Legal Entanglements in Place: Hul'q'umi'num' law, provincial jurisdiction and the protection of Hw'teshutsun, a Hul'q'umi'num' cultural landscape

In 2001, Cowichan Tribes successfully negotiated the protection of an important cultural landscape, preventing imminent logging and development through a treaty-related measures (TRM) agreement with British Columbia (BC), Canada and the Hul’qumi’num Treaty Group (HTG). This was the first land protection TRM in BC which protected 1700 hectares at Hw’teshutsun, located in the Cowichan Valley on southeast Vancouver Island, BC. The TRM followed the declaration of a “tribal preserve” by Cowichan Tribes (Cowichan Tribes, 2000a) and a ceremony between five Hul’q’umi’num’-speaking communities to share, “protect, preserve and maintain Hw’te shutsun for the use and benefit of present and future generations” (Cowichan Tribes, Stz’uminus First Nation, Halalt First Nation, Lyackson First Nation and Penelakut Tribe 2000). This protection TRM is notable as it is an exercise of provincial jurisdiction which attends to the cultural, rather than ecological, value of Hw’teshutsun: legislative actions undertaken through the TRM protect Hw’teshutsun in accordance with Hul’q’umi’num’ teachings. In effect, the TRM is an entanglement of Hul’q’umi’num’ and Canadian law which has resulted in the protection of an off-reserve Hul’q’umi’num’ cultural landscape – a green, forested area observable in satellite imagery amidst a territory that is over 85% privately owned and devastated by logging and urban development. In such a context, the work done by Cowichan Tribes leadership is a significant achievement, a successful assertion of their jurisdiction to protect a Hul’q’umi’num’ cultural landscape in accordance with their teachings. This thesis documents the work done by Cowichan Tribes in asserting their authority and jurisdiction at Hw’teshutsun through both their own legal pathways and in relation to municipal, provincial and federal governments to prevent logging and the construction of a dump and a race car track. Teachings shared by Cowichan Elders and knowledge keepers about Hw’teshutsun stem from an intimate knowledge of “place” (for examples of intimate relationships with place, see Basso 1996; Mohs 1994; Thom 2017; Charlton 2018; Thornton 2008), which is reflected in Hul’q’umi’num’ law (Morales 2014; McLay et al. 2008; Morales and Thom 2020). Through extensive work by Cowichan Tribes leadership, teachings about the integrity of the landscape – particularly quiet and seclusion around places within Hw’teshutsun – shaped exercises of provincial jurisdiction, protecting a large area through rather than typical mitigation strategies that seek to shrink Indigenous peoples’ relationships with the land to tiny, isolated sites. Understanding these legal entanglements opens possibilities for innovative governance that attends to Indigenous peoples’ teachings of places and their enactments of their own laws shaping the governance of shared landscapes.

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