reinforce this understanding.

I want you to know that when I speak, I speak from my heart – for my Nation and for my people.  The land is an inheritance that I received from our ancestors. Part of that inheritance includes the traditions and sacred and ceremonial rights that go with the land and our culture.  I come from this land.  My ancestors come from the land.  I am now a living being for this generation but my ancestors are connected to the land and I appreciate what they’ve given me and what they’ve left behind for us.  You can’t separate land and culture.[8]

The Hul’q’umi’num’ word most often used to refer to our teachings, or “laws”, snuw’uyulh[9] translates roughly to “our way of being on Mother Earth.”  As so aptly stated by my elder, George Harris, the Coast Salish people inherited the land from our First Ancestors.  Along with the physical inheritance of the earth, we also inherited the laws and legal practices associated with our traditional territories.[10]  The Hul’qumi’num Mustimuhw[11] believe that their snuw’uyulh and the laws that generate from it, have their origin in the First Ancestors.[12]  Accordingly, these ancestral stories re-affirm the Hul’qumi’num Mustimuhw’s ancient and ancestral connections to these landmarks within the Coast Salish World and in turn, these landscapes hold within them fundamental laws for the Hul’qumi’num Mustimuhw to rely upon.[13]  Similarly, Tsleil-Waututh laws and legal obligations also flow from the Creator.[14]  The Tsleil-Waututh Creation Story recounts how the Creator transformed the first Tsleil-Watt man, created the first Tsleil-Watt woman and ensured that they were taught the legal obligations of reciprocal respect and caring for each other and for all elements of their territory, the environment and the earth.[15]  Accordingly, we have legal obligations to both the earth and our ancestors that relate to our stewardship of these lands.

This paper will attempt to describe some of these Coast Salish legal principles, within the context of increased extractive development within our traditional territories.  Three main issues will be explored.  First, who has the authority to make these decisions?  Second, what are our legal obligations when developments are authorized on sacred sites?  Third, what Coast Salish stewardship laws are important to the discussion around extractive development?

Act Two:        Coast Salish Legal Traditions & Decision-Making Authority

Marissa Duncan:[16]    Why did you guys let that plant go through, uncle?

Sam:                            Oh.

Ronnie Duncan :[17]     It’s a fair question.

James Duncan:[18]        Oh crap, you guys getting political …

Sam:                            Haha, right?  I haven’t even finished my coffee yet.

Marissa:                      But seriously, why?

Sam:                            It was a long process ‘Riss, I think you were in grade 3 when it all started, the company had to meet all the Nation’s conditions set forth, all 25 –

Marissa:                      Yeah, I know that –

Sam:                            And they complied, condition by condition –

Marissa:                      Yeah, but why?  You know that fracked gas contaminates the earth –

Sam:                            And they’re improving extraction methods –

Marissa:                      No, but, that’s not the point.  Why not just let the Earth be?  Is it just money?

Sam:                            It was a business decision.  Yes.  For the good and the security of the Nation.

Marissa:                      Yes, but –

James:                         Just shut up Marissa.  Let the Chief eat his breakfast.  Jesus.

.      .      .      .

 Although the conflict between Indigenous groups and industry and/or government are often the most public,[19] frequently there are internal conflicts within the communities themselves, and between Nations, pertaining to the topic of increased extractive development and potential impact benefit agreements.  The disagreements between those who would welcome the development projects, and their potential socio and economic benefits, and those who are opposed, raise important questions around legitimacy and decision-making processes.  In particular, debates within and between communities over the character of their culture, the nature of their traditions, and the legitimacy of existing structures of representation.[20]

Oftentimes the conflict is between leaders who would choose to work with proponents through the development of impact benefits agreements (IBA) and community members, who vehemently oppose any further interference with and destruction of their traditional territories.  In some instances, it is a sense of pragmatism that seems to influence the leaderships’ position on these matters.  Cowichan elder, and interim Executive Director of the Khowutzun Development Corporation, Ernie Elliott expressed the following:

We have to accept the fact that it’s [development] coming, whether we like it or not.  We can let the companies know our concerns … but we have to accept that it’s going to come anyways.[21]

If the past has us anything, it is that Indigenous peoples are at a strong disadvantage when it comes to litigating and negotiating against large-scale development projects viewed as necessary for growing Canada’s economy.  Squamish Chief Ian Campbell, in discussing the Squamish Nation’s decision to work with the proponent of the LNG project in their traditional territory stated:

If you look at this as strength of title in court, it would probably be challenging to pull full title within the current case law.  So considering or options of litigate, mitigate, negotiate or blockade, we opted to negotiate.  We thought that negotiating would put the nation in the best position of strength to protect and enhance our aboriginal rights and title.[22]

One cannot overlook the influence that Canadian law necessarily has on the decision making of Indigenous leaders.

However, this does not necessarily mean that Indigenous leaders are not also abiding by their own legal traditions in coming to these decisions.  Many Coast Salish leaders who I have spoken with share a similar view to Ernie Elliott, when he expressed to me: “We were put here to look after the land.  We have to do everything we can to steward it.”[23]  That being said, they are also cognizant of the “impact that economic development can have on the quality of life on reserve, as long as it’s on our terms.”[24]  So oftentimes they are trying to find a balance between these sometimes conflicting priorities.  The result has been separate reports, written in accessible plain language, community consultations and the creation of joint ventures, which ensures representation within the corporate structure.[25]

The process utilized by the Squamish Nation to deal with the proponents of the LNG development within their traditional territory is a strong example of Indigenous leaders exercising their own authority to make decisions regarding their aboriginal rights and title.  As Chief Ian Campbell described:

We developed our own process, and brought in the proponent early on to sign on to Squamish’s independent analysis of the proposed liquefied natural gas terminus in Howe Sound.

