Under Their Own Laws: How the Kitasoo/Xai’xais First Nation created a new marine protected area – without the federal government’s approval

Abstract

On June 21, 2022, the Kitasoo/Xai’xais, a First Nation on the Pacific coast of Canada, unilaterally declared the Gitdisdzu Lugyeks marine protected area (MPA) in their territorial waters of Kitasu Bay. Whether they have the legal authority to create that protected area, however, is a difficult question to answer. The Constitution Act of Canada protects Indigenous people’s fundamental rights to fishing, logging, and land, but technically they remain subjects of the Canadian government. For the Kitasoo/Xai’xais this system is especially frustrating, since like many other Pacific coast nations, they have never signed a treaty with the Canadian government.

The eventual goal, then, for the new MPA is to reach a co-management agreement, where the Kitasoo/Xai’xais and Canadian government establish overlapping MPAs in Kitasu Bay and share authority over the bay’s resources. The Kitasoo/Xai’xais have their traditional knowledge and holistic understanding of their territory that is needed to protect and manage Kitasu Bay. Meanwhile, the Canadian government has far-reaching political power and a national perspective that the Kitasoo/Xai’xais lack. Combining these assets could do great things for the bay. By declaring their MPA, the Kitasoo/Xai’xais are, in a sense, just getting a head-start on this process. They still want the federal government involved, after all. They just felt that they couldn’t wait any longer.

The Kitasoo/Xai’xais have been fighting for decades to keep their environment intact. They have had to use every tool at their disposal – protests, lawsuits, and industry alliances – to maintain their way of living. Now, the Gitdisdzu Lugyeks MPA represents a new opportunity: if the Canadian government comes to the table, the Kitasoo/Xai’xais will have a renewed chance to safeguard their resources under their own laws and practices, just as they did before European colonization. They are using a vast wealth of traditional knowledge, bolstered by decades of their own scientific research, to guide their management practices and ensure their waters and resources will still be there for generations to come. The Kitasoo/Xai’xais, however, are striving for something bigger than themselves: they believe this MPA can demonstrate the power of Indigenous-led conservation both in Canada and around the world.