‘A bureaucracy within a bureaucracy’: The Department of Fisheries and Oceans and relationships under the Maa-nulth Treaty

Abstract

Despite the acknowledgement of the importance of relations with the ocean for nuučaan̓uł ways of being, relationships between Canada’s Department of Fisheries and Oceans (DFO) and nuučaan̓uł Nations remain rife with power inequities. The existence, form, and right for nuučaan̓uł to practice fishing, including commercial fishing, is one such flashpoint where relationships with DFO and thus Canada’s policy and general orientation to First Nations are strained. Even for huuʕiiʔatḥ, one of the five First Nations signatories to the Maa-nulth Treaty, coming to the table as equal treaty partners has been difficult due to DFO’s orientation to nuučaan̓uł fishing rights, the hierarchy of scientific knowledges, and lack of recognitions of legal authorities through hawiłpatak hawiih. Based on our 10 years of research into the implementation of the Maa-nulth Treaty, in this paper we explore the relationship between Huu-ay-aht First Nations and DFO. To do so, we begin by overviewing the process of reserve creation across nuučaan̓uł ḥaḥuułi and how colonial understandings and creations of ‘fisheries’ played a key role in dispossession. We then turn to our interviews with Maa-nulth First Nations negotiation and implementation teams to explore how reconciliation and fishing rights have emerged through the Maa-nulth Treaty, and how nuučaan̓uł knowledges have been disregarded by the DFO. We conclude by profiling the tensions, strengths, and challenges huuʕiiʔatḥ have experienced in exercising their treaty rights, inclusive of hawiłpatak hawiih, through the Maa-nulth Treaty and specifically with the Department of Fisheries and Oceans.

Introduction

nuučaan̓uł ḥaḥuułi spans west along the mountains of the lands and waters of what is now known as the western part of Vancouver Island, British Columbia (BC), Canada. Since time immemorial, nuučaan̓ułatḥ have relied upon the streams, tides, waters, and oceans for economic, social, cultural, legal, and political sustenance (Kam’ayaam/Chachim’multhnii Atleo, 2015; Atleo, 2004; Castleden et al., 2009; Coté, 2022; Happynook, 2022). Yet, nuučaan̓ułatḥ continue to be subject to the dual barriers of fisheries regimes across ḥaḥuułi: firstly, stringent commercial fisheries regulations, backed by a narrow definition of western scientific knowledge that erases and belittles nuučaan̓uł knowledge systems and, secondly, legal regimes that have and continue to govern harvesting practices. While these barriers are experienced by nuučaan̓ułatḥ contemporarily, they are rooted in a long history that stretches beyond the current moment to the fundamental structuring of Canada’s common law, access to and assertions of territorial control, and values core to at times divergent worldviews.

Natural resource and management systems perpetuated by coloniality have attempted to erase t’aaq-wiihak, or fishing with the permission of haw̓iiḥ, whose rights and responsibilities are connected to ḥaḥuułi. As c̓išaaʔatḥ scholar Charlotte Coté (2022: 6) states: ‘colonial erasure goes beyond removing Indigenous peoples from our lands, waters, and foods; it was just as much about silencing our voices, erasing our ability to pass on our cultural knowledge, and then having the ethnocentric belief that settler society could, and should, speak for us’. Reading Coté’s words, it becomes clear that colonial land and fisheries management regimes are underpinned by power and authority that disregard Indigenous legal systems that govern harvesting, as is the focus of this paper, in nuučaan̓uł ḥaḥuułi. ¹

In colonial contexts, power structures create and maintain management systems that are normalized along with the values inherent to such worldviews (Salomon et al., 2023; Silver et al., 2022). Sciences that would come to define fisheries regimes today emerged in tandem with colonial aims to define access to Indigenous territories. For instance, Finley and Oreskes (2013: 246) speak to early concerns raised about overharvesting in the 1940s, stating ‘[where scientists saw a] biological problem, the British Foreign Office and the US State Department saw territorial ones. For both governments, fishing was tied to the freedom of the seas, historic patterns of use, and territorial claims’. In other words, fisheries were and remain just as much about the management of fish as they are about managing territory and law, including adjoining systems of governance and authority. Despite the cultural and legal barriers imposed by coloniality including environmental policy and management as asserted through fisheries regimes, nuučaan̓ułatḥ, including huuʕiiʔatḥ, remain dedicated to breathing life into sacred governance and principles that direct fish harvesting, including ḥawiłp̓atak ḥaw̓iiḥ.

In this paper, we discuss huuʕiiʔatḥ ancestral and legal authority, values, and epistemologically power-laden challenges that have created a fundamental incompatibility between Canada’s Department of Fisheries and Oceans (DFO) and Maa-nulth Treaty First Nations rights and responsibilities, including DFO’s failure to recognize nuučaanuɫ rights and ḥawiłp̓atak ḥaw̓iiḥ. ² We do so by drawing from the interviews with Maa-nulth negotiation and implementation teams (e.g. Maa-nulth Treaty Society and Maa-nulth Nations, Canada including DFO ³ , and BC provincial teams) and document analysis conducted by the research team between 2014 and 2023. Since we discuss the importance of ḥawiłp̓atak ḥaw̓iiḥ, we have chosen to use nuučaan̓uł language in our text without in text English translations. We do so since translations from nuučaan̓uł to English are often expected to be formulaic, which does not uphold the meaning of nuučaan̓uł words or their relation in broader huuʕiiʔatḥ worldviews. We have also chosen to include nuučaan̓uł words in this way to disrupt the seeming necessity for Indigenous languages to fit into English paradigms, rather than the other way around. We have thus included a glossary at the end of the text providing simplistic interpretations of the concepts and understandings that we use in the article. We also use a contemporary nuučaan̓uł writing style, which differs across nuučaan̓uł dialects and generational users including even those who we cite in text. We have sought to honour the writing styles and spelling of nuučaan̓uł speakers who have come before us by keeping their language style intact. Since nuučaan̓uł is an oral language, there has never formally been an accepted writing structure; writing structures were instead gifted by linguists and remain widely used, yet have never been formally accepted by nuučaan̓ułatḥ.

ʔaḥkuuʔaƛin ʔayaqin ʔuuʔuukʷaʔatḥa. ʕatiqšiƛni yaqwiiʔitq quuʔas, ʔiš yaqw̓it̓asii.

ḥačatakni ʔuušił huḥtak. hišinkḥni ʔaayačił huḥtak.

wik̓in tuuḥuk. wik̓in qayaačiƛ. čaamapiʔin ʔuuʔuukʷaʔatḥa.

hiišiłni suučiip ciqy̓akm̓inḥukqin (East Barclay Sound Nuu-chah-nulth, ‘Standing Tall’ Language Learner Statement from LING 181, May 2018).

