WSANEC legal theory and the fuel spill at Selektel (Goldstream River).

• Author: Clifford, Robert Yelkatte
• Position: Canada - Moving from the Why to the How of Indigenous Law

Selektel (Goldstream River), on Coast Salish territory on Southern Vancouver Island in British Columbia, is an important salmon spawning river and fishing location for the WSANEC (Saanich) people. On April 16, 2011, it was also the site of a diesel and gasoline spill.

In this article, I explore the processes of revitalizing WSANEC law and how we might think about the revitalization of WSANEC law in the context of this fuel spill. While I do not present a definitive statement of the application of WSANEC law, I explore what is needed in order to understand WSANEC law on its own terms. I turn to WSANEC stories to ground my understanding of WSANEC law in a different cosmological and ontological framework, and begin to explore the implications this different framework has for understanding the fuel spill and a WSANEC approach to "law". I argue that this framework requires a greater attribution of "being" and "agency" to land, with an emphasis on repairing and maintaining relationships in an encompassing way. In exploring the implications of this shift in framework, I problematize the notions of "jurisdiction" and "remedy". Specifically, rather than approaching the relationship to land through the idea of jurisdictional authority over it, I argue that WSANEC law develops a perspective centred on our mutual responsibilities with and to land. I also argue that the notion of jurisdiction can compartmentalize and limit WSANEC law's attention to the encompassing nature of our relationships to land. Similarly, as opposed to engaging WSANEC law only to find a remedy, we must step back and consider how the harm of the fuel spill would be characterized within the distinctive framework of WSANEC law.

Selektel (riviere Goldstream), qui se situe sur le territoire des Salishes de la cote au sud de l'ile de Vancouver en Colombie-Britannique, est une riviere hotesse de la fraie de saumon ainsi qu'un lieu de peche pour le peuple WSANEC (Saanich). Le 16 avril 2011, elle etait egalement le lieu d'un deversement d'essence et de diesel.

Dans cet article, j'explore le processus de revitalisation du droit WSANEC ainsi que la facon dont nous pouvons songer a la revitalisation du droit WSANEC dans le contexte de ce deversement. Bien que je ne presente pas une proposition definitive de l'application du droit WSANEC, j'explore ce qui est requis afin de comprendre le droit WSANEC selon ses propres termes. Je me tourne vers des recits WSANEC afin de fonder ma comprehension du droit WSANEC dans un cadre cosmologique et ontologique different et j'entame une exploration des implications que ce different cadre a sur la comprehension du deversement et sur une approche WSANEC du >. J argumente que ce cadre requiert une plus grande attribution aux concepts d'> (being) et de > (agency) en lien avec la terre, en mettant l'accent sur la reparation et le maintien des relations d'une maniere globale. En explorant les implications du changement de cadre, je problematise les notions de > et de >. Precisement, plutot que d'aborder la relation a la terre par l'entremise de la competence a son egard, j'argumente que le droit WSANEC offre une perspective centree sur nos responsabilites mutuelles avec et envers la terre. J'argumente egalement que le concept de competence peut compartimenter et limiter l'attention qu'accorde le droit WSANEC a la nature globale de nos relations a la terre. De meme, plutot que d'engager avec le droit WSANEC seulement afin de trouver une reparation, nous devons prendre du recul et examiner comment le tort cause par le deversement d'essence serait caracterise dans le cadre distinctif du droit WSANEC.

Introduction: NES CSE LA, ES (Myself, Where I Come From) I. SKALS (Beliefs and Laws): Theorizing WSANEC Law A. On Its Own Terms: Culture, Power, and Resurgence B. WSANEC Legal Theory and Method (Roots and Branches) II. S, OXHELI (Sacred Teachings of Life): Telling a Different Story A. Being, Again; and Relationalit) B. SELEKTEL (Coldstream) III. EQATEL TTE MEQ (Our Relationships to All): Re-Framing the SELEKTEL Spill A. Narrative Primer: A Constraint on Imagination B. Distracted by Jurisdiction C. Beyond Remedy D. Resurging Our Relationships Conclusion: WSANEC Laws Emerging Once Again Introduction: NES CSE LA, ES (Myself, Where I Come From) (1)