A lot of our members concerns were about increased industrialization of Howe Sound and if LNG is a good fit [considering the revitalization of Howe Sound].  There was a lot of fear and a lot of concern that LNG would explode and pollute the Sound.  So we wanted to do our own assessment, given our communities’ and leaders’ concerns.  So we ended up making amendments to the provincial environmental assessment,  I believe under sections 13 and 11, that allow the Nation to do a parallel process, where we basically used a lot of the info being submitted in the regulatory process of the EA, so we brought in our experts to verify and validate that information.  We actually commissioned some of our own studies that looked at more of the cultural and spiritual values, stemming from land use planning we did previously.

The proposed site for the LNG is located on a former village site, that was confiscated in the early 1900s and used as a pulp and paper mill for a number of decades.  It’s recognized that there’s an existing penstock running natural gas through that site currently.  When those projects were first developed, Nations were never consulted, compensated and there was no consent.  Case law has changed, which really put the Nation in a position to have some leverage.

We presented a number of times to community members.  This is a very divisive topic.  There’s a lot of emotion.  A lot of people were getting it confused with Kinder Morgan … We tried to mitigate concerns by issuing twenty-five legally binding environmental conditions that we said must all be met, otherwise the Nation can revoke our certificate and seek legal remedies and other remedies to block the project.  So the proponent has sided with us and signed on and they’ve undergone their analysis and said they can achieve all of our conditions, which can allow the Nations to advance to discussing an IBA with all the terms and conditions on the economic side.  If that is satisfied, then we would proceed with the approval of the project.  We are still in those discussions currently.[26]

Despite the fact that Indigenous leaders attempt to ensure that these types of development projects abide by their own laws and practices regarding stewardship and sacred places, oftentimes community members are still not in agreement with the final decision.  This raises the question of whether or not consensus is required before these types of decisions can be made.  In fact, a lot of the Squamish people wanted a referendum on the proposed LNG project, but because it is located off-reserve, leadership did not feel it necessary.[27]  In my research on dispute resolution in the Coast Salish world, the importance of reaching consensus has been stressed to me many times by Elders.[28]

The leaders got together from the different communities and whatever time it took, one day, two days, three days, of deliberations and then they would decide.  They decided, well, you can go … and my community will go … and someone else with sometimes volunteer, I will go …  But the leaders deliberated and then the communities were brought together and this is what I’m talking about – reconciliation.[29]

However, while developing consensus is definitely the high-water mark in dispute resolution practices, it is also acknowledged that reaching consensus is simply not possible in all cases.[30]  Reaching consensus is contingent upon the parties to the dispute and the issue at hand; therefore, many dispute resolution practices in the Coast Salish world allow for an ultimate decision-maker when appropriate, this may be an Elder, a respected leader within the community, or Chief and council.[31]

One thing is clear though, in order to be successful governments need support from the people being governed.  Prior to the Indian Act, Coast Salish leadership was more fluid as it was based on qualities that lent them authority and caused other to call on them for help.[32]  As a result, a leader was dependent upon community support and approval.  As Cowichan elder, Florence James articulated:

The leader is called yulwuhwiw’aqw – the one in the lead, the head leader.  You call it chief … if you go against your own leader … you are bringing down your own head leader, your governance person.[33]

She went on to explain that anytime someone in the community, especially an Elder, spoke against a leader, it would “bring them down” or lessen their authority within the community.[34]  This “shaming” served as a system of accountability within the Coast Salish world.

The same is true in the Coast Salish world today.  In order to be viewed as legitimate, Indigenous governments need to have a cultural match – a fit between the organization of government and the culture of the people.[35]  This does not mean that only “traditional” Indigenous governance structures will ever be legitimate, rather it involves a process of fashioning new governance tools that may mix traditional and contemporary ideas, Indigenous and non-Indigenous ones.[36]  The challenge for Indigenous communities, including the Coast Salish, is to develop effective tools to deal with increased extractive development within traditional territories in a way that builds on and strengthens Indigenous legal principles.

 Act Three:     Coast Salish Legal Traditions & Ancestors

Ian Hanomansing[37]:  I am standing with Ariel Duncan, leader of The Ravens, a group composed of members of the Shmestiyox First Nation who just this morning are occupying the FoxFibre LNG plant that was built on Shmestiyox territory.  What’s the issue Ariel?

Ariel Ducan[38]:            A staff member working within the FoxFibre has reached out to me revealing a secret plan within FoxFibre to cut off access to our sacred site in order to build additional plant storage and auxiliary structures.  Of course that would violate our Aboriginal land rights and is in violation of the agreement.

Membership was not behind this plant being built in the first place but Chief and Council did not give members a voice in the decision, and here we are – so now not only is it contributing to the destruction of Earth but now they’ve been secretly planning this whole time to desecrate our sacred sites that we’ve protected for thousands of years.  This SHIT is FUCKED.  My people were lied to and we need to shut this plant down NOW!

.      .      .      .