Hawiłp̓atak ḥaw̓iiḥ and Fisheries: The Maa-nulth Treaty and the tašiiʔakqin ʔuyaqhmisukqin (Our Journey, Our Story) Research Project

Despite the unwavering acknowledgement of the importance of relations with the ocean for nuučaan̓uł ways of being, relationships between Canada’s DFO and nuučaan̓ułatḥ remain rife with power inequities. The existence, form, and right for nuučaan̓ułatḥ to practice fishing, including commercial fishing, is one such flashpoint where coloniality remains embedded in DFO, and thus Canada’s policy and general orientation to relationships with First Nations. Even for Nations’ who have decided to accept and now implement modern treaty agreements – agreements that have been touted as ‘the highest expression of reconciliation in Canada’ (British Columbia Treaty Commission, 2016: 1) – coming to the table as equitable treaty partners appears impossible due to DFO’s orientation to nuučaan̓uł fishing rights, scientific knowledges, and legal authority through ḥawiłp̓atak ḥaw̓iiḥ. These challenges have been identified in our previous research while we explored the first 5 years of treaty implementation; ‘Virtually all research participants identified the relationship between Maa-nulth and the DFO to be the most dysfunctional aspect of the new relationship [established through treaty]’ (Sloan Morgan et al., 2018: 328). Now 10 years into treaty implementation, concerns and frustrations with DFO’s role as a treaty partner and with implementation remain. For example, in Sloan Morgan et al. (2023: 66), Chief administrative officer for Uchucklesaht Tribe Government shared:

I’ve always had a frustration dealing with DFO. And I think so do the other departments, federally, you know. They list … decisions or … bureaucratic nonsense that comes out of them, and they don’t understand … It’s like you signed a deal [a treaty] with Canada, and maybe there should have been somebody at DFO at the table, as well. You know, that’s kind of how you feel, like they’re outside of that framework (Scott Coulson, interview with Sloan Morgan, November 2021).

The frustration experienced by Maa-nulth Nations in navigating the relationship with DFO is based on an institutional dynamic that has been revealed through academic and legal analysis. For instance, a legal analysis on the specific role of commercial fishing rights ⁴ in modern treaties asserts: ‘Reconciliation appears to be impossible unless Canada revises its rigid policies respecting the negotiation of commercial fishing opportunities in modern treaties’ (Rich and Haines, 2017: 14). These challenges to accessing commercial fishing rights exist despite modern treaty (also known as comprehensive land claims) holders having access in principle to communal commercial fishing licenses, or ‘F’ licenses (Silver and Stoll, 2019: 999). These tense relationships are also present and have been recognized for non-treaty nuučaan̓ułatḥ who are governed by the Indian Act. In 2021, for example, the Supreme Court of Canada rejected Canada’s attempt to overrule a decision by the BC Supreme Court that would ignore nuučaan̓uł rights to commercial fishing. ⁵ In so doing, the nuučaan̓uł plaintiffs of Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht, and Tla-o-qui-aht First Nations closed legal avenues for Canada to challenge what the BC Supreme Court found was their Constitutional right to fish and to commercially sell fish (less geoduck) (Sayers, 2021). This decision (Ahousaht et al. v. Canada [2021]) affirmed what nuučaan̓ułatḥ had long asserted: that fisheries, including rights to commercial fisheries, were never relinquished. Whether we look to the courts to better define Aboriginal rights for non-treaty and treaty First Nations alike, to legal analysis of modern treaties, or to nuučaan̓uł scholars and knowledge holders, the message concerning DFO’s relationship with nuučaan̓uł, including modern treaty Nations, remains clear: a change must occur to allow for the good faith enactment of (treaty) relations.

Our research is a culmination of work as the tašiiʔakqin ʔuyaqhmisukqin (Our Journey, Our Story) research team and advisory committee that has, for over a decade, centred on the negotiation and now implementation of the Maa-nulth Treaty. ⁶ The Maa-nulth Treaty is a 320-page legal document with over 600 pages of appendices and hundreds of additional pages of side agreements. A number of side agreements are dedicated to particularly tense fisheries and harvesting negotiations that parties were unable to come to an agreement on during the nearly 20-year negotiation process. As a dense legal text, it is at times hard to ascertain the life that the five Maa-nulth signatories – huuʕiiʔatḥ, Ka:'yu:'k't'h'/Che:k'tles7et'h', Toquaht, Uchucklesaht and Yuułuʔiłʔath – breathe into the Maa-nulth treaty. The life breathed into the negotiation and implementation of the treaty is intended to create more room (within colonial law) for ḥawiłp̓atak ḥaw̓iiḥ, responsibilities as provided to nuučaan̓ułatḥ by naas to be enacted (Huu-ay-aht First Nations, 2012), and for self-governed acts of nuučaan̓uł lifeways to be upheld (i.e. Happynook, 2022: 16).

Relations with and responsibilities to waters and lands was a major driving force for huuʕiiʔatḥ musčim giving elected leadership the directive to move forward with modern treaty negotiations and away from the confines of the Indian Act. This importance is represented in Chapter 10 ‘Fisheries’ of the Maa-nulth Treaty exceeded in length (by one page) only by chapter two, ‘Lands’. According to colonial common law, the Maa-nulth Treaty is intended to set out the full agreement of the five nuučaan̓uł signatories rights surrounding treaty lands and self-governance. As a coastal First Nations whose ḥaḥuułi are intimately connected to lands and waters, it is no surprise that fisheries – and rights to fish and practice huuʕiiʔatḥ lifeways – spans nearly 10% of the treaty text. As Larry Johnson/ʔaaniićačist, Maa-nulth Treaty Society’s Chair of the Maa-nulth Fisheries Committee, summarizes: ‘this [fisheries] is the most important chapter of the Treaty because it feeds our soul and our people’ (interview, October 2021).

Although this work stems from relatively recent research, the topic of ‘fisheries’ along the western coastline of nuučaan̓uł territories spans well beyond colonial contact. Fisheries itself is a concept and form of management heavily defined and regulated through colonial law and conservation paradigms that do not recognize t’aaq-wiihak. Even the seeming interchangeability of DFO staff, a topic that we discuss later, demonstrates the chasm between DFO and Canada’s orientation to relations with Indigenous peoples and t’aaq-wiihak: whereas DFO staff are interchangeable, t’aaq-wiihak, as governed by and through ḥawiłp̓atak ḥaw̓iiḥ, encompass responsibilities and rights that are passed down, relational, and tied to specific places; these rights and responsibilities are not interchangeable or objectively moveable. They cannot be fulfilled through job calls on a government website, but span generations into the past and will exist into the future. As such, what is commonly referred to as ‘fisheries’ in nuučaan̓uł ḥaḥuułi involves understanding dispossession, including reserve creation, economic livelihoods, and self-governance, and interrogating colonial understanding of power, knowledge, and fundamental relations to and with lands, waters, and kin beyond the two-legged variety. We thus briefly overviewing the process of creating reserves across nuučaan̓uł ḥaḥuułi and how colonial understanding and creation of ‘fisheries’ played a key role. While our words here are intentionally unique to nuučaan̓uł and specifically huuʕiiʔatḥ to recognize place- and legal-specificities (see also Kobluk et al., 2024), the basis, strategies, and legal means through which fisheries were created across these ḥaḥuułi extends well beyond these territories. We then discuss the power and authority that exists between First Nations and colonial fisheries management systems and provide examples by shifting into the interview-based and document analysis focus of our paper.

