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Introduction: NES ĆSE LÁ,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 SELEK̵TEL̵ (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 WSÁNEĆ person. The WSÁNEĆ rely heavily on marine resources, which are integral to the WSÁNEĆ way of life. Salmon are of particular importance to the WSÁNEĆ culture. During ĆENQOLEW (the moon during which the dog salmon return to the Earth) the WSÁNEĆ people fish QOLEW (the dog or chum salmon).[4] This fishing is done at SELEK̵TEL̵ and the salmon harvested there are dried or smoked and then stored away. SELEK̵TEL̵ is thus an important location for the WSÁNEĆ 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 SELEK̵TEL̵ 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 ĆENQOLEW, 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, SELEK̵TEL̵ will always be tied to my family and to my identity as a WSÁNEĆ 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 WSÁNEĆ 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 WSÁNEĆ law would apply to the fuel spill at SELEK̵TEL̵. There are several reasons for this choice. First, a WSÁNEĆ 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. WSÁNEĆ 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 WSÁNEĆ law also differs from Canadian law. The WSÁNEĆ 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 WSÁNEĆ 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 SELEK̵TEL̵ 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 context in which this deliberation might take place, providing insights where I can. An important part of this context is understanding that WSÁNEĆ law is grounded in a different worldview and set of cultural assumptions than Canadian law. This article thus aims to improve understanding of that worldview and the distinctive starting point it provides for understanding “law” and analyzing the fuel spill. In other words, it tackles the question of how we can understand and strengthen WSÁNEĆ normative understandings and responsibilities (bracketing the external pressures and influence exercised by the state) with respect to our relationships to one another and to the Earth.

Much of what I have just identified requires unpacking. Part I will provide my theoretical framework for the revitalization of WSÁNEĆ law on its own terms.[14] It will give the reader a foundation for how to approach WSÁNEĆ law, teachings, and stories when we come more directly to the stories about SELEK̵TEL̵. Part II will then draw upon WSÁNEĆ teachings and stories that I argue are important in framing a different worldview, and for grounding a deliberation about a WSÁNEĆ legal response to the spill. It highlights a greater attribution of “being” and “agency” to land in WSÁNEĆ law. Finally, through engaging these stories, Part III problematizes whether our initial efforts at revitalizing WSÁNEĆ law should be grounded in notions of “jurisdiction” and with specific expectations regarding “remedy”. Specifically, as opposed to approaching WSÁNEĆ law as having jurisdictional authority over land, I argue for a perspective regarding our mutual responsibilities in relation to land. I also argue that jurisdiction can compartmentalize and limit WSÁNEĆ law’s attention to encompassing relationships. Similarly, as opposed to engaging WSÁNEĆ law with the narrow purpose of finding a remedy, I argue that we should first step back and consider how we would characterize the harm of such a fuel spill to begin with, given the different framework of WSÁNEĆ law. Of course, WSÁNEĆ law must face the complex task of resolving problems in order to function properly, and such solutions only arise through practice.[15] The application of WSÁNEĆ law on its own terms is what I ultimately want to happen. The more modest point of this article, though, is to use the SELEK̵TEL̵ spill to uncover the normative grounding of WSÁNEĆ law—and how it conflicts with the normative assumptions of Canadian law—so that we can begin to apply WSÁNEĆ law on its own terms.

I. SKÁLS (Beliefs and Laws): Theorizing WSÁNEĆ Law[16]

A. On Its Own Terms: Culture, Power, and Resurgence

My approach to law is socio-legal in nature—that is, I adopt an understanding that law and culture (or worldview) cannot be separated.[17] In many ways, it is the manner in which law and culture interact that both shapes and frames our thinking within a legal tradition.[18] This cultural grounding is as true for Canadian law as it is for Indigenous law and culture.[19] Understanding WSÁNEĆ law on its own terms therefore requires careful attention to WSÁNEĆ culture more broadly, which is the objective of Part II of this article. This approach also situates my work within a larger discussion regarding colonialism and decolonization. I cannot fully canvass the scholarship in this area, but I seek to be mindful of the operation of power and the implications it has for the processes of revitalizing WSÁNEĆ law. Ultimately, I do not want to predetermine the parameters of WSÁNEĆ law based on the established framework of Canadian law and the state, but to strive for an equal dialogue. Achieving this goal is easier said than done.

Colonial power is not a relic of the past, but continues to operate (often) in a more subtle fashion. Our struggles to revitalize WSÁNEĆ law will therefore continue to come into contact with various dynamics of power, whether that power is social, political, economic, or legal. Glen Coulthard, particularly in his latest work, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition, has become a prominent voice in the analysis of colonial power and the politics of recognition.[20] Central to Coulthard’s analysis of colonial power is understanding colonialism as having a dual nature: structural and subjective.[21] Structurally, power functions to set the terms of recognition “by and in the interests of the master.”[22] That is, the state recognizes Indigenous rights and identity (and by implication Indigenous law) only “insofar as this recognition does not throw into question the background legal, political, and economic framework of the colonial relationship itself.”[23] Subjectively, there is a process of accepting the limited or mis-recognition granted through state structures, which eventually comes to be seen as more or less natural.[24] Through this lens, contemporary colonial power “work[s] through the inclusion and shaping of Indigenous peoples and perspectives by state discourses, as opposed merely to a process of exclusion.”[25] Such observations clearly have implications if we are to consider framing our understanding of WSÁNEĆ law within the established framework of Canadian law and the state.

Coulthard’s response to these observations aligns with the project of resurgence theory.[26] Generally, resurgence theory looks to move beyond critique and state discourses toward a focused regeneration of Indigenous culture, knowledge, philosophies, and ways of being, and to live those teachings in building a lasting alternative to colonialism.[27] For several resurgence theorists this process of decolonization begins with the self[28] and involves a significant turn away from the state.[29] In thinking about the revitalization of WSÁNEĆ law on its own terms I find it useful to draw (though more narrowly) upon resurgence theory.[30] I have bracketed an analysis of the roundtable process not as a definitive turn away, but rather, in favour of grounding our understanding of WSÁNEĆ law with a turn toward something else. As mentioned at the outset, I want to begin by looking to understand and strengthen Indigenous peoples’ own normative understandings and responsibilities (outside the external pressures from the state) with respect to how we relate to one another and to the Earth.