As the situation surrounding the Dakota Access Pipeline illustrates, oftentimes the major conflict between these extractive developments and Indigenous communities relates to the existence of sacred or culturally significant sites.  This is due to the differing worldviews about the importance of these sites.  While non-Indigenous peoples tend to view them solely as archaeological sites, valued only for their scientific value, and in many cases, perceived in terms of negative economic cost and/or a constraint upon private property rights, the Coast Salish people express a strong attachment to these sites, viewing them as part of their cultural identity.[39]  As stated previously, this is due to the fact that these places, which range in scale from specific locales as small as a boulder or bathing pool, and as large as a mountainside or territory, are deeply imbued with meaning, and are sites of personal and community identity.[40]  Cowichan Elder, Arvid Charlie explained it to me in the following way: “I keep getting asked about our sacred areas.  But to me, that’s like asking what part of a church is important or which part of a story is important.  Our whole territory is important to us.”[41]

Given the history of colonization and the lack of recognition given to Indigenous territories, it is not surprising that there is hesitancy amongst the Coast Salish people to make their sacred sites known to the public.  The decision not to document these sacred places and belongings is also in keeping with Coast Salish legal traditions.[42]  However, many Coast Salish elders recognize that their concerns for privacy can become problematic if the general public deems them to be unimportant because these customary laws are not contained in a written record.[43]  As explained by Arvid:

There’s nothing really written down about our sacred things, our sacred ways, sacred areas.  We’ve been brought to question that.  Well, other people have said, “Well, you guys must have not very many important sites that’s why it’s not recorded.”  You know, when we’re trying to look at some … or something about sacred sites.  The answer from our home area is: those things that are really sacred, no one is allowed access to.  We didn’t share it.  We don’t share it with just anybody.  It was good for that day – we kept our heritage, our culture – but today that almost works against us.[44]

Perhaps recognizing this, and motivated by the increased developmental pressures within their territories, as well as the need to gather evidence to support current treaty negotiations and/or title cases, many Coast Salish communities have created, or are in the processes of developing land use plans, which amongst other things, document sacred places within their territories.[45]

Through these documents, and the oral traditions that support them, we learn that Coast Salish laws, as applied to these sacred sites, are based on two legal principles: respect and reciprocity.   Each will be examined in greater detail below.

Principle of Respect

One central principle that underlies all decisions and discussion in the Coast Salish world about sacred sites is that ancestors and their ancestral places must be respected.

Have I received any teachings from my parents or elders?  Yes.  I’ve always been told to be, to be careful and be mindful [of] our, of our ancestors.  You always pay respect .  It’s like when you visit, visit a gravesite, you have to carry yourself in a certain way.  You always have to have a prayer in your heart and tsiit sul’hween [thank the ancestors] I guess.  Thank them, and in a very respectful way.[46]

Again, this principle of respect is related to the understanding that these places are sacred because they embody social values, and even laws, that connect individuals to their ancestors.[47]  In some instances, these places are sacred because they embody Coast Salish ancestors.  A traditional Tsleil-Waututh narrative told by Gabriel George describes how the Coast Salish mythical character Xe:l s transformed the beloved daughters of a great Tseil-Waututh chief into the twin peaks known as “the lions.”[48]  Accordingly, the Tseil-Waututh people believe that the presence of transformed ancestors in the territory means that they are not just “of” their territory; but rather that they are the places and beings of the territory.[49]

Furthermore, because the Coast Salish people believe that their ancestors continue to maintain ownership of their cultural property, it is viewed as disrespectful to touch or interfere with any artifacts that are within those sacred places.  Hul’qumi’num Elder Florence James described it as follows:

Ancient objects, when we’re finding them, in a way, we cherish it.  The people cherish it because it belonged to our ancestors, ancient objects.  We don’t touch it when it’s from a graveyard.  We don’t touch it when it’s in the casket or the little homes [above-ground grave houses] that I remember.  We don’t touch that.  That belongs to them.  And we’re forbidden to touch it.  But when we find – like, lately, the odd time, people find it.  And we cherish it as long as it’s not in the graveyard.[50]

Failure to abide by this legal principle of respect towards the ancestors has serious consequences for the Coast Salish people.  For example, the Tsleil-Waututh people believe that each person is born with a gift that enables them to contribute to a healthy family, community and nation.[51]  However, these gifts are at risk of being lost if individuals fail to maintain healthy relationships with the ancestors.[52]  It is believed that negative personal, societal and cultural impacts will flow from this loss.  Stz’uminus Elder, Mabel Mitchell described it as follows:

We were taught not to take anything from a grave.  Even now, you don’t do that.  You respect the deceased because if you take something from there, something bad will happen to you.  And bringing something home from, from a dead person, they’ll always follow what they own and they’ll want it back.  And, and that’s when you’ll get haunted.  And you won’t have no rest.  You’ll be bothered all the time until you return that.[53]

The primary manner in which individuals are impacted by failing to abide by the legal principle of respect is through soul loss.  In her Ph.D. dissertation, Barbara Lane described soul loss in the following way:

Soul-loss is one of the most frequent causes of illness and may be due to accidental loss or theft.  Accidental loss can be caused by a sudden fright or a physical jar such as falling or tipping over in a canoe.  The soul may be attracted accidently by a supernatural being out in the open or by a dancer with a powerful spirit power inside the “big house.”  In either case theft is unintentional.  A powerful force simply attracts a weak soul.  In the case of a dancer whose power draws a soul, both the dancer who has acquired a foreign soul and the owner who has lost it fall sick.  Souls are intentionally stolen by shamans and ghosts and they may be drawn away from their owners magically by ritualists … All cases of soul-loss, accidental or intentional, can be cured by shamans.  Cases in which the loss was due to theft by ghosts, might also be cured by persons with ghost power who were not shamans.[54]

As one can see, within the Coast Salish legal tradition, sanctions emanate from the spiritual world, as well as decisions-makers, and as we will see in Act Four, even the natural world.  This fact influences both to whom/what the Coast Salish people owe legal obligations and what those legal obligations entail, in a way which, one can imagine, would be quite different from the legal obligations in the minds of the proponents of extractive industries.