Reserve creation and nuučaan̓uł ḥaḥuułi

Community leaders and scholars have long demonstrated how dispossession as reserve creation across BC was deeply rooted in racist and patriarchal colonial policies and ideologies (Cook et al., 2021; Foster, 1995; Harris, 2002; Hunt'/Tłaliłila’ogwa, forthcoming). Reserve creation across nuučaan̓uł and coastal First Nations territories, however, was unique insofar as fisheries featured prominently in the size and location of reserves. Speaking to reserve creation in BC between 1849 and 1925, settler legal scholar Douglas Harris observes:

After the Douglas Treaties, the work of the Indian reserve commissioners provides the clearest formal recognition of the importance of the fisheries to Native peoples…between the years 1876 and 1910 … the Dominion [of Canada] and provincial governments constructed and then implemented a land policy that was explicitly premised on access to fisheries (Harris, 2002: 15).

For coastal First Nations and nuučaan̓ułatḥ specifically, a particular form of reserve creation took place which led to ‘postage stamp’ sized reserves (McGillivray, 2011: 84) scattered throughout ḥaḥuułi. Recognized as fishing peoples, reserves along nuučaan̓uł ḥaḥuułi are a fraction of the size of many interior Nations, in part due to Coastal Nations being perceived by colonial authorities as largely ocean faring. While true in many regards, this limited perspective failed to recognize the importance of ḥaḥuułi from the shoreline inland or land-use practices that were integral to nuučaan̓uł governance, culture, and existence (see Banfield’s [1855] in Traditional Consulting Services Ltd & Chatwin Engineering Ltd, 2004: 23), let alone the governance structures that connected these relations and associated harvesting practices. The importance of fisheries was also used to drastically reduce reserve sizes across nuučaan̓uł ḥaḥuułi. The Royal Commission of Indian Affairs for the Province of British Columbia (1913-1916) (also known as the McKenna-McBride Commission) used this point to reduce c̓išaaʔatḥ (spelt as ‘seshart’ below) and huuʕiiʔatḥ (spelt as ‘Ohiat’ below) reserves:

The Indians of the West Coast Agency depend almost exclusively for their livelihood upon the fishing, for food supply and for the canneries, and for this reason their Reserves are for the most part of limited area and located at points of special advantage in relation to the fishing industry. The larger Reserves of the Agency present few evidences of cultivation, and the areas previously allotted in the cases of the Tsahaheh (sp) Reserve No. 1 of the Seshart (sp) Tribe and Numakamis (sp) Reserve No. 1 of the Ohiat Tribe, being regarded by the Commission as in excess of the reasonable requirements of the Indians, these Reserves were reduced by the cutting off of 240 acres in the one instance and 600 acres in the other, 840 acres in total of Agency reductions (Royal Commission on Indian Affairs, 1916: 851).

Over 90% of nuučaan̓uł reserve territories remain directly linked to fisheries thus disallowing access to harvesting areas with hundreds of acres (640 acres alone for huuʕiiʔatḥ) removed due to colonial governments perception of nuučaan̓uł practices and fisheries (Harris, 2002: 94–95; see also Royal Commission on Indian Affairs, 1916: 905–906; see also 861–862, 882, 889, 903).

nuučaan̓ułatḥ of Barclay Sound – inclusive of huuʕiiʔatḥ – resisted and took issue with increasingly limited access to ḥaḥuułi. Such concerns also allayed fears of decreasing access to fisheries and an increase of mamałn̓i on nuučaan̓uł lands and waters. These fears have long been documented in historical analysis by anthropologists (e.g. Shoop, 1971), voiced by huuʕiiʔatḥ leaders such as Louis Nookemiis, and huuʕiiʔatḥ commissioned reports and traditional use studies that document the decline in access to fisheries, both in terms of ḥaḥuułi, diminishing reserves, and markets due to changing governmental impositions (Traditional Consulting Services Ltd. and Chatwin Engineering Ltd., 2004). Yet, colonial representatives had assured Barclay Sound Nations’ that their fisheries and right to fish would be protected. Harris (2008: 93) emphasizes this point:

In June 1882, he [Reserve Commissioner O’Reilly] travelled to Barkley Sound and the Alberni Canal, Nuu-chah-nulth territory on the west coast of Vancouver Island. During a week…O’Reilly also told the Nuu-chah-nulth that their fisheries were protected. In response to enquiries from a Tseshat (sp) chief, he replied that although alienated land could not be included in the reserves, ‘the Government were anxious to secure to them all their fishing rights’.

At no point did nuučaan̓ułatḥ (or any First Nation whose territories lie on what is now Vancouver Island) relinquish authority over fishing rights – commercial, subsistence, or otherwise – let alone cede authority of ḥaḥuułi for the creation of reserves. Indeed, even when reviewing the historic Douglas Treaties signed by select neighbouring Coast Salish and Kwakwa̱ka̱ʼwakw Nations, the integrity and unrelinquished nature of Indigenous fishing rights remained firm in colonial legal decisions. For instance, by looking to the colonial archive regarding the Douglas Treaties, legal historian Douglas Harris (2008: 27) asserts ‘Their [First Nations] fisheries were not a privilege, nor were they derived from Crown grant. They had rights to fish – rights that originated in their laws and legal traditions – that they had never surrendered’ (emphasis added). ⁷ Outlining the sui generis nature of First Nations fishing rights that exist prior to (and not because of) the establishment of colonial authorities and law, Harris also demonstrates that despite this unrelinquished right to fish embedded in legal traditions: ‘Native voices were unequivocal, if seldom heard in the halls of the Department of Fisheries in Ottawa’ (2008: 27). Indigenous voices have not only been unheard historically by DFO, but Indigenous knowledges and legal orders that since time immemorial have shaped nuučaan̓uł relationships to and with waters have long been deemed invalid through western scientific and conservation paradigms that define DFO and colonial relations with fisheries.

Knowledge paradigms, scientific thought, and fisheries in nuučaan̓uł ḥaḥuułi

Undermining Indigenous self-determination and deeming Indigenous knowledges to fisheries as subordinate has long defined DFO’s relationships with First Nations (Salomon et al., 2023; Silver et al., 2022). The construction and paradigm of ‘fisheries’ itself as a separate body of governance to be managed per species demonstrates this dynamic. As nuučaan̓uł scholar Umeek Atleo has proclaimed:

…there is a unity, or meaningful interrelationship [in nuučaan̓uł epistemologies], between all the variables of existence, whereas the dominant scientific methodology assumes that variables are not significantly related unless proved otherwise (Atleo, 2004: 125).