Indigenous peoples, cultures, and legal traditions have been entangled within and struggled against numerous power structures. Indigenous peoples continue to struggle against these power structures in various ways, including through attempts to revitalize Indigenous legal traditions. Debate regarding the operation of power and the best ways to subvert these power structures remains contested, and more than one approach is possible. The primary aim of this Part is to indicate the need to be critically aware of these power structures. If we want to understand WSÁNEĆ law on its own terms, then we must also think about how the revitalization of WSÁNEĆ law connects with the broader regeneration of an alternative way of being in the world, and the implications and challenges that revitalization raises.[31] Later sections will begin to explore this revitalization in relation to the SELEK̵TEL̵ spill. First, it is helpful to turn more specifically to Indigenous legal theory in order to understand what we might look to in order to understand WSÁNEĆ law on its own terms.

B. WSÁNEĆ Legal Theory and Method (Roots and Branches) [32]

John Borrows has persuasively argued for the authority, legitimacy, and applicability of Indigenous law in a contemporary setting.[33] A key idea expressed throughout his work is that Indigenous law (like all law) is living and not static. Therefore, Indigenous law is not rooted in originalism or fixed on returning to something that once was—a central critique often levelled against Indigenous law.[34] Nor is Indigenous law essentialist.[35] Rather, as Borrows notes, Indigenous legal traditions “have ancient roots, but they are not stunted by time.”[36] I take this as my starting point for WSÁNEĆ law and legal theory. That is, I take seriously the notion that WSÁNEĆ law, as a distinct legal tradition, has its own roots that we can draw upon in dynamic ways.[37]

One such source to draw upon is WSÁNEĆ cosmology. Borrows has identified several potential sources of Indigenous law: sacred law, natural law, deliberative law, positivistic law, and customary law.[38] He notes that sacred laws are often “foundational to the operation of other laws” and the belief system of the Indigenous group in general.[39] Therefore, while creation stories or cosmology can be thought of as important sources of law, they are more than that as well.[40] For instance, the dynamic connection between law and cosmology takes shape when we think of an Indigenous ontological understanding of land that assigns much more “agency” and “being” to the land than non-Indigenous worldviews (notably those that inform Canadian law) do. By being, I mean that land and the non-human world is animate. This conception of animacy does not place humans as hierarchically superior to land or the non-human world. Through this conception of animacy, land and the non-human world also have agency—that is, a capacity to act and desire. In short, the relationship between humans, the land, and the non-human world is mutual and reciprocal. It is these types of differences in ontology that create deep tensions between Indigenous and non-Indigenous societies and legal orders, and therefore, I contend, are central to understanding the WSÁNEĆ legal tradition.[41]

My point here is that cosmology provides a framework through which we “can come to terms with the manner in which the laws of that society and the individual’s behaviour are understood.”[42] That is, we can better understand the “principles, ideals, values and philosophies” that inform the legal tradition.[43] A comprehensive knowledge of WSÁNEĆ cosmology is not necessary in order to begin constructing an understanding of the legal tradition, but we need an open mind to the effect cosmology may have on conceptions of proper relationships—whether it is with each other, the Earth, ancestors, or otherwise. This understanding is integral because law is, fundamentally, about relationships.[44]

We can look to creation stories for cosmology, but much can also exist between the lines in stories—that is, much of the worldview and many of the precepts that animate and give context to these stories can also remain implicit.[45] Language can be one way to help bridge the gap between stories and the implicit understandings that give context to them.[46] For example, in the WSÁNEĆ language (SENĆOŦEN) the word for islands is TETÁĆES, which is a conjunct of TEĆ (deep) and SĆÁLEĆE (relative or friend). The WSÁNEĆ concept of islands therefore literally translates as “Relatives of the Deep,” indicating an ontological connection of the WSÁNEĆ people with the islands in their territory.[47] Such an approach to breaking down language provides both non-WSÁNEĆ and non-fluent WSÁNEĆ people with “a window through which to experience the complexities and depth of our culture.”[48]

Since I will soon relate several creation stories I find relevant to the SELEK̵TEL̵ spill, it is also necessary to reflect more specifically on my approach to stories in WSÁNEĆ law. Indigenous oral traditions have always used stories to teach, guide, and reinforce behaviour,[49] meaning they can be used to create a framework for understanding relationships and obligations, decision-making processes, and deviations from accepted standards.[50] In doing so we must work to understand the myriad of different stories across a tradition and how they piece together in complex and informative ways to create a larger conceptual and legal framework.[51] This process involves understanding the principles made explicit within and across those stories (i.e., the what), while also paying careful attention to how they are expressed. That is, it allows us to understand the norms encoded within the manner of speaking or relating those stories and teachings, how the stories themselves are internally organized, and how we are taught to engage with those stories as learners. The speakers or storytellers themselves may not be able to express these norms at a conscious level, but careful attention to the implicit norms governing their discursive practices may provide insights into notions of authority, conceptions of legitimacy, and different ways of being and relating that are central to the tradition.[52]

The purpose of WSÁNEĆ stories is not about returning to the past, but how we choose to relate to and use those stories in guiding our lives today. There is no singular way to tell, use, or interpret a story. Stories are dynamic, not static, and may even take new shapes in different contexts.[53] Stories draw on past knowledge, but there is a continual process of agency exercised in learning from and using those stories.[54] They are a framework for thinking and relating (or the “processes of knowing”) more so than about transmitting “explicit rules”.[55] The diversity of ways to interpret and use stories is an exciting component of Indigenous law. While these stories are less about explicit rules, they can be the framework for deliberation, the means by which we judge the application of specific legal principles, and the soil from which those principles grow.[56]

To sum up, the WSÁNEĆ have creation narratives for all aspects of life and Earth, each contributing to a cosmological theme and way of relating in the world. Taking these stories seriously means paying attention to a sophisticated form of understanding and transmitting a distinctive set of values and cultural assumptions. It also involves learning to discern the legal principles flowing from those stories, values, and assumptions, and the evolving intellectual and experiential context guiding the application of those principles. All of these tools for thinking foreground relationships to the ecosystem and the non-human world, as opposed to a liberal paradigm that centres on the individual. Those relationships have an aspirational dimension, but they are not a romantic ideal any more than the notion of individual freedom and non-interference. They are what we strive for, or the conditions we seek to generate through law.[57] It is an entirely different starting point with its own implications for law.[58]

II. S,OXHELI (Sacred Teachings of Life): Telling a Different Story[59]

All WSÁNEĆ people have a ĆELÁNEN. ĆELÁNEN is a word that can equally describe our ancestry, birthright, or culture, as well as the subcomponents of each. For example, the SENĆOŦEN language is part of our ĆELÁNEN. ĆELÁNEN can also be used to describe our “traditional WSÁNEĆ laws and teachings that form the basis for the governance structure.”[60] Therefore, our creation stories are an important aspect of our ĆELÁNEN. Contained within our creation stories are our SKÁLS (our beliefs and laws) and our S,OXHELI (sacred teachings of life). Our S,OXHELI describe how things came to be and therefore contain important lessons. Our SKÁLS and S,OXHELI are ENSXAXE (something we hold as sacred or spiritual).