 Principle of Reciprocity

Closely related to the legal principle of respect is the legal principle of reciprocity.  Along with the recognition that the Coast Salish people are continuously connected to their ancestors through their territories, is also the acknowledgement that they owe certain obligations to these ancestors in order to maintain good relations with them.  Accordingly, the Coast Salish people maintain strong customary laws concerning the dead, and these laws profoundly influence what activities are deemed to be permissible at these sacred sites.

Coast Salish elders teach that we are legally bound to care for the deceased.[55]  This entails a number of familial responsibilities, such as ensuring that the deceased is afforded a proper funeral, their burial site and physical remains are respected, and the needs of their sprits are tended to through the appropriate mortuary rituals.[56]  Coast Salish ancestors also depend upon living kin to fulfill their needs, such as bringing them food, their belongings and providing them with respect.[57]  Similar to the discussion above, negative personal, societal and cultural impacts can occur if these customary laws are practiced.  Accordingly, other families and the deceased themselves denounced families who neglected their ancestors because it is deemed to be dangerous, not only for the family members of the deceased but also for the entire community.[58]

However, the responsibility to care for and respect the deceased is not entirely based upon the fear of harm against the living.  It is also understood to be advantageous to foster relations with the deceased because such relations could potentially result in one gaining the deceased’s supernatural protection, knowledge and advice.[59]  Wes Modeste described his understanding of this teaching as follows:

One story that intrigued me is that there used to be stories of giants.  I suppose they were something like Goliath.

One day, a man came across a very large bow when he was hunting.  He was looking at it.  He could see that it wasn’t a natural branch that had fallen in the forest.  After he had satisfied his curiosity, he continued on.

It wasn’t long after that he came across human remains – but they were from a very large person.  “This man must have been accidently killed,” he thought to himself.  So he went walking around the mountain, looking for a resting place for the bones.  He came across a crack in the rock.  So he gathered up some moss and laid it down and then picked up all the bones and stared placing them in this shelter by the rocks.

After he had gathered up all the remains that he could find, he remember the bow.  “That must have belonged to this man,” he said to himself.  So he went back until he found it.  He covered it over with moss and placed it with the remains.  Then he covered all of it over with moss.

That night, that man came to him in his dreams and expressed gratitude for his gesture of kindness and for taking care of his remains.  He especially thanked him for returning his bow, because he had been missing it.

The giant bestowed a gift on the man.  I don’t remember the gift; maybe it was to be lucky in hunting or something similar.  So the gesture was not without reward.

That’s a teaching.  To save respect for something like that and to go out of your way to respectfully remove the remains to a place they know more.  That is more in keeping with how bodies should be kept.[60]

Therefore, Coast Salish people’s responsibility to their ancestors establishes a reciprocal relationship between the living and the dead that continues over many generations.  As one can imagine, this relationship with Coast Salish ancestors greatly affects the customary laws associated with sacred sites.  The laws of non-disturbance and avoidance would seem, on their face, to conflict directly with any Canadian laws that would permit either the development or the alteration of such sites.[61]

Act Four:       Indigenous Legal Traditions & Stewardship

Marissa:                      My people have been fishing here for thousands and thousands of years.

Tyler Wilkins[62]:         That’s … really cool.

Marissa:                      Everything has gotten so messed up in such a short amount of time.

Tyler:                          Since colonization?

Marissa:                      Yep.  This body of water is like a massive spirit, and she’s been wounded so badly.  She’s just now beginning to return to health and then this thing comes –

Tyler:                          My dad tells me there’s no real contamination with LNG –

Marissa:                      There’s always contamination.  The water will change.  The earth feeding the plant will suffer.

Tyler:                          OK.

Marissa:                      There was an agreement we had with this water, this spirit – Kwotkwa – like the way you might prune a tree, we’d pull out the excess for our survival, our needs, and would help keep Kwotkwa strong.  Whatever it was, salmon, shellfish, abalone, kelp, all that stuff, our need to survive was in a balance with her.  And same with this land, the forests, the animals.  It was a balance that we all lived in harmony with for thousands of years.

.      .      .      .

 Recent conflicts between Indigenous and non-Indigenous peoples concerning extractive industry development have also brought to light their differing worldviews about the natural world.  Although landscape is a part of every individual’s sense of being, one cannot deny the special relationship that Indigenous peoples maintain with the places they have inhabited since the beginning of creation.  Indigenous author, theologian and historian Vine Deloria Jr. confirmed the special relationship between Indigenous peoples and their territorial spaces when he stated that Indigenous people often give greater prominence to the place and environment that we occupy than we do to time in the western sense of the word.[63]  So our continuing connection to the land and fulfilling our role within that ongoing relationship is centered on our specific environment and the relationships it maintains, rather than on events that may be seen as historically important to others but have only a tenuous connection to our land.