The dominant scientific methodology that Umeek refers to is one prevalent in conservation sciences and resource management approaches that direct DFO’s jurisdictional practices and paradigms (C. G. Atleo, 2010; U. Atleo, 2004; Happynook, 2022). Kobluk et al. (2024) speak to this point broadly as siloed forms of knowledge and thus, management, versus place-based knowledge and stewardship; the authors demonstrate how these knowledge paradigms then feed siloed environmental policy. The development of such scientific paradigms and environmental policy often came at the expense of First Nations. For instance, huuʕiiʔatḥ ḥaw̓ilth ḥapinyuuk (Tommy Happynook) speaks of scientific experiments looking at watershed and salmon population impacts from forestry that took place in čaačaaci̓iʕas.

‘In 1970’, Happynook (2022: 14) explains ‘čaačaaci̓iʕas, known by then as Carnation Creek, was the subject of an experiment that evolved into a multidisciplinary and ongoing research project studying the impacts of forestry practices on watershed processes and salmon populations’. ḥapinyuuk points to a Government of BC’s website that holds up these ongoing experiments as foundational to scientific knowledge:

This intensive, single-watershed case study has generated the longest series of continuous data on fish-forestry interactions in the world. The comprehensive, multi-disciplinary study has made major contributions to B.C. forestry legislation, regulations, and guidelines in the 1980s and 1990s. It continues to inform best management practices today (Government of British Columbia, 2022, np)

This long-term research project was ‘initiated by Fisheries & Oceans Canada [DFO] and MacMillan Bloedel Ltd [a logging company] together with federal and provincial government partners including the Canadian Forest Service and the B.C. Forest Service’ (Government of British Columbia, 2022: np). Now led by BC’s Ministry of Environment and Climate Change Strategy, studies continue to understand ‘long-term, forestry-related effects and watershed recovery processes in collaboration’ (Government of British Columbia, 2022: np). What is absent from the study description, however, is any reference to huuʕiiʔatḥ, huuʕiiʔatḥ ḥaḥuułi, or that ḥawiłp̓atak ḥaw̓iiḥ has long been guided in accordance with research questions driving the study (e.g. research question 4 ‘Can watersheds and streams recover on their own?’).

ḥapinyuuk speaks to the longstanding impacts of this study into ‘natural resource management’, particularly in regards to ḥaw̓iiḥ stewarding of čaačaaci̓iʕas and čaačaaci̓iʕasaht ⁸ abilities to reside in, draw sustenance from, or exercise Indigenous rights:

The fact is that was nearly destroyed by acts of colonization and scientific experimentation to enable natural resource extraction and capitalism: the watershed was clear-cut and as a direct result, the land became uninhabitable for people and animals (Happynook, 2022: 14-15).

Happynook’s example of čaačaaci̓iʕas experiments is but one example of how scientific knowledge has come at the expense of – and on the territories unceded by – Indigenous rights holders. We see the ongoing impacts of this disregard for First Nation authority over territories through not only experiments but also in species management and conservation practices that now guide DFO paradigms.

Looking to how individual species are studied, including species thresholds through approaches such as maximum sustainable yields (Finley and Oreskes, 2013), demonstrates a fundamental difference between DFO’s epistemology and that of nuučaan̓ułatḥ (Kobluk et al., 2024; Silver et al., 2022). Popken and colleagues (2023: 14) extend this point when they speak to sea otter management in nuučaan̓uł territories:

Without accounting for this reality [power-laden conservation practices that, in turn, shape environments], and given the DFO’s centralized structure, Canadian sea otter management actively promotes the normative priorities of the DFO over the priorities of Nuu-chah-nulth communities. Such exclusion and erasure of Indigenous knowledge in environmental governance extends settler colonialism by undermining Indigenous self-determination over territorial lands and waters.

Self-determination is about governing lands and waters, and the ability to have knowledge systems respected and passed intergenerationally. As Popken et al. (2023: 15) share in their reframing of fisheries as nuučaan̓uł access to traditional foods:

Nuu-chah-nulth access to traditional foods is crucial beyond bodily nutrition. Community practices associated with shellfish harvesting translates to time spent on the water, supporting intergenerational knowledge transfer and enactments of self-determination. These resurgent practices support the revitalization of core relationships that have been disrupted through colonialism, promote both food sovereignty, and uphold collective continuance’.

By excluding and erasing nuučaan̓uł knowledges, objectives, values, and governance principles in fisheries management and instead continuing to enforce conservation paradigms as superior, Indigenous self-determination continues to be hindered and associated power dynamics remain normalized across Canada’s governance and, as is the focus of this paper, through DFO (see also Salomon et al., 2023). To explore how these dynamics are maintained even through a modern treaty context, we now turn to interviews we have conducted with Maa-nulth negotiation and implementation teams on the relationship with DFO.

Reconciliation, modern treaty making, and commercial fishing

While modern treaties have been heralded as ‘the highest expression of reconciliation’, they neglect to respect responsibilities and rights regarding fisheries. The Maa-nulth Treaty itself does not address fishing rights in full. Instead, much of this language is outlined in Side and Harvesting Agreements that relate to but are outside of the immediate purview of the treaty. Side agreements were often where topics that presented significant challenges to negotiate were, to use the language of treaty negotiators, ‘punted’. Punting topics down the line of negotiation meant that matters that were particularly challenging to come to a resolution were negotiated separately and after treaty itself was finalized. For the Maa-nulth Treaty, these side agreements were often negotiated in the 2 years between finalizing the agreement and truing laws, a time when treaty partners were preparing for implementation. Maa-nulth Nations were in a unique position during negotiations as many of the Nations, including huuʕiiʔatḥ, were involved in the Ahousaht et al. v. Canada litigation. Treaty Nations, however, are unable to be involved in active litigation against Canada or BC for treaties to progress. Section 1.10.2 of the Maa-nulth Agreement speaks to this point, stating: ‘No Party will challenge, or support a challenge to, the validity of any provision of this Agreement’. Recognizing the importance of having commercial fisheries recognized in treaty rights, Maa-nulth Nations negotiated what’s often referred to as the ‘Me-too’ clause. Maa-nulth Legal Counsel, Brent Lehman, reflects on the emergence of this clause when Maa-nulth Nations had to leave litigation in order to finalize the treaty ⁹ :

There is another…side agreement called the Fisheries Side Agreement that was negotiated just in the two years leading up to the treaty closing. And that agreement says, whatever changes Canada implements to the licensing and management scheme [of fisheries], out of the Ahousaht Case that Maa-nulth can negotiate similar changes to the managing and licensing system for Maa-nulth (interview, July 2021).