The stories in WSÁNEĆ SYESES (our oral history) have characters that are there to remind us of our values, teachings, and our ŚXENÁNS (our way of life). The following words from a WSÁNEĆ Elder emphasize this point in greater detail:

XALS created Saanich and the people in Saanich to care for each other. XALS is our creator. The creation stories of the Saanich People are a journey through Saanich history and across Saanich territory. Though their main purpose can be deemed as being a preservation of Saanich ideas and values, to a Saanich Indian the stories exist as the history of our origin and as the teachings of our creator. A person’s understanding of the value and meaning of these stories changes according to the person’s level of maturity.

In the time of creation, XALS walked on the earth. He transformed the people in Saanich into animals and into stone, and sometimes the animals too were changed. He transformed the creatures of the earth to make an example out of them. Sometimes he made a good example out of them, and sometimes he [made] a bad example. This is how XALS assured his teachings would remain in the minds of the Saanich People, he would change someone and say, “Now the people will always remember what you have done and why you have been changed.”[61]

WSÁNEĆ culture consists of a myriad of stories in which the Creator transformed people and animals as a way of setting an example. Each story is set in a different context and contains its own unique principles. However, beyond any specific principles, these stories also give us broader insights into notions of being, agency, and relationality in WSÁNEĆ law.

A. Being, Agency, and Relationality

SL̵EMEW, the first WSÁNEĆ man, was placed on the Earth in the form of rain. SL̵EMEW assisted XÁLS in forming the world. SL̵EMEW carved the mountains, the rivers, streams and formed the lakes. He makes things grow and brings life to the land.

XÁLS said to SL̵EMEW, “You will cleanse yourself in the lakes and streams.” He listened to XÁLS and purified himself in the way he was told. XÁLS gave SL̵EMEW a gift, a wife and family. SL̵EMEW taught his family to be clean of mind, body and spirit, the way XÁLS had taught him. The WSÁNEĆ should never forget SL̵EMEW. If he had not followed XÁLS’ teachings, he wouldn’t have been given the gift of his wife and family. Without a wife and family for the first man, there may never have been WSÁNEĆ people. Honour SL̵EMEW by always honouring XÁLS’ teachings and XÁLS’ wish for the WSÁNEĆ people.[62]

A common theme in WSÁNEĆ creation stories is that many elements of nature were once people, whether it is the salmon, water, animals, or the islands. We see this in the story of SL̵EMEW, above, who came to the Earth in the form of rain. However, we can further exemplify this point by drawing upon concepts rooted in language. Language “is a way of thinking, or viewing the human experience in the world, as much as it is about communicating.”[63] Take the example of islands, which in SENĆOŦEN are called TETÁĆES. As noted above, TETÁĆES is a conjunct of two other distinct words in SENĆOŦEN: TEĆ (meaning deep) and SĆÁLEĆE (meaning relative or friend). Therefore, TETÁĆES literally means “Relative of the Deep.” To the WSÁNEĆ people, islands are our Relatives of the Deep.[64] On its own, this cosmological point indicates an attribution of much more being to non-human elements of the world, which has a bearing upon how we understand and regulate our relationship with WSÁNEĆ territory. It is, however, not only being, but also a higher level of agency in the non-human world that we must consider in understanding WSÁNEĆ law. Understanding agency in the non-human world can be further exemplified in relation to our Relatives of the Deep, specifically with reference to the creation story of L̵EL,TOS (James Island), an island within WSÁNEĆ territory. The creation story describes both the origin of the island and the name L̵EL,TOS, as well as relating how every island is an ancestor to the WSÁNEĆ:

A long time ago, when the Creator, XÁLS, walked the Earth, there were no islands in the WSÁNEĆ territory. The islands that are there today were human beings (our ancestors). At this time XÁLS walked among the WSÁNEĆ People, showing them the proper way to live. In doing this he took a bunch of the WSÁNEĆ People and threw them out into the ocean. Each of the persons thrown into the ocean became the islands there today. Each of those islands were given a particular name that reflects the manner in which they landed, their characteristics or appearance, or the significance they have to the WSÁNEĆ People. “James Island” was named L̵EL,TOS, meaning “Splashed on the Face.” L̵EL,TOS reflects the way the island landed in the ocean. The southeast face of L̵EL,TOS is worn by the wind and the tide.

After throwing the WSÁNEĆ People into the ocean, XÁLS turned to speak to the islands and said: “look after your relatives, the WSÁNEĆ People.” XÁLS then turned to the WSÁNEĆ People and said: “you will also look after your ‘Relatives of the Deep.’” This is what XÁLS asked of us in return for the care our ‘Relatives of the Deep’ provide for us.[65]

Islands within WSÁNEĆ territory were once our ancestors and were given to us by the Creator to maintain our way of life. With this gift came a reciprocal obligation to care for these islands. This obligation is one of our sources of laws. If we are to understand WSÁNEĆ law on its own terms, it would be a simplification and a distortion to think of them only as “islands”—that is, inanimate masses of rock surrounded by water. What are the implications of this understanding?

Canadian law does account for the environment, but these stories indicate a starting point for WSÁNEĆ law that goes much beyond that posture. Humans cannot live in this world without drawing and relying upon the world around us. This notion is directly acknowledged in the story of L̵EL,TOS: XÁLS turned to speak to the islands and said: “look after your relatives, the WSÁNEĆ People.”[66] The land and ecology provides for us. However, our relationship with the external world cannot centre only on our needs as humans: XÁLS then turned to the WSÁNEĆ People and said: “you will also look after your ‘Relatives of the Deep.’”[67] The greater attribution of being and agency to land means that our application of WSÁNEĆ law must not only be about land, but “deeply informed by the land as a system of reciprocal relations and obligations.”[68] It also means that the responsibility to care for land extends beyond the actions of the WSÁNEĆ. That is, WSÁNEĆ law also provides the obligation to protect the land against the harmful actions of others. One task for the revitalization of WSÁNEĆ law is to continue to think about how our approach to law can meaningfully account for this broader understanding of being and agency, and the responsibility it entails. In a world driven by economics, this approach will require a significant and encompassing shift in perspective.[69] It is also an instance where WSÁNEĆ law encounters the structural aspects of colonialism (i.e., “the background legal, political, and economic framework of the colonial relationship”[70]). That is, the background context to the fuel truck crash is certainly the widespread extraction, transportation, and use of hydrocarbons. While we may focus on the particular circumstances of the accident, it cannot be divorced from this larger context.