Cowichan elder, Arvid Charlie stated:

I grew up receiving teachings from the Elders of my indigenous community and have spent my life learning knowledge of plants, animals and other traditional teachings as I was growing up.  I continue to learn today.  I have been taught Mukw’stem ‘I ‘utuna tumulw ‘o’ hulitun tst that is “everything on the earth is what sustains us.”[64]

Related to the acknowledgement that everything on the earth is necessary for our survival, spiritually, culturally and physically, is the recognition that everything has value.

The value of being thankful for the Creator, being thankful for the world.  That’s how I was taught, right from an early age.  I was taught that everything in the world was important.  Everything’s got life.  Everything’s got it’s own spirituality.  Everything, including everyone, has a purpose.[65]

Several Coast Salish legal principles flow from this acknowledgement of their special and vital relationship to the lands and resources in their territories.  Tillie Gutierrez, a Stó:lō elder shared the following during an interview in the early 1980s with Albert (Sonny) McHalsie:

She said that when she was a little girl she remembered being up in Yale.  She said every time they got together before they started their meeting, they all started off with one statement, and that was “S’ólh Téméxw te ikw’elo.  Xolhmet te mekw’stam it kwelat.”  And that basically means, “This is our land and we have to take care of everything that belongs to us.”

And to me now when I look at that statement, that statement S’ólh Téméxw te ikw’elo – “this is our land” – that’s our statement of our Aboriginal right and title, the statement of our ownership.  But then the second part, Xolhmet te mekw’stam it kwelat – “We have to take care of everything that belongs to us” – that’s our obligation, to take care of what’s out there.[66]

The Tsleil-Waututh Nation described their roles in maintaining their relationship to the land in the following way:

The Tsleil-Waututh Nation has a sacred, legal obligation to protect, defend, and steward the water, land, air, and resources of our territory.  Our stewardship obligation includes the responsibility to maintain and restore conditions that provide the environment, cultural, spiritual and economic foundation for our nation and community to thrive.[67]

Although this list is not exhaustive, principles of respect and reciprocity also shape many of the Coast Salish stewardship laws.  Each will be examined below.

Principle of Respect

As described above, the Coast Salish legal tradition acknowledges the importance of all beings, animate and inanimate, located within the Coast Salish world.  Along with that acknowledgement, also comes the principle of respect – the recognition that one has a responsibility to act in a respectful manner towards the earth and all its inhabitants.

Wes Modeste illustrated this principle to me with the following story:

In the early fall there was a great downfall of rain.  The creeks that had been dry all summer began to fill up with water from the heavy rain and the chum salmon began to come up the river.  There was chum salmon in the creek and me and my nephew were running after the fish and kicking them out of the river.

When we got home we were all soaking wet and my father asked what we were doing.  I told him that there was a lot of fish in the creek and that we were kicking them out of the water.

I got the scolding of my life – by that very act of disrespecting the salmon.  He said to me, “They have a right to live just like you do.  You have the right to take the life of another animal for your food and you do that respectfully.”

So never again did I abuse live animals after that.  It was a concept that stayed with me, even though I was only 14 years old at the time I received it.[68]

The First Salmon Ceremony, is a customary law adhered to by many Coast Salish nations which acknowledges the special relationship between the people and the salmon.  As the following account details, it is an outward display of respect to the salmon and an acknowledgment of their importance to the cultural of the Coast Salish people.

It’s such a sacred thing that we’re not allowed to touch it with our hands, the fishers that catch the first salmon are not allowed to touch it with their hands.  They used to use their forearms and there were supposed to be certain elders that were supposed to prepare it.  They were supposed to have knowledge of prayers, to say prayers to the salmon people, thanking them for the salmon, paying respect for it.  The major part of the ceremony was actually sharing; even if you just had one little morsel of the salmon, the important part was making sure that a lot of people shared in that salmon.  Then the bones would be saved and returned to the river, and that would involve one of the chiefs, a spiritual person, an elder, and a youth: those four people needed to be involved when that was happening.  A prayer was said to the salmon and to the river, and then the bones would be returned to the river.[69]

As these two narratives demonstrate, although it is acknowledged that the Coast Salish people have the right to take and use the resources for their sustenance, this must be done in a respectful manner.  They are never to take more than is needed.  Furthermore, they are to give thanks and outwardly acknowledge the importance of these resources.  Failure to do so could result in a loss of physical sustenance or loss of access to the resources themselves.  As described by the Tsleil-Waututh Nation:

This consequence of failing to respect the principle of [being highly responsible] is exemplified by the story of Waut-Salk in which some young boys act disrespectfully toward the salmon by throwing rocks at them.  The consequences of this disrespect is that all the salmon leave the area, endangering Tsleil-Waututh survival by causing our ancestors to lose a critical food resource.

Failure to respect the direction of Tsleil-Waututh individuals who have stewardship obligations toward a particular resource or resource-management location … could damage or destroy the resource over time and may in turn affect their social status or “good name.”[70]

Accordingly, if extractive development is to be permitted within the Coast Salish world, it must be undertaken in a manner that respects the vital connection between the Coast Salish people and the natural world.  This includes not just the flora and fauna of the territory, but also the water, soil, rocks and other inanimate objects.  To do otherwise would be violating Coast Salish laws.