Groundwork for the ‘me-too’ clause is laid out in section 10.2.3 of the Maa-nulth Treaty (2009):

If the highest domestic court that considers the Litigation determines that one or more of the plaintiffs has an aboriginal right to fish for salmon, halibut, Rockfish, roe herring, sablefish, prawn or crab and to sell the fish caught under that right on a commercial basis, upon the written request of the Maa-nulth First Nations provided within 8 years of such determination, the Parties will amend this Agreement and the Maa-nulth Harvest Agreement as described in the Maa-nulth Harvest Agreement.

Canada’s unwillingness to include commercial fishing rights in modern treaties has been questioned by First Nations and legal councils. For instance, a commissioned legal analysis of commercial fishing rights and modern treaties in BC plainly states:

To date, modern treaties have failed to deliver commercial fishing opportunities to First Nations sufficient to meet their cultural and economic needs. It appears that the reason for these shortcomings is not that First Nations are satisfied to forego commercial fishing opportunities for other benefits, but rather that Canada refuses to deviate from established policy [as created and enforced by DFO] (Rich and Haines, 2017: 9).

DFO’s unwillingness to deviate from established policy was also experienced at negotiation tables that Maa-nulth Nations sit, including the Species at Risk Act (SARA) of 2019/2020. Legal counsel for the Maa-nulth Treaty Society who sat at that table reflected on these dynamics, stating:

…that group of DFO people at that [SARA] table were still very much the old school DFO. We had to claw and scratch for every little thing we got in that protocol. But it’s different now on the Me-Too side agreement negotiations, it’s some of the same people, but the leadership is different, the leaders at the table are different, and there’s a different attitude…I think I would say that that shift is even taking place within DFO (interview, July 2021).

A shift in attitudes at the ‘Me-too’ negotiation table may reflect the fact that three appeals have now taken place affirming nuučaan̓uł commercial fishing rights. As then Elected Councillor for huuʕiiʔatḥ First Nations’ and Chair of the Alberni-Clayquot Regional District (ACRD), sayaač̓atḥ/John Alan Jack, reflects:

…three appeals and three victories on our part – on Indigenous people’s parts – [have taken place in the courts] that [affirm an] economic fishery is going to happen so make it happen. Now we need a way to compel DFO to actually and realistically and effectively move through the process in a way that’s not inadequate, that we’re not being slow-rolled and the process drawn out (interview, June 2021).

It is helpful to pause here and look into the context of these sections of the Maa-nulth Treaty – those that will ideally not be ‘slow rolled’ now that Ahousaht et al. v. Canada has been concluded.

Maa-nulth Treaty provisions outlined in 10.2.3 create options for future negotiations by drawing on side ‘harvesting agreements’ that were established, not an outright provision for commercial fisheries itself (Huu-ay-aht First Nations, 2019). Indeed, the fact that Harvesting Agreements are included in amendments and side agreements positions these sections outside of the formal treaty and thus, constitutional protection. Rich and Haines (2017: 9) pick up on this point and the failure for a ‘treaty fishery’ to be created outright due to how interests were negotiated:

However, the triggered amendments and side agreement will not create a ‘treaty fishery’ for Maa-nulth in which the treaty First Nations would manage independent commercial fisheries based on a share of the total allowable catch (as is the case for the Nisga’a Nation). Instead, the amendments would move provisions of the Harvest Agreement that grant Maa-nulth First Nations access to the integrated commercial fishery out of the Harvest Agreement and into the treaty, and provide for future negotiations.

The lack of recognition of commercial fisheries potential in the Maa-nulth Treaty is not merely a point of legality: it is an example of the fundamental incompatibility with DFO’s perception and culture in regards to Indigenous rights and responsibilities, including failure to recognize nuučaan̓uł law inclusive of ḥawiłp̓atak ḥaw̓iiḥ. Legal practitioners who have analysed the potential for commercial fishing rights in regards to the Maa-nulth Treaty further this point when they observe:

Reconciliation requires that First Nations whose cultures and economies have depended on fisheries since long before contact, maintain a share of these fisheries. This share must be provided in a way that recognizes their distinct cultural and economic requirements, which are significantly different than those of the general commercial fishery (Rich and Haines, 2017: 14, emphasis added).

The challenges experienced with achieving nation-to-nation treaty relations, which include fisheries, run much deeper than recognition of commercial rights. Rather, all participants who we have spoken with during our research have pointed to the challenge of negotiating, implementing, and having rights recognized by DFO. Brent Lehman, legal-council for the Maa-nulth Treaty Society, shared this experience when he stated:

Out of all of the departments at the federal level, out of all of the ministries I’ve worked with on the provincial level, local governments, regional districts, municipalities, all of them, except DFO, have gone out of their way to work with Maa-nulth. To say, ‘we want to work with you to support you and self-government, this is part of our role as government in reconciliation. It’s not always easy, but let’s find a path forward’. Even the Ministry of Finance…the tax people who…have the reputation of being the most difficult and hard-nose to work with, still, they come to the table trying to find a way forward. DFO? completely different (interview, July 2021).

sayaač̓atḥ/John Alan Jack furthered the point of contention with having new relationships under treaty recognized by DFO specifically:

…an egregious example of lack of movement is any relationship with the Department of Fisheries and Oceans. Specifically, within the Treaty, there should be a language that compels DFO not to slow roll absolutely everything which they’re doing. That’s just part of the culture [of DFO] and that won’t change but looking at that… the military [for instance] if you change the regulations then a change has to happen, because it is by the book or, at least on paper. [That is not the case with DFO] (interview, June 2021).

Repeatedly, we heard from those implementing the Maa-nulth Treaty about the difficulty of creating functional relationships with DFO. This difficulty was often discussed as a culture that permeated the Department: ‘just sitting down with those DFO representatives, it was such a different dynamic from every other negotiation table I sit at… there’s just a different culture that I think is so deeply rooted that that’s why you hear the complaints you do. It is…very internally focused, and it’s protection’ (Brent Lehman, interview, June 2021). To Maa-nulth Nations, however, fisheries is more than just a negotiating table. The practice of fishing according to t’aaq-wiihak is an enactment of ḥawiłp̓atak ḥaw̓iiḥ, and upholding relations with ḥaḥuułi and one another core to nuučaan̓uł lifeways. As ʔaaniićačišt/Larry Johnson stated, accessing fisheries and the knowledges needed to do so according to ḥawiłp̓atak ḥaw̓iiḥ is an enactment of healing and re-enacting right relations:

We need to know how to nurture ourselves again…[Colonialism] broke all of our systems… it broke the chain. It broke that nurturing chain, where the grandparents were instilling the values and principles…the true meaning of ʔiisaak, of caring, of compassion…teachings that were taught by the mothers and grandmothers at that early age, whether the parents were out working to make everything else come together and work, we'd lost that chain, and we have to get it back (interview, October 2021).