These considerations set a broader context in which to consider the application of WSÁNEĆ law generally, but it is also important to have a more detailed understanding of SELEK̵TEL̵ in particular.

B. SELEK̵TEL̵ (Goldstream)





There are several cosmological points to discuss in considering the spill at SELEK̵TEL̵, part of which requires more specific understanding of the names and geography of the area. There are two aspects to the river: SELEK̵TEL̵ (the splitting stream) and MIOEN (the lesser stream). Immediately adjacent to and overlooking SELEK̵TEL̵ is Mount Finlayson, which is known as QENELEL̵ (looking into the groin). Mount Finlayson resembles a young man looking down into his groin, with both of the streams being his legs. There are several implications regarding this image that are worth further consideration, especially since SELEK̵TEL̵ is a ceremonial bathing location. However, let us first consider the WSÁNEĆ notion of water more closely.

The opening paragraph to the previous section introduced the reader to the creation story of SL̵EMEW (Grandfather Rain), the first WSÁNEĆ man, who originated from rain. SL̵EMEW helped form the world. As rain, he also makes things grow and brings life to the land. As part of his role in creating the world, XÁLS told SL̵EMEW to cleanse in the water of the lakes and streams. Cleansing makes one clean of mind, body, and spirit. Because he followed XÁLS teachings, SL̵EMEW was given the gift of family, who he too taught to cleanse. The end of the story indicates that the WSÁNEĆ owe everything to Grandfather Rain because we are all descendants of him. However, we owe everything to Grandfather Rain in a different sense as well. Without water and rain, life on Earth is not possible. Water is a precious element of life that is too often taken for granted. While I earlier related the story of SL̵EMEW to indicate greater being and agency in the non-human world, here I am more specifically drawing on a principle that gives priority to maintaining the integrity of water.

From the story of SL̵EMEW we can draw the importance of XÁLS’ teachings and the sacredness of water.[72] Water originates from rain and both are closely connected. There is sacredness and a ceremonial aspect to water because of this relationality. Water is a pure spirit and thus has the ability to cleanse. The cleansing taught by XÁLS in the creation story of SL̵EMEW is done through the ceremony of bathing, which uses water in the lakes, streams, and ocean.

Bathing (and water) is an important part of WSÁNEĆ culture and strengthens us. When we bathe, we honour Grandfather Rain. Reference to the SENĆOŦEN language further emphasizes this point. The WSÁNEĆ have distinct words for both water and rain, and how we use them reflects the importance of bathing. When we bathe ourselves during ceremony we use the word rain (SL̵EMEW), as opposed to water (ḰO), in order to honour our Grandfather Rain. Bathing is therefore both a ceremony and a prayer. The words that opened this subsection are one way I have been taught to honour Grandfather Rain during bathing: “wash me, wake me, strengthen me today, Grandfather Rain.”[73]

Ideally, bathing is done every morning in a solitary place before the sun rises, because the day is a gift not to be wasted. Bathing is particularly important, however, during sacred parts of our life when our bodies are changing. During puberty or when our sexuality is becoming stronger, we bathe in cold water to train our minds to be strong—stronger than our bodies when necessary. For example, when a young boy is becoming a man, he bathes to learn respect for his own actions. Mount Finlayson—QENELEL̵ (looking into the groin)—reflects this specific teaching.

I noted above that the geography of SELEK̵TEL̵ and Mount Finlayson resembles a young man who is looking down into his groin, with both of the streams being his legs. The teaching is that at this location there was a young man who did not respect his own actions and was changed into the mountain commonly called Mount Finlayson (QENELEL̵). QENELEL̵ (looking into the groin) is therefore there to remind us that there is a time and place for sexual life. There are other WSÁNEĆ stories that reinforce a related theme. One such story is the creation story of QOLEW (the chum salmon). This story is closely related to the story of QENELEL̵ because the chum salmon is the primary salmon that spawns in SELEK̵TEL̵.

The story of QOLEW tells us of a young man who was changed into the chum salmon. He was sexually forcing himself on his own sister. He kept sneaking into her bed at night when it was dark and she could not see who it was. The sister used red earth on her hands to mark the person who was coming into her bed so she could identify him. When she went to look at the different boys the next morning she saw that it was her brother, and she cried. XÁLS came and changed the young man into the chum salmon and thereby made a teaching and example that there should not be rape, nor incest in the family. In speaking with Elders, I have been told that people do not often talk about this story today or ask about its real meaning, though its story and meaning should be shared with the young people where the chum are spawning.[74]

The stories of QENELEL̵ (Mount Finlyason) and QOLEW (the chum salmon), and their corresponding teachings, both centre around the SELEK̵TEL̵ area. There are also clear connections with the obvious sexuality of salmon spawning at SELEK̵TEL̵ more generally. It opens the possibility to reflect on the fish’s experiences in the spawning cycle and create links with these stories about appropriate sexual behaviour. Central, however, is also the story of the first WSÁNEĆ man (SL̵EMEW) and the corresponding teachings about water and bathing. There is a strong interrelationship between all these stories. It may be specifically because of the QENELEL̵ and QOLEW stories that SELEK̵TEL̵ is also an important bathing location for the WSÁNEĆ. The bathing ceremony honours Grandfather Rain, cleanses us, and is meant to remind us to be pure of mind, body, and spirit. As a bathing location, it is thus important that the waters at SELEK̵TEL̵ remain clean and unpolluted.

III. EQÁTEL TŦE MEQ (Our Relationships to All): Re-Framing the SELEK̵TEL̵ Spill

At the outset of this article I indicated several challenges in providing a definitive account of the application of WSÁNEĆ law. Beyond those issues, any attempt at a rigid solution runs counter to WSÁNEĆ pedagogy. If you ask a WSÁNEĆ Elder a question—about the fuel spill at SELEK̵TEL̵, for example—you may well hear in response a series of stories similar to those I related above. These are less about explicit rules than they are about a process of thinking and engaging. This mode of thinking and teaching proceeds from WSÁNEĆ cosmological and ontological assumptions. In explaining WSÁNEĆ legal theory, I indicated that there is a great deal of agency to be exercised by the listener or reader to inhabit, engage with, and learn from those stories. This engagement can continue to grow and expand over time. For WSÁNEĆ law to work, as a decentralized system of law, there must be a collective contemplation of these issues. In this Part, I will flesh out some of my own engagement and consider some of the ways in which we might begin to recast our framework for considering the fuel spill.