Principle of Reciprocity

Recognizing the interdependent relationship between the Coast Salish people and the land that sustains them, their legal traditions also recognize the principle of reciprocity.

As demonstrated by the account of the First Salmon Ceremony, there is an acknowledgment in Coast Salish law that our people have a responsibility to steward the natural resources, and their habitats, in order to maintain access to important food sources, cultural materials and cultural training.  As stated by Cowichan member Tim Kulchyski:

Customary law around hunting differs from family to family.  Within each family, there is specific knowledge with respect to different species.  Elders have taught me that if you are hunting elk, you wouldn’t take the lead bull, in order to preserve the integrity of the herd.  If you took the lead bull, it may cause the herd to move to a different area or change their practices.  We also don’t go for an older animal when we could go for a younger animal.[71]

These customary practices related to hunting exist because the Coast Salish people acknowledge that the reciprocal relationship between themselves and the animals.  In order for the wildlife to sustain them, they also need to sustain the wildlife.

This principle of reciprocity also influences the Coast Salish peoples’ relationship with the plants and trees within their territories.  For example, cedar is an important cultural resource for the Coast Salish people.  It is used to build canoes, clothing, utensils, and baskets, amongst other things.  Furthermore, the cedar boughs themselves are used for spiritual cleansing and it is believed that burning cedar can be used to chase away bad spirits.[72]  Accordingly, there are also customary laws involving the harvesting of cedar.

We’re told that when we go out to use any part of the cedar – and there’s certain teachings there as well, as to when you go out and gather the bark, you’re allowed to peel bark on only one side of the tree so that the tree continues to live.  When you go and you gather the cedar roots, there are four different main roots that come out.  There’s only one root that we take, and then we leave the other three alone.  If you take the other ones you’re going to kill the cedar tree.  There’s all those different teachings that are tied into that as well.[73]

Coast Salish peoples’ relationships with inanimate objects are also governed by this legal principle.  For example, Tsleil-Waututh law requires that the territory be maintained and restored so as to ensure the presence of cold, clear water, located in private, undeveloped places, for ritual bathing.[74]  The significance of these elements is often times addressed in traditional narratives that recount the years of discipline and preparation that individuals undergo “go get something to help our people, to be something for our people, whatever their gift may be.”[75]

One Cowichan member described the effects of development on this spiritual practice as follows:


Mt. Tzouhalem and Mt. Prevost, those areas were important not only for bathing but also for access for other spiritual purposes.  But they’ve been so heavily impacted by use that if you ask the elders they will say that you’re not going to get guidance or help in those areas anymore because it’s been so heavily impacted.  The only way I can equate it to people who don’t understand is that we seek out special areas because they help set our mindset and help prepare us to receive something.  The only thing akin to it in western culture would be sitting in church on Sunday and listening to a minister preach, in front of a beautiful stain glass window, with everybody there to pray, and everybody in their Sunday best and all of a sudden somebody comes and power saws the front door down, attacks the pews and dismantles the building around them.[76]

If these places are not kept clean and undeveloped, than the spiritual gifts are not available to the community members.  Therefore, there is a legal responsibility placed upon the Coast Salish people to protect and maintain these waters and pristine areas.  The social and cultural impacts, both individually and collectively, are considered very serious if this responsibility is not upheld.  Accordingly, it is not difficult to see why many Coast Salish communities are incapable of supporting extractive development when these types of reciprocal relationships are not considered in decision-making processes.

Act Five:        Conclusion

 Ariel:               You brave brave family.  Yoday we come from all nations First Nations, Euro-nations, African nations, so many nations now, in our Shmextiyox family.  And that makes me so proud, and so humble to be able to be a part of this battle, to reclaim a land, that while it wasn’t stolen, it was swindled, like so many other bad deals, that’ve broken us apart through generations and generations.  And now, I look out at you and I see a world of our ancestors standing together with us, in our eyes, in our hearts, on this land, I see us all, as one, now.  We fought the found the good fight and we keep on fighting it!

Some applause and cheers.

.      .      .      .

As this paper has illustrated, oftentimes the practices involved in extractive industry development are in conflict with the Coast Salish laws and legal principles relating to respect and reciprocity.  In essence, complying with these types of proposals would in essence be unlawful.  Therefore, when Indigenous groups gather together in protest and demonstration, they are not doing so merely for publicity, they are doing so because their laws not only empower them to do so, but require them to take active steps to protect their territories and everything on it.

The issue is that currently these legal traditions, and the laws that flow from them, do not garner any respect or recognition before Canadian courts and administrative decision-making bodies.  When mentioned, they appear only in the facts section of decisions, and never as part of the reasoning.[77]  If true reconciliation is to occur, this must change.  As you have read, these are well-established laws that have proven their utility for the Indigenous people within the Coast Salish world; however, that does not exclude the notion that these laws have value for non-Indigenous people as well.  Laws that emanate from principles of respect and reciprocity are of great value to our decision-making about the environment and the development of extractive industries.