Recognizing that many huuʕiiʔatḥ musčim live away from huuʕiiʔatḥ ḥaḥuułi, ʔaaniićačišt commented on how traditional foods, specifically fish, connect those living away from home with their homelands and culture: ‘you look at our urban people, they're the ones that need traditional foods, they’re the ones that need our culture to bring themselves home and to find out who they are and where they come from, as well as come out of this residential school loop of drugs and alcohol’ (see also Coté, 2022). When viewed in this light, the dysfunctional relationship with DFO is more than just an issue with bureaucracy. Rather, it remains a barrier to huuʕiiʔatḥ and nuučaan̓ułatḥ ability to practice self-determination in the shadow of intergenerational harms caused by colonialism, including the legacy of residential schools. As Uchucklesaht’s Chief administrative officer Scott Coulson aptly summarized: ‘[When it comes to fisheries related decisions] it’s food on people’s tables, you know, so get the right person [from DFO] that can make a decision. And they [DFO] were not able or willing to do that’ (interview, November 2021).

A ‘bureaucracy within a bureaucracy’: Relationships through the Maa-nulth Treaty

Participants from Maa-nulth First Nation’s negotiation table and now implementation committees have long pointed to the fundamental challenge with the culture and structure of DFO. Maa-nulth Legal Counsel Brent Lehman reflected: ‘DFO culturally, within the Federal government, is looked at as just having a completely different culture – different internal culture in how they operate’ (interview, July 2021). Experiencing DFO as an entity seemingly different from Canada despite being under the purview of the Canadian government was echoed by Maa-nulth Treaty Society’s former Administrator who named the Department as ‘a bureaucracy within a bureaucracy’ (interview, November 2016). The impacts of these dynamics have had very real and challenging consequences for Maa-nulth First Nations.

A commonly referred to example by Maa-nulth Nations of a challenge during negotiations with DFO include proposing that crab allocation be restricted to one and a half crab per enrolled musčim per year:

It always felt like those [negotiation meetings with DFO] were the meetings that you just didn’t forget. And I felt that sometimes the negotiators on the other side weren’t fair. Like when you get propositions from fisheries areas and sectors around things like crab and then trying to allocate us to 1½ crab per person, per year… we’re West Coast people… this [the ocean] is our true connection to who we are... And that you tried to allocate this type of stuff, and you tried to allocate prawns, and you tried to allocate these things (Irene Peters, former elected Huu-ay-aht Councillor and negotiator, interview, January 2016).

During the first 5 years of implementing the Maa-nulth Treaty, DFO also struggled to meet the conditions of treaty on a reasonable timeline. For instance, in the first years of implementation, Maa-nulth Nations sought to trigger the divergent catch provision in the Harvesting Agreement to access allocated sockeye salmon outside of domestic fishing areas. Although there are clear processes for these provisions to be triggered (and nuučaan̓uł protocols for fishing outside of ḥaḥuułi), Maa-nulth Nations were told that they were not ‘proving their effort to fish’ in their Domestic Fishing Area (personal communication between ʔaaniićačist and Sloan Morgan, April 2024). After months of attempted discussions and Maa-nulth Nations following provisions outlined in the treaty, the then Minister of Fisheries and Oceans (Minister Shae) delayed signing off on these provisions. As Maa-nulth’s legal counsel who was interviewed during this time shared: ‘I was just on a phone call this morning talking about the failure of the Ministry of Fisheries and Oceans to respond to letters [to approve Maa-nulth’s divergent catch allocation]. Weeks and weeks and weeks [have gone by]’ (interview, August 2015). These delays led to Maa-nulth Nations not being able to access their allocated sockeye:

These fish come down the coast for a period of five or six weeks out of the year, and we need to be able to react to where they’re going because they will either go outside the West Coast of Vancouver Island, along the Maa-nulth traditional territory where they have a [treaty] right to fish, or they’ll come inside [the Salish Sea]. And with environmental changes, it’s what we call the diversion rate. Last year [2014] the diversion rate was 98%. There were no fish on the West Coast of Vancouver Island. But we could not get Minister Shea to give consent for Maa-nulth to fish outside their domestic fishing area (Brent Lehman, interview, August 2015).

Reflecting on this experience seven years later, ʔaaniićačist identified a fundamental challenge with DFO’s structuring and the bureaucratic nature of treaty: ‘The fish move… and we couldn’t, our permit couldn’t move with the fish’ (interview, October 2021).

The hierarchical nature of DFO and the immensity of the bureaucracy internal to the department in addition to the tendency to shuffle staff proves particularly challenging for Maa-nulth Nations. This issue impacted Maa-nulth First Nation’s ability to have their divergent catch provisions recognized, and continues to impact Nation’s ability to move forward on particularly challenging topics. As ʔaaniićačist shared: ‘there’s challenges and these challenges are tough because DFO keeps changing their characters’ (interview, October 2021). A representative for DFO affirmed this tendency stating that ‘it is fairly normal’ even for high-level positions, such as that of Canada’s DFO co-Chair for Maa-nulth’s Joint Fisheries Committee, ‘to see a 3-year turnover’ (DFO’s Joint Fisheries Committee, interview, June 2023). Maa-nulth Nations find themselves continually having to educate new DFO employees on conversations to date, including provisions of Harvesting Agreements and the Treaty. ʔaaniićačist, as co-Chair of the Maa-nulth First Nations’ Joint Committee, elaborated on this frustrating experience:

…the Government of Canada, they shift people around a lot… What’s happened is that they don’t educate the person coming in. So, consequently, you know, as that point person, I’m educating the next person coming in as to our processes. And then they, they’re usually either buying in and going okay, and start to work with me and the process, or they’re going back in their internal to check to see if I’m BS-ing them or not… And so, that’s frustrating as well… I still think it’s hit and miss with some of the staff through the whole hierarchy of DFO… that there’s things that just don’t move, and why don’t they move? Because it doesn’t make sense… for the government to say how First Nation relations are most important, well, you signed a treaty with us, how come we’re still being treated the same as everybody else? (interview, October 2021).

While DFO has been touted as a ‘bureaucracy within a bureaucracy’, the Government of Canada’s (Indigenous and Northern Affairs Canada, 2015) ‘Cabinet Directive on the Federal Approach to Modern Treaty Implementation’ outlines the need for a whole of government approach to modern treaty implementation (see also Sloan Morgan et al., 2018). This directive was furthered by the Government of Canada’s (2023) ‘Collaborative Modern Treaty Implementation Policy’. ¹⁰ Reflecting on the need for a whole of government approach, a representative of Canada for treaty implementation in British Columbia shared:

We all work together from a whole-of-government perspective. And I think our strength is basically in how we collaborate together and work together in the treaties, and that’s very much the focus we take, is that we’re here to help we’re here to support, Canada speaks with one voice. That’s what we always need to do; we remind folks that we always speak with one voice. So, when the DFO is speaking, they’re speaking on behalf of Canada, when CIRNA is speaking, they’re speaking on behalf of Canada. And we are very much focusing right now, one of our major priorities is making sure that we’re aligned in our messaging and… we’re consistent versus one message here and a different message there. That’s not what we want to see (interview, July 2021).