The former Chief Justice of the British Columbia Court of Appeal, the Honourable Lance Finch, has said in regards to Indigenous law that we must “do our utmost to recognize and to relinquish our preconceptions of what objectively constitutes a ‘law’ or a ‘system of laws.’”[75] For me, these preconceptions also include assumptions about the nature and function, or the role, of law within another society or culture. Releasing these preconceptions includes the task (and benefit) of thinking through all the implications of centring a different framework. How do these stories shape us? How do we want to use them and to learn from them? What preconceptions about law do they cause us to question? A ground-up approach to the revitalization of WSÁNEĆ law means that many of the answers to these questions remain open-ended at the start—to be guided by the very stories and teachings we draw upon. Nonetheless, how we talk about and how we think about these issues has implications. In the following sections I will explore these implications primarily in relation to the notions of jurisdiction and remedy. In so doing, I first turn briefly to the work of Gordon Christie and the power of narrative to frame our thinking.

A. Narrative Primer: A Constraint on Imagination[76]

Gordon Christie, in his article “Indigeneity and Sovereignty in Canada’s Far North: The Arctic and Inuit Sovereignty”,[77] explores the narrative of “sovereignty” (and its associated limitations and impacts) as it applies to the “opening up” of the Arctic. Christie proposes the term “Indigeneity” as an alternative narrative in resistance to that of sovereignty.[78] He begins by “noting that certain linguistic elements do not simply instrumentally assist in the formation of plans and strategies, rather, they serve to define a range of possible plans and strategies.”[79] In application to the notion of sovereignty Christie notes:

Quietly residing in the background, [the term sovereignty] provides a certain kind of conceptual structure to be applied to the very acts of investigation, assessment, and planning. Not only are certain parties simply assumed to be vested with the proper authority in making decisions that will affect all those who live in the Arctic, but how these parties think and act are assumed to be the only vehicles or mechanisms by which legitimate actions are first imagined and then instantiated. Here forms of language and action outcomes are linked together in a way that seems to preclude the sensibility of other ways of thinking and acting.[80]

In short, “[n]arratives function, then, to both carry along commonalities of meaning and to police meaning. They are the carriers of meaning itself—the stories we tell define who we are and how we think of the world—while they also work to control what can be thought (and so what we can see as ‘possible’ action).”[81] It is from this backdrop that Christie contrasts an approach to resisting “the second wave of colonization by reacting within the web of meaning built up around this fundamental notion” of sovereignty, with one that challenges “this story [of sovereignty] as a story” from “up and beyond the level wherein sovereignty functions” to constrain what is possible.[82]

The sovereignty model carries with it a “legitimacy” or “rightfulness” in the sense that “the sovereign state is the legitimate source, ground, and site of decision making over territory.”[83] Residing behind that legitimacy is a web of meaning and presumed ways of thinking and acting.[84] Challenging this legitimacy from within can have benefits for Indigenous peoples,[85] but it also involves a “closing off of imagination” according to Christie.[86] That is, challenges are limited to arguments such as “the nation-state in question does not enjoy jurisdiction over this piece of land,” there is some reason to “temper the exercise of absolute power in relation to a particular subject matter,” or there is reason to “question the standing of the decision-making authority as constituting a sovereign entity.”[87] Central to Christie’s argument is the idea that “all these cognizable challenges are understandable only within the sovereignty model.”[88] That is, the “conceptual universe” and “sovereign authority of nation-states is the assumed backdrop” to any successes achieved within the sovereignty narrative.[89]

The sovereignty narrative manifests all around us, in various ways. Consider the SELEK̵TEL̵ spill and subsequent criminal charges and roundtable process. Acts resulting in criminal charges are considered to be offences against society, and are prosecuted directly by the Crown according to strict processes and standards that are deemed legitimate. Similarly, the roundtable process, while allowing for some flexibility, apportions liability and channels resources. It is not that the roundtable process—its assessment of fish numbers, remediation activities, and determination of financial allocations—is without benefit. In fact, from within the sovereignty model it is probably favourable to other processes. I am also not claiming that it is never worth engaging in roundtable type processes. Nonetheless, the backdrop to the roundtable process is Crown sovereignty and associated assumptions regarding what is legitimate and appropriate in terms of determining harms and remedies, as well as what processes and standards ultimately matter most. The BC Ministry of Environment and the Department of Fisheries and Oceans, for instance, are certainly present precisely because of Crown sovereignty and its staked authority over matters relating to environment and fisheries. Even the fact that the Ministry of Transportation and Infrastructure is not present says something about the assumed harms and remedies—that a provincial highway running through this location is not a problem in and of itself. In the following sections, I will indicate that the location of the highway may well constitute part of the harm within a WSÁNEĆ framework. The point I am making is that many of these assumptions run deep. I will consider this point in greater detail in relation to jurisdiction and remedy.

B. Distracted by Jurisdiction

No matter how we conceive of them, neighbouring legal traditions will inevitably have to bump up against or interact with one another in some fashion.[90] Contemplating the operation of WSÁNEĆ law within a colonial state might therefore push us toward immediate efforts (and likely tensions) to stake out and defend boundaries and jurisdiction. The SELEK̵TEL̵ example exemplifies these problems.

Several issues are easily perceptible in relation to the SELEK̵TEL̵ spill. First, the incident occurred at SELEK̵TEL̵, which is within WSÁNEĆ traditional territory but off reserve. While the Goldstream Indian Reserve, which is held in common by the Malahat, Pauquachin, Tsartlip, and Tsawout First Nations, is located in the area of Goldstream Park off Highway 1, the specific location of the crash itself was outside those lands. Second, a non-Indigenous person perpetrated the act leading to the contamination. Each of these points has several implications.