In thinking about reconciliation and what our laws have to offer the rest of Canadian society, I often reflect on the words of my elder George Harris when he said to me:

A person once asked me, “Why don’t you Indian people want to be the same as us?  We live in such a beautiful land and in the most progressive society with big beautiful buildings.”  I bit my tongue for a while, because she was an older lady.  Then I stoop up and said, “Thank you for your feelings.  It’s proper for me to acknowledge you as an elder from your community.  I stand before you now in my jacket and running shoes, but I feel most comfortable in my elements, with my people, practicing our sacred ceremonial rights.  Those are the things I want to preserve because they enhance my life and the lives of my children and grandchildren.  Thank you for thinking what you have is better.  I’m not saying that what we have is better.  All I’m asking is that you give us a little bit of respect to carry on the traditional ways we inherited from our ancestors to allow me to practice my sacred ceremonial traditions as an Indigenous person from our land.”[78]

Our Indigenous leaders are dealing with complicated considerations when it comes to the topic of extractive development.  These issues may, at times, seem to be at odds with one another.  However, if the ultimate goal is to ensure the cultural survival of our nations, than surely the answers must come from within our own legal traditions.

[1] My traditional name is Su-taxwiye.  J.D., LL.M., Ph.D., Assistant Professor, Faculty of Common Law at the University of Ottawa, of Cowichan Tribes, Coast Salish Nation.  Thank you to my Elder, Ernie Elliott, for taking the time to sit with me and teach me.  Thank you to Chief Ian Campbell, for helping me to increase my understanding on this important topic.  Thank you to Justin Neal, for inspiring me with your creativity and pushing me to think critically about this important issue.

[2] This paper is part of the TESTIFY project.  Testify was birthed in the aftermath of Court decisions where a gap emerged between Indigenous laws, which are recognized by the Courts, and failure to implement those laws.  The Court made clear that Indigenous laws and legal orders pre-existed and survived the assertion of Crown sovereignty; these laws have not been extinguished, and find expression in the constitution.  But there remains confusion about what Indigenous laws are – and how these laws hold the promise for a better future.  Testify turns to the artists, to open our eyes to the necessity and beauty of Indigenous laws.  Accordingly, this paper was inspired by the work of Coast Salish playwright, Justin B. Neal.  The dialogue that follows is extracted from “LNG: A Limited Series for Canadian Television Pilot Episode”.

[3] Chief of the Shemstiyox Nation (fictitious Coast Salish Nation) [“Sam”].

[4] FoxFibre Program Manager [“Cameron”].

[5] John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010).

[6] Ibid at 8.

[7] Cite to land use plans that have been created in First Nations communities across Canada.

[8] Hul’qumi’num Treaty Group v Canada (2009), Inter-Am Comm HR, No 105/92, Annual Report of the Inter-American Commission on Human Rights: 2009, OEA/Ser.L/V/II (Affidavit of George Harris).

[9] Snuw’uyulh is a word used by the Cowichan people of southern Vancouver Island.  The Squamish refer to teachings as snewayelh and laws as chiyaw.  The Sto:lo Nation uses the word sxwóxwiyám to describe their laws.

[10] See also Tsleil-Waututh Nation, Treaty, Lands & Resources Department, Assessment of the Trans Mountain Pipeline and Tanker Expansion Proposal, online: Sacred Trust Initiative <> [Tsleil-Waututh Nation].

[11] Hul’qumi’num Mustimuhw refers to the five First Nations which comprise the Hul’qumi’num Treaty Group: Cowichan Tribes, Halalt First Nation, Lyackson First Nation, Penelakut Tribe and Lake Cowichan First Nation.

[12] Sarah Morales, Snuw’uyulh: Fostering an Understanding of the Hul’qumi’num Legal Tradition (PhD Dissertation, University of Victoria, 2014) [unpublished].

[13] Sarah Morales, “st’ul nup: where we are” WYJL [forthcoming in 2016].

[14] Tsleil-Waututh Nation, supra note 10 at 53.

[15] Ibid.

[16] Chief Sam Baker’s niece and Ronnie Duncan’s daughter.  17 year olds and member of the Ravens, a group composed of members of the Shmestiyox First Nation who are opposed to the FoxFibre LNG Plant.

[17]  Chief Sam Baker’s cousin.  Father of Marissa and James.

[18] Chief Sam Baker’s nephew and Ronnie Duncan’s son.

[19] A critique of the environmental assessment process and government approval processes of these types of developments, in the face of ongoing comprehensive claims negotiations and title claims in B.C. is beyond the scope of this paper.

[20] David Kahane, “What Is Culture?” in Catherine Bell & David Kahane, eds, Intercultural Dispute Resolution in Aboriginal Contexts (Aboriginal: UBC Press, 2004) 28 at 50.

[21] Interview of Ernie Elliott (27 July 2016).

[22] Interview of Chief Ian Campbell (12 September 2016).

[23] Interview of Ernie Elliott (27 July 2016).

[24] Ibid.

[25] Ibid.

[26] Interview of Chief Ian Campbell (12 September 2016).

[27] Ibid.

[28] Morales, Snuw’uyulh supra note 12 at 304.

[29] Interview of Willie Seymour (23 June 2010) in Ibid.

[30] Morales, Snuw’uyulh supra note 12 at 304.

[31] Ibid at 304.

[32] Miller, The Problem of Justice: Tradition and Law in the Coast Salish World (Lincoln, University of Nebraska Press, 2001) at 116.

[33] Interview of Florence James (16 July 2010).

[34] Ibid.

[35] Miriam Jorgensen, ed., Rebuilding Native Nations: Strategies for Governance and Development (Tucson: University of Arizona Press, 2007) at 73.

[36] Ibid.

[37] CBC Journalist and national news anchor.

[38] Leader of the Ravens, a group composed of members of the Shmestiyox First Nation who are opposed to the FoxFibre LNG Plant.