On April 16, 2011, a Columbia Fuels truck crashed on the Malahat Highway, near Victoria, British Columbia, spilling 42,000 litres of gasoline and 600 litres of diesel. The contents of the spill flowed through a culvert and into SELEKTEL (also known as Goldstream River) and through the river "into the estuary and Saanich Inlet." (2) While the Langford Fire Department and Columbia Fuels' Emergency Responder took immediate remedial action, the spill clearly damaged the ecosystem, and cleanup and monitoring activities continue to date. (3)

Hearing that a fuel spill had occurred at this location was troubling to me both personally and as a WSANEC person. The WSANEC rely heavily on marine resources, which are integral to the WSANEC way of life. Salmon are of particular importance to the WSANEC culture. During CENQOLEW (the moon during which the dog salmon return to the Earth) the WSANEC people fish QOLEW (the dog or chum salmon). (4) This fishing is done at SELEKTEL and the salmon harvested there are dried or smoked and then stored away. SELEKTEL is thus an important location for the WSANEC people.

As a young boy, I grew up fishing on the ocean and in the river. I can still recall the first time I went to SELEKTEL to watch my uncle and older cousin gaff salmon (one of our traditional fishing techniques). (5) While too young to fish myself, it is a moment I will never forget. Not many years later, that same uncle taught my younger cousin and me how to gaff salmon. Equipped with that teaching, my cousin and I have gone almost every year in the fall, during CENQOLEW, to gaff and smoke salmon to store for the remainder of the year. When my cousin and I would return to Tsawout (my community) with the salmon, my grandma, grandpa, great-grandma, uncles, aunts, and the rest of the family would gather outside to clean the fish and hang them in the smoker. These same fish are distributed among the extended family and later find their spot on the table at all our large gatherings. In short, SELEKTEL will always be tied to my family and to my identity as a WSANEC person.

The driver of the Columbia Fuels truck that crashed was intoxicated and has since been charged and pleaded guilty to two counts--one under the Criminal Code (6) and the other under the Fisheries Act. (7) On the criminal count, the driver pleaded guilty to the dangerous operation of a motor vehicle (8) and received a conditional sentence of three months, plus nine months probation. He also pleaded guilty to a charge under the Fisheries Act for depositing gasoline and diesel into "water frequented by fish" (9) for which he received 200 hours of community service in the area of conservation of fish and fish management. Given these guilty pleas, the Crown dropped the impaired driving charges. (10)

In response to the situation, primary stakeholders affected by the spill formed a roundtable working group consisting of Columbia Fuels, First Nations representatives, the BC Ministry of Environment, the Department of Fisheries and Oceans, Goldstream Hatchery, and third party environmental consultants. While I was not formally involved in this process, I was able to attend one of these meetings as an observer. Discussion at this meeting circled around the determination of fish numbers, conducting scientific inquiries into impact and remediation efforts, and determining financial allocation to remediation efforts. (11) The point of this article is not, however, to analyze the roundtable process. Rather, attending this meeting led me to wonder how we might conceive of and act upon the problems posed by the spill on WSANEC law's own terms. (12) What expectations regarding "law" itself would this approach require us to revisit and unpack? One such expectation is that we are easily able to jump to the identification of concrete remedies that can then be put into conversation with those of Canadian law. I will argue that there is much more to consider.

This article does not present a neatly packaged answer for how WSANEC law would apply to the fuel spill at SELEKTEL. There are several reasons for this choice. First, a WSANEC legal response to the fuel spill has not occurred at the community level. Consequently, I am not in a position to research and analyze the processes followed, the decisions made, and the solutions implemented by the community. WSANEC law has been suppressed for far too long by the operation of colonialism (which is not to say it has been extinguished). We must, therefore, work to build and revitalize the practices and conceptual structures that allow for the healthy functioning of the legal tradition. More importantly, and beyond that, the nature and authority structure of WSANEC law also differs from Canadian law. The WSANEC tradition is decentralized and its driving impetus is to repair and maintain relationships in an encompassing way. Since relationships between people and the ecosystem are dynamic and fluid, there is less emphasis on fixed and highly specific rules from the outset. (13) Additionally, in working to repair relationships in WSANEC law, both between humans and with the land and animals, many people (including Elders, knowledge holders, chiefs, and community members) have a say. Although it is one of the objectives of my current scholarly work, at this point I am not in a position to reflect what this multiplicity of authoritative voices have to say about the SELEKTEL spill or to present an analysis of this collective reasoning and problem-solving process. However, my role as a community member and aspiring scholar within our legal order--and an objective of this article--is to help illuminate the larger...