Our first question might be whether WSÁNEĆ law would apply to off-reserve lands but within traditional territory. Within the jurisdictional narrative, several perspectives can be imagined. One approach could be to resist the unjustifiable imposition of the common law and assert the operation of WSÁNEĆ systems of law across WSÁNEĆ traditional territory. This approach is greatly strengthened when coupled with the additional point that the site of the crash was within Douglas Treaty lands.[91] Nick Claxton has argued that the WSÁNEĆ right to “carry on our fisheries as formerly” under the Douglas Treaty protects not only the right to fish, but a system of laws and governance in relation to those fisheries.[92] A second approach may be grounded more directly in the notion of reconciliation, thereby involving a negotiated or bi-juridical approach to the spill. A third, narrower approach could be to limit the application of WSÁNEĆ law to lands already recognized as being under WSÁNEĆ jurisdiction (reserve land). However, Canadian constitutional law itself wrestles, at the federal-provincial division of powers level, over issues such as the one created by the SELEK̵TEL̵ spill, which occurred off such lands but created harm that manifested itself on those lands. What, then, is the jurisdictional solution? Even when narrowed down to three potential approaches, staking out jurisdiction becomes complex and entangled in a larger narrative.

The same is true of a second contentious question—should WSÁNEĆ law apply to non-Indigenous peoples in instances such as the SELEK̵TEL̵ spill? This consideration only becomes increasingly complicated when coupled with the earlier observation that the incident occurred off Aboriginal lands, but within traditional territory. Again, many approaches are possible. One may argue that WSÁNEĆ law should apply to non-Indigenous peoples if they pass through and act on Aboriginal lands. After all, if every individual is subject to laws of the jurisdiction they enter, why should it be any different with WSÁNEĆ law? Yet, I doubt that even such a straightforward argument as that would be met without resistance. Resistance to this argument may stem from several sources, including uncertainty regarding what WSÁNEĆ law would require.[93] In large part, this difficulty simply reflects the suppression of WSÁNEĆ laws throughout the processes of colonialism.

One final jurisdictional tension worth mentioning is that an element of the harm caused by the SELEK̵TEL̵ spill relates to fish and salmon spawning grounds. Fish are migratory and are thus important to several Indigenous groups and non-Indigenous people. Thus, even if WSÁNEĆ law were presumed to apply, the legal order would bump up against the interests and legal orders of neighbouring traditions. How would these legal orders interact?[94] Second, federal fisheries law has already clearly applied in this instance. How could these two legal orders function to come to a mutual solution, without simply assuming that federal law is paramount? These are a fraction of the complex political questions that might arise. However, I would like to ask a more foundational question—is this even where we should start?

My point is not to negate the importance of these questions. Each raises significant issues that require further thought and discussion. Ultimately, if WSÁNEĆ law is to gain momentum and again have increased applicability, then many of these scenarios will need to reach some form of working consent, even if subject to continued contestation.[95] My point is to illustrate the web we are entangled in through this type of inquiry into jurisdiction. More importantly, and specifically, I want to highlight that at stake in issues of jurisdiction and boundaries are conceptions of sovereignty and struggles for Indigenous governmental authority. The work of Gordon Christie raises concerns with respect to the inherent limitations of this type of thinking and dialogue.[96] If we step back from a discussion of jurisdiction to examine what the concept itself takes for granted, several issues become apparent. Jurisdiction may be exclusive, shared, or some combination thereof, but in each case reflects a notion of authority over a given area or issue.[97] For example, the Department of Fisheries and Oceans has jurisdiction over fish and oceans, even if some of that authority is checked in relation to Indigenous peoples. For Christie, this is an example of a “conceptual structure” that is “[q]uietly residing in the background” within the sovereignty narrative.[98] That is, this thinking and acting with authority over the environment and fish becomes assumed. Yet, if we look back to my discussion of WSÁNEĆ beliefs, this notion may be in many ways inconsistent with the WSÁNEĆ legal tradition.

Earlier in this article, I stressed a deep relationality between the WSÁNEĆ people, the Earth, and other elements of creation. Specifically, I emphasized that land is vested with much more being and agency within the WSÁNEĆ tradition. Several stories exemplified this point. For instance, the creation story of TETÁĆES, the islands within WSÁNEĆ territory, contains the following teaching:

After throwing the WSÁNEĆ People into the ocean, XÁLS turned to speak to the islands and said: “look after your relatives, the WSÁNEĆ People.” XÁLS then turned to the WSÁNEĆ People and said: “you will also look after your ‘Relatives of the Deep’.”[99]

It is evident that the WSÁNEĆ do not have an authority over the islands within their territory; rather, they each (the WSÁNEĆ and the TETÁĆES) have a series of mutual responsibilities in relation to one another. This level of being and agency can be extrapolated to other examples as well. SL̵EMEW (Grandfather Rain), with associated connections with water, was the first ancestor of the WSÁNEĆ. Salmon were also once people, and when the WSÁNEĆ say a prayer to the chum salmon asking them to feed us, we refer to them as EN ŚWOK̵E (our brothers and sisters). Each of these represents an emphasis on relationships. Ultimately, the notion of jurisdiction distracts from this focus on relationships.

The reference point for WSÁNEĆ law is identifying and repairing relationships in an encompassing way. Part of this emphasis may be restoring land to its proper use. Jurisdiction can work to compartmentalize, and therefore limit, the way in which we can think about and tend to these relationships. For example, I previously mentioned that the Ministry of Transportation and Infrastructure was not involved in the roundtable process. However, the Malahat Highway runs directly over and adjacent to SELEK̵TEL̵. On its own, this has a negative impact on the practice of bathing since it is supposed to be a private ceremony. Bathing is a central way in which we honour and maintain our relationship with SL̵EMEW (Grandfather Rain). In this way, the problematic placement of the highway affects not only the individual doing the bathing, but also more broadly the manner in which the WSÁNEĆ tend to their relationship with SL̵EMEW at this location. The WSÁNEĆ do bathe elsewhere as well, but the interrelated stories of SL̵EMEW, SELEK̵TEL̵̵, QENELEL̵ (Mount Finalyson), and QOLEW (Chum Salmon) established this particular place as an important bathing location.

It is likely that no consultation regarding the placement of the highway occurred during its initial development.[100] Aboriginal case law from the Supreme Court of Canada also seems to provide little incentive to address these types of past infringements.[101] This tendency points to a narrowness that plagues the Aboriginal law paradigm more generally. The location of the highway was certainly a factor in the harms created by the fuel spill. It also has an impact on the WSÁNEĆ relationship with bathing and with salmon more broadly. It is not my point to insist upon moving this particular highway, nor that a legitimate WSÁNEĆ legal response would require it. Rather, my point is that, viewed through the sovereignty lens, a change to the highway location would be a political non-starter given that the highway is the primary means of connecting the south and north parts of Vancouver Island. Again, we can see the structural aspects of colonialism that work to prioritize the legal, political, and economic framework that exists, and which subordinates the recognition of Indigenous law to that framework. My point is to indicate the way in which jurisdiction can compartmentalize the way in which we think of broader relationships. It is also to ask if WSÁNEĆ law can ever appropriately tend to these types of relationships while we remain unwilling to depart from these background structures in any meaningful way.