[39] Eric McLay et al., “’A’lhut tut et Sul’hweentst [Respecting the Ancestors] : Understanding Hul’qumi’num Heritage Laws and Concerns for the Protection of Archaeological Heritage” in Catherine Bell & Val Napoleon, eds, First Nations Cultural Heritage and Law: Case Studies, Voices, and Perspectives (Vancouver: UBC Press, 2008) at 174-75.

[40] Brian Thom, Coast Salish Sense of Place: Dwelling, Meaning, Power, Property and Territory in the Coast Salish World (PhD Thesis, McGill University Department of Anthropology, 2005) [unpublished] at 1.

[41] Hul’qumi’num Treaty Group v Canada (2009), Inter-Am Comm HR, No 105/92, Annual Report of the Inter-American Commission on Human Rights: 2009, OEA/Ser.L/V/II (Affidavit of Arvid Charlie).  However, it is important to note that Elders and community members have identified specific “sacred” sites within the traditional territory.  As demonstrated by the Hul’qumi’num Treaty Group’s land use plan, some areas require greater protection than others.

[42] McLay et al., supra note 21 at 151.

[43] Ibid.

[44] Hul’qumi’num Heritage Law Focus Group.  Facilitated by Eric McLay (7 July 2003) Ladysmith, British Columbia.  Participants included elders Arvid Charlie, Irene Harris, Bernard Joe, and Ruby Peters, and researchers Kelly Bannister, Lea Joe, Eric McLay, and Brian Thom in McLay, et al., supra note 21 at 151.

[45] See generally Squamish, “Land Use Plan”, Xay Temix (Sacred Land) Land Use Plan, online: <>; Hul’qumi’num Treaty Group, “Shxunutun’s Tu Suleluxwtst: In the Footsteps of our Ancestors”, online: <>, Tseil-Waututh, “Tsleil-Waututh Nation Community Land Use Planning”, online: <>.

[46] Interview of Charles Seymour by Lea Joe (4 May 2003) in McLay et al., supra note 21 at 158.

[47] McLay et al., supra note 21 at 158.

[48] Tsleil-Waututh Nation, supra note 10 at 53.

[49] Ibid.

[50] Interview of Florence James by Kelly Bannister and Lea Joe (28 April 2003), Kuper Island, British Columbia in McLay et al., supra note 21 at 158-9.

[51] Tseil-Waututh Nation, supra note 10 at 55.

[52] Ibid.

[53] Interview of Mabel Mitchell by Lea Joe (13 May 2003), Ladysmith, British Columbia in McLay et al., supra note 21 at 159.

[54] Barbara Lane, A Comparative and Analytical Study of Some Aspects of Northwest Coast Religion  (PhD Thesis, University of Washington, 1953) at 19-20.

[55] See McLay et al., supra note 21; Tsleil-Waututh Nation, supra note 10.

[56] Ibid at 160.

[57] Ibid.

[58] Ibid at 161.

[59] Tseil-Waututh Nation, supra note 10 at 55.

[60] Interview of Wes Modeste (23 June 2010) in Morales, Snuw’uyulh supra note 12 at 226.

[61] For a more detailed discussion of the laws of non-disturbance and avoidance see McLay et al., supra note 21 at 165-173.

[62] Son of Cameron Wilkins.

[63] Vine Deloria Jr, God Is Red: A Native View of Religion (New York: Grosset and Dunlap, 1973).

[64] Hul’qumi’num Treaty Group v Canada (2009), Inter-Am Comm HR, No 105/92, Annual Report of the Inter-American Commission on Human Rights: 2009, OEA/Ser.L/V/II (Affidavit of Arvid Charlie).

[65] Interview of Arvid Charlie (8 November 2009).

[66] Albert (Sonny) McHalsie, “We Have to Take Care of Everything That Belongs to Us” in Bruce Miller, ed, Be of Good Mind: Essays on the Coast Salish (Vancouver: UBC Press, 2007) at 85.

[67] Tseil-Waututh Nation, supra note 10 at 3.

[68] Interview of Wes Modeste (23 June 2010) in Morales, Snuw’uyulh supra note 12 at 227.

[69] McHalsie, supra note 48 at 91.

[70] Tseil-Waututh Nation, supra note 10 at 55.

[71] Hul’qumi’num Treaty Group v Canada (2009), Inter-Am Comm HR, No 105/92, Annual Report of the Inter-American Commission on Human Rights: 2009, OEA/Ser.L/V/II (Affidavit of Tim Kulchyski).

[72] McHalsie, supra note 48 at 104.

[73] Ibid at 104-5.

[74] Tseil-Waututh Nation, supra note 10 at 54.

[75] Oral traditional evidence given by Gabriel George on October 16, 2014, during the National Energy Board’s hearing for the TMEX proposal, held in Chilliwack, British Columbia in Ibid.

[76] Hul’qumi’num Treaty Group v Canada (2009), Inter-Am Comm HR, No 105/92, Annual Report of the Inter-American Commission on Human Rights: 2009, OEA/Ser.L/V/II (Affidavit of Tim Kulchyski).

[77] Discussion with Jeffrey Hewitt (19 September 2016).

[78] Hul’qumi’num Treaty Group v Canada (2009), Inter-Am Comm HR, No 105/92, Annual Report of the Inter-American Commission on Human Rights: 2009, OEA/Ser.L/V/II (Affidavit of George Harris).