While reflecting on the strength of a whole of government approaches to implementation, the same representative of Canada shared a concern: namely, with how implementation committees concerned with fisheries – called the Joint Fisheries Committee (JFC) – engaged with the broader Maa-nulth Implementation Committee:

...there’s a joint fisheries committee that the Maa-nulth have as part of the treaty, and the DFO, of course in BC are part of that conversation. But that’s one thing we’ve noticed is there’s really not a lot of overlap or activity, or even collaboration, between the JFC and the [Maa-nulth Treaty] Implementation Committee. So, one of the things that we’ve been doing in working with our DFO colleagues, we’ve been developing, or establishing relationships, to work more closely with our DFO colleagues to understand how the JFC works, explaining to them what our implementation committees does. Because sometimes resource management, particularly fisheries matters, do come up at our [Implementation Committee] table (interview, July 2021).

In 2021, however, DFO appointed a representative to the JFC that appeared more dedicated to functional relationships: ‘[the person] there [Canada’s representative on Maa-nulth’s JFC] that’s… replaced the previous worker…I find this time it’s feeling better because her grasp on reconciliation and the Treaty is a little bit different than the previous folks that were there’ (ʔaaniićačišt, interview, October 2021) ¹¹ . The importance of functional relationships was echoed by DFO’s JFC representative, who shared: ‘it's about relationship, relationship kind of being the foundation that makes everything else work’ (DFO’s Joint Fisheries Committee Co-Chair, interview, June 2023). The importance of relationships was furthered by ʔaaniićačist when he reflected on the nature of treaty itself:

… to me, the treaty is all about building a relationship with Canada and BC, and if we can have a real respectful relationship, in government-to-government, looking out for each other, like a true partnership, then we would be there. But the fact of the matter is the last 10 years, we’ve had to keep continually reminding Canada of the obligation (October 2021).

While strong relationships on the Maa-nulth Treaty Society’s JFC can help to move particularly challenging and stagnant topics forward, the hierarchical nature of DFO itself continues to present barriers. While earlier in this paper we quoted participants expressing concern at the ‘slow roll’ approach that DFO takes and not sending people to the table who can make decisions for change, other scholars and communities have echoed this frustration. For instance, Popken et al. (2023: 14) note that while interactions with DFO regional office representatives demonstrate a true desire to support First Nations, these representatives ‘were largely constrained without the authority of the DFO’s headquarters in Ottawa’.

nuučaan̓uł knowledges and the DFO

In Prime Minister Justin Trudeau’s 2021 mandate letter to the Minister of Fisheries, Oceans, and the Canadian Coast Guard (Minister Murray), he states ‘we must move faster on the path of reconciliation with First Nations, Inuit, and Métis Peoples’ (Office of the Prime Minister, 2021: np). Following Trudeau’s mention of the need to move faster on the path of reconciliation, he points to the need to implement the United Nations’ Declaration on the Rights of Indigenous Peoples (UNDRIP). Later in the mandate, a list of commitments is provided to the Minister of DFO. There is no mention of treaty rights or Aboriginal rights, let alone Indigenous law, in the mandate letter. What does exist is the directive to: ‘Work with Indigenous partners to better integrate traditional knowledge into planning and policy decisions’ (Office of the Prime Minister, 2021: np, emphasis added). Through our research, however, we continually heard that Indigenous knowledges are subordinated in interactions with DFO, thus running counter to the mandated commitments for which DFO is directed to uphold.

DFO has long been documented as an institution rooted in conservation with management decisions reflecting an orientation to a ‘human-nature dichotomy’ (Popken et al., 2023: 15; see also Silver et al., 2022). This dichotomy is fundamentally different than huuʕiiʔatḥ and nuučaan̓ułatḥ worldview, t’aaq-wiihak, and sacred principles, including hišuk ma cawak, ʔuuʔałuk, and ʔiisaak (see also Coté, 2022).

To this end, ʔaaniićačist reflects on DFO’s scientific review process through the Canadian Science Advisory Secretariat (CSAS): ¹²

…they [DFO] have a national CSAS process where … all the scientists look at a paper, they all edit it together, and when they're all okay with it, and it goes through more reviews and comes back, still with an opportunity to change… when it's all said and done, it gets published, and to them [DFO], that's like the Holy Grail. So, in order to get into that circle, you have to be a subject matter expert. Because our JFC is deemed among a wildlife committee under … Canada's interpretations, we’re able to get this information and participate [in the CSAS process]…I want to go to the marine mammal [committee] because we have a lot of interest in that and creating that balance in our Territory, in our world (interview, October 2021).

ʔaaniićačišt explained huuʕiiʔatḥ’s sacred principles to CSAS in his preparation for scientific assessments to manage southern resident killer whale populations, which would impact Maa-nulth Nations’ fish allocations.

I talked to them [CSAS] about my teachings, talking about hišuk ma cawak, ʔiisaak, and ʔuuʔałuk, and how everything is interconnected, and how all species are important, that we are equal with all of our brothers and sisters in the natural world. I talked about it [sacred principles] like that in an email. And off I sent the email [to the Chairperson of the CSAS Committee], and they came back, and say they do not deem me a subject matter expert. And I go, ‘wow, I’m deeply offended’. I bring that message back [to my superiors]…we had to pay biologists to go and attend that [event] in Ottawa (interview, October 2021).

As a result of this experience, the Maa-nulth Treaty Society affirmed that ʔaaniićačišt was a traditional knowledge holder and their fisheries expert. Although ʔaaniićačist received an invitation to participate in CSAS’ process on large mammals since then,

…they [CSAS] created a conflict-of-interest paper specifically for, I think, me … in the new terms of reference, now I need to be there from – even though it’s on two topics and I’m only there for one topic – I have to be there for the full 5 days. I have to declare if there’s a conflict of interest, I have to give input on everything. It’s almost like they’re making it so that I can’t go… So I agree to all of these conditions. All of a sudden, they pull transient killer whales off of the file and it’s no longer a species that is of interest to Maa-nulth….so I thanked them for the opportunity and off we go (interview, October 2021) ¹³ .