The questions relating to jurisdiction that opened this section illustrate how it may be possible to step beyond the dominant narrative in some ways, yet remain constrained in others. While exploring the “jurisdiction” of WSÁNEĆ law does step beyond the narrower narrative of “law” (i.e., strictly the common law), it may fail to step beyond other commonly held assumptions that underlie the sovereignty model more generally. This is another way the sovereignty model may function to “define a range of possible plans and strategies.”[102] That is, the jurisdiction questions above largely exemplify the limited options that are “understandable only within the sovereignty model.”[103] Although it is possible to have a broader or narrower understanding of jurisdiction, the conceptual structures that underlie function so that “our plans and strategies can reach out only [so] far.”[104]

The point I want to make is that by becoming too focused on who gets to do what, we may inadvertently lose sight of what our responsibilities under the WSÁNEĆ legal tradition actually entail (unconstrained by issues of jurisdiction). We restrict and limit the healthy functioning and the full potential and contribution of WSÁNEĆ law. If we insist too strongly that WSÁNEĆ law be understood within the same framework as Canadian law, we also maintain an imperial stance toward WSÁNEĆ law and allow the powers of hegemony to restrict the possibility for alternative conceptions and understandings. Such an approach will hinder any meaningful reconciliation of legal traditions. I do not deny that difficult dialogues between these legal traditions will have to occur. What I am arguing is that to begin this process we need to continue the hard work of understanding and strengthening WSÁNEĆ law on its own terms. The shift in thinking from authority over to responsibilities in relation to may be subtle, but it has significant implications for our starting point. It was through careful attention to WSÁNEĆ stories that I came to question these underlying assumptions in the notion of jurisdiction. The same applies to dominant expectations regarding remedy.

C. Beyond Remedy

I have already emphasized that the decentralized nature of WSÁNEĆ law makes the process of coming to a remedy quite different from Canadian law. In this section, I wish to make a broader point about thinking only in terms of remedy. In looking to WSÁNEĆ law, we are not looking only to a separate system of rules, but a distinct way of organizing ourselves in relation to each other and to the Earth.[105] We restrict this objective, and the potential contribution of WSÁNEĆ law, if we simply look for a narrow application of remedy. By “remedy” I mean the application of a legal rule to reach a solution in a fixed instance. Granted, the concept of remedy can be broad. In Western approaches it might include restitution, specific performance, and damage for lost use among others. Perhaps there are even roughly analogous notions within WSÁNEĆ law that will be important to think through. My point, however—as made in relation to jurisdiction—is that we need to first take a step back. In taking this step back we might again ask what is the “conceptual structure” that is “[q]uietly residing in the background” with the notion of remedy?[106]

The answer is simple, though perhaps easily overlooked. A remedy is the response we choose in application to the harm we are seeking to address. Given the different framework for WSÁNEĆ law, what if we characterize the harm, and therefore the problems to be addressed, very differently? We can see that understanding the nature of the harm is foundational to any application or understanding of remedy. If we begin with a focus on remedy we are in many ways looking only at a separate system of rules, as opposed to a much broader normative framework. Again, the shift in focus may be subtle but significant. Similar to jurisdiction, it may also be easy to become distracted and lose sight of underlying assumptions regarding the harm, and instead jump to remedy.

In fact, in setting out to think about the fuel spill at SELEK̵TEL̵ I assumed a series of questions about WSÁNEĆ environmental and fisheries law that could be asked and answered. What are the sources of WSÁNEĆ law as they relate to fisheries and the environment? What are the substantive and procedural elements of WSÁNEĆ fisheries and environmental law? What are the remedies and recourses for when fisheries and environmental laws are broken? Who are the decision makers relating to fisheries and environmental issues, and in what contexts? And, given the migratory nature of fish, what are the “international” elements of WSÁNEĆ law in this regard?

I do not dispute that distinct elements of WSÁNEĆ law may exist, nor that these types of inquiries are without merit. However, engaging with the stories at SELEK̵TEL̵ lead me to question whether I had found the right starting point. Beginning by embracing and grounding a different set of understandings about proper relationships, and ways of maintaining those relationships, provides a very different foundation. What assumptions does this cause us to question? We need not become paralyzed by this quest, but use it as best we can to assess how those relationships have been disturbed by the issue at hand, and thereby more fully determine the nature of the harm itself. Only with an adequate understanding of the nature of the harm are we positioned to think in terms of a solution that best fulfills our responsibilities and promotes our vision of proper relationships. In short, as opposed to remedies, we should first be thinking in terms of harms and processes because those have serious implications for what solutions are ultimately most appropriate.

Stepping back to foundational understandings of harm may mean that we need to consider far-reaching remedies to address that harm properly. As began to become evident in the section on jurisdiction, WSÁNEĆ law does not always apply as narrowly to a fixed and given instance as normally expected under the common law. The common law determines relevance based on notions of causality that are informed by a particular set of broader normative understandings. Anything outside those understandings of relevance and causality need not be considered. The location of the highway was one such example. However, WSÁNEĆ law will clearly bring a different set of normative understandings, and thus interpretations of “relevance” and “causality” in a broad sense. This normative framework may result in different scopes of inquiry and appropriate action. We should not shy away from this implication. If we begin by assuming that the scope of remedies (albeit potentially different remedies) in the application of WSÁNEĆ law will always (and should always) be akin to those of the common law, we will necessarily limit the functioning and potential contribution of the WSÁNEĆ legal tradition from the outset. In what follows I address what the scope of the inquiry might be according to the assumptions, principles, and categories of WSÁNEĆ law.

Several Indigenous law scholars understand a primary objective of Indigenous legal orders as seeking to maintain balance and harmony.[107] This balance and harmony relates not only between one another, but also between the physical and metaphysical (people and the cosmos) and the physical and ecological (people and the land).[108] This understanding creates a broad web of mutual and legal relationships.[109]

I have provided several different WSÁNEĆ stories about SELEK̵TEL̵ which can give us a foundation to begin reconceptualizing the harm caused by the fuel spill. I have also alluded to some potential characterizations of the harm throughout, though a more focused contemplation here will be helpful. In the previous section I referred to the location of the highway itself being an issue. Since bathing is meant to be a private ceremony, one part of this harm is that it encroaches on an important bathing location where the WSÁNEĆ tend to their relationship with SL̵EMEW. However, the location and use of the highway causes another concern in regard to bathing. Heavy use of the highway undoubtedly causes a significant amount of gasoline and oil to accumulate on the road through regular use. When it rains, this contamination then runs off into the waters of SELEK̵TEL̵. Therefore, the regular use of the highway results in some degree of harm to the waters as well. While the location of the highway is literally cemented at this point, it does have an impact on the practice of bathing in both these ways.