Maa-nulth First Nations have since been contacted to provide cultural knowledge, as per the Minister of DFO’s mandate letter, on beings such as grey whales. Reflecting on this request, ʔaaniićačišt pointed to the challenge with the very tight timelines that First Nations receive to provide insights and the sheer challenge with this nature of work: ‘it was a huge piece of work to try to synthesize what I call 10,000 years down to two paragraphs and tell them how significant whales are to nuučaan̓ułatḥ’ (interview, October 2021). In order to gather this information and share appropriately, ʔaaniićačišt followed ḥawiłp̓atak ḥaw̓iiḥ thereby contacting ḥaw̓ilth ḥapinyuuk (Tommy Happynook), huuʕiiʔatḥ’s head whaling ḥawił. The approach taken to share the Nations’ knowledge on, in this case, grey whales affirmed t’aaq-wiihak and ḥawiłp̓atak ḥaw̓iiḥ. Such an approach also demonstrates the fundamental difference between the seeming interchangeability and objectivity that drive DFO’s knowledge paradigms, and the distinctly place-based, intergenerationally transferred, and situated rights and responsibilities of huuʕiiʔatḥ knowledges and governance. Recognizing and respecting such forms of governance are core to traditional knowledges that DFO has been instructed to work with alongside Indigenous partners ‘to better integrate into policy and planning’ (Office of the Prime Minister, 2021, np)

Concluding thoughts

In September 2016, nuučaan̓uł Council of ḥaw̓iiḥ, which comprises hereditary leaders across all nuučaan̓ułatḥ, denied DFO representatives’ entry into a meeting to discuss t’aaq-wiihak fisheries. This denial came after seven years of negotiations on fisheries with no progress and when it became clear that DFO was unwilling to take nuučaan̓uł laws and knowledges seriously (Johnson, 2016). Denying DFO entry into the meeting asserted the Council of ḥaw̓iiḥ jurisdiction and law – ḥawiłp̓atak ḥaw̓iiḥ – but also the gap between colonial law and ḥawiłp̓atak ḥaw̓iiḥ. The action by nuučaan̓uł Council of ḥaw̓iiḥ also demonstrated that DFO must be willing to take action on negotiations to respect ḥawiłp̓atak ḥaw̓iiḥ and, as extends from our research, provisions agreed to through treaty. These requirements for action include treaty First Nations, but also extend to all First Nations. As Kobluk et al. (2024: 220) have shared: ‘Restoring the authority of Indigenous Peoples will require a fundamental redistribution of power in environmental governance and a reframing of the goals and objectives of the governance and management of social-ecological relationships’.

The Maa-nulth Treaty outlines provisions for relationships defined by huuʕiiʔatḥ self-government and as recognized by colonial law. When entering negotiations, musčim and huuʕiiʔatḥ leadership were aware of the conditions of modern treaties and how the nature and form of reserve allocation in nuučaan̓uł territories would make claims, such as pursuing an Aboriginal title claim, extremely difficult (see Sloan Morgan et al., 2019). Treaty was thus a compromise and way to move out from under the Indian Act: ‘the Treaty isn’t exact, it’s a tool that we use when we get into trouble’ (ʔaaniićačist, interview, October 2021). The foundation for treaty relations is relational. For these relationships to be functional, however, DFO representatives and the structure of DFO itself must be responsive, rather than laden with barriers. Indeed, this structural and systemic change is emphasized in the Government of Canada’s (2023) policy on modern treaty implementation when they affirm:

Canada is committed to fully meeting its obligations under modern treaties and to achieving their objectives. This will advance reconciliation with Indigenous peoples through renewed nation-to-nation, government-to-government, and Inuit-Crown relationships based on recognition of Indigenous rights, respect, co-operation, and partnership as the foundation for transformative change that moves away from colonial systems of administration and governance (section 3.1, emphasis added)

Repeatedly, however, policy is pointed to as a barrier against effective treaty relations. Yet, DFO and Canada are the bodies that write these policies. As Rich and Haines (2017: 12) reflect in regards to commercial fishing rights and modern treaties: ‘It is important to note that these policies…are purely a consequence of policy decisions by Canada. They are not necessary for conservation or proper fisheries management’.

Through this paper, we have sought to reveal the tensions, strengths, and challenges Huu-ay-aht First Nations’ have experienced in exercising their treaty rights, inclusive of ḥawiłp̓atak ḥaw̓iiḥ, through the Maa-nulth Treaty and specifically with DFO. While we have pulled from a decade of interviews with Maa-nulth Treaty negotiation and implementation teams, we have merely scratched the surface of the information that has been shared with us. We close by departing from ʔaaniićačišt’s reflection, when he asks how one can share the significant of whales to nuučaan̓ułatḥ by synthesizing 10,000 years into two paragraphs? From this we ask: how can t’aaq-wiihak and ḥawiłp̓atak ḥaw̓iiḥ as encompassed by hišuk ma cawak be respected by DFO to move away from colonial systems of administration and governance for respectful and effective treaty relations?

Glossary

ḥaḥuułi – traditional territories

ḥawił – hereditary leader within nuučaan̓uł government structures (singular)

ḥaw̓iiḥ – hereditary leaders within nuučaan̓uł government structures (plural)

ḥawiłp̓atak ḥaw̓iiḥ – traditional governance, ‘law of the hereditary leaders’

musčim – citizens

mamałn̓i – people who travel on a boat and who have no land; often used now in reference to ‘white settlers’

t’aaq-wiihak – fishing with the permission of ḥaw̓iiḥ

hišuk ma c̕awak – everything is one; a notion of the interconnected, interdependent, and reciprocal relationship between the people, the land, and the wider worlds in a physical, spiritual, and social sense

ʔuuʔałuk – taking care of; in this context, this is about taking care of present and future generations as well as taking care of the resources provided by the land and the natural world

ʔiisaak – greater respect; personal and collective respect for the community and its people, traditional knowledge, the natural world, the metaphysical world, and other peoples and communities.

nuučaan̓uł – people along the mountain; a self-designation and recognition of territories for Nuu-chah-nulth Nations in response to attempts at colonial classification

huuʕiiʔatḥ – the people of huuʕiiʔ; Huu-ay-aht

Biography

Onyx Sloan Morgan is an Assistant Professor and Principals Research Chair in the Department of Community, Culture and Global Studies at the University of British Columbia, Okanagan. They are the co-lead of the tašiiʔakqin ʔuyaqhmisukqin (Our Journey, Our Story) research project.

Huu-ay-aht First Nations is a self-governing, modern treaty Nation whose lands are located in the Barkley Sound region on the West Coast of Vancouver Island, at the entrance to Alberni Inlet. Huu-ay-aht First Nations is also a member of the Nuu-chah-nulth Tribal Council and one of the five First Nations signatories to the Maa-nulth Treaty, the first modern-day treaty to be implemented on Vancouver Island. Huu-ay-aht First Nations is a co-lead of the tašiiʔakqin ʔuyaqhmisukqin (Our Journey, Our Story) research project.

Heather Castleden is a Professor and Impact Chair in Transformative Governance for Planetary Health in the School of Public Administration at the University of Victoria. She is the co-lead of the tašiiʔakqin ʔuyaqhmisukqin (Our Journey, Our Story) research project.

ORCID iD

Onyx Sloan Morgan https://orcid.org/0000-0002-1947-1991