The fuel spill itself, of course, has had a significant impact on the waters of SELEK̵TEL̵. This ecological damage certainly has a direct impact on bathing and Grandfather Rain. The difficulty with oil and gas spills, such as the one described at the beginning of this article, is that they durably soil Grandfather Rain (our ancestor), preventing the bathing ceremony that is intended to cleanse our mind, body, and spirit. While perhaps fewer WSÁNEĆ people use the stream today for bathing than once did, it is still a practice that is taught and a location used for that purpose. For instance, the L̵ÁU,WELNEW tribal school takes its high school students to SELEK̵TEL̵ to provide them with these teachings and to learn to be respectful of their sexuality.[110] The practice of bathing also shapes and reinforces a broader relationality with WSÁNEĆ territory, water, our ancestors (Grandfather Rain), and more. Such teachings and practices put into perspective a much broader series of relationships. While addressing these harms will certainly involve remediation of the polluted water, a response will need to take the broader context of these relationships seriously as well. How can we restore the purity of the water (Grandfather Rain), beyond the physical properties of the water? That is, if a person had been raped, dishonoured, or physically or spiritually violated, it would not be enough only to clean them up or repair their bodily injury. More would be required to move toward repairing a deep harm caused to that person. Additional healing and greater consideration would be required which might include, but is not limited to, ceremonial attention. Similarly, if we take seriously the notion that we are responsible for our relationship with Grandfather Rain, what steps do we need to consider to ensure that these types of harms do not repeat and continue to come about? These are some of the deeper implications of seeing the land as a relative.

An additional harm caused by the spill at SELEK̵TEL̵ relates to the ecosystem and the salmon that spawn in the river each year. An assessment of the harm done to salmon numbers was a central inquiry of the roundtable process. Primary attention seems to have been given to determining casualty numbers and replacement numbers. Addressing the harm to salmon would also be central to a WSÁNEĆ legal response. The chum salmon (QOLEW) is the most abundant salmon spawning in the river, and is the last salmon fished in the year.[111] Admittedly, the QOLEW was historically not as prized as the sockeye salmon.[112] However, this point in itself may in part relate back to the WSÁNEĆ legal order and the creation story of the chum salmon.[113] The chum salmon are not, however, the only salmon that spawns at SELEK̵TEL̵. The spring and coho salmon do as well, though in far lower numbers. Steelhead and cutthroat trout also live in the river. Today, each of these species is not fished as diligently by the WSÁNEĆ as the chum salmon. I have been told that even in the past the WSÁNEĆ did not actively fish after the spring salmon in the river; they were for the most part left alone to spawn. Rather, the spring salmon were fished in the bay prior to spawning when they were more difficult to catch.[114] The reason for this fishing practice is the lower numbers of spring salmon at SELEK̵TEL̵. The WSÁNEĆ rely on salmon for our sustenance, but this reliance cannot be at the expense of the salmon. This respect of the salmon reflects a mutual relationship, similar to that explained earlier in relation to islands.

The starting point for understanding the harm done to salmon will be quite different. The salmon, like the rain and the islands, were also once people.[115] The name for the chum salmon is QOLEW. However, its prayer name, when we are asking the salmon to feed us, is EN ŚWOK̵E (our brothers and sisters). This understanding again discloses a relationality that does not view salmon as a resource, but as an ancestor intimately connected to WSÁNEĆ cosmology and way of life. Therefore, while ensuring that the number of salmon in the river remains at an adequate number, simply replacing the fish may not be enough. Again, how can we repair this relationship at a broader level? How can we guard against continued harms to this relationship? Do we need to limit the number or type of trucks that travel this route? Do we need to be more cautious at certain times of the year? My point is that there is a web of relationships that the WSÁNEĆ would give serious consideration to when building a framework for addressing this type of harm.

The issue is not only one between the WSÁNEĆ and other Canadians. The agency and being given to water, salmon, and other non-human beings means that we need to consider all of them as we would our human relatives in addressing harm they suffer. Identifying the harm resulting from the SELEK̵TEL̵ spill quickly expands to broader normative understandings and conceptions of proper relationships. A WSÁNEĆ legal response (remedy) would need to reflect these larger notions of proper relationships. However, the disconnection between Indigenous and non-Indigenous understandings of the nature of the harm that occurred can create a tension in what the scope of an appropriate remedy should be. WSÁNEĆ law may need to apply more flexibly and broadly than is typical of Canadian law. It may seem that this flexibility necessarily means a lesser degree of certainty for WSÁNEĆ law. That is, the absence of clear, fixed, and hierarchical decision-making pathways, which make the application of WSÁNEĆ law more fluid and flexible, may in that sense make WSÁNEĆ law seem uncertain to people trained in the common law. However, perhaps we overestimate how certain Canadian law really is. The reason Canadian law has courts that weigh arguments on both sides, and decisions that depend on a particular set of facts and scenarios, is that the application of Canadian law on the ground is often uncertain. Similarly, Canadian legal principles including “the reasonable person” or “the best interests of the child” are broad. These principles do, however, still provide a basis for Canadian tort and family law. The encompassing relationships in WSÁNEĆ law provide its own distinctive foundation.

Ultimately, tensions between these two different frameworks need not be irreconcilable, but deep and open engagement is required. Specific instances (or remedies) on their own can move us either closer or farther away from our perceptions of proper relationships. Yet, in the end, what is at stake is much more. The real challenge (and advantage) in enabling a full revitalization of WSÁNEĆ law involves negotiating the much broader relational issues involved (the different ways we choose to interact with each other and the Earth). The larger benefit is building upon WSÁNEĆ thought to create systemic change regarding how we live in this world.

D. Resurging Our Relationships

At its most fundamental, law is about maintaining and promoting proper relationships. The current relationship between WSÁNEĆ law and Canadian law is not a healthy one. As opposed to having an open dialogue between frameworks, there is a hesitancy to question underlying assumptions and promote alternative perspectives and approaches. Balancing this relationship will be difficult, given colonial history and how entrenched the current imperial relationship is. Resurging WSÁNEĆ law to the point where we turn to it naturally and it functions healthily will also require work. WSÁNEĆ law operates in a much different way than Canadian law. Thinking through the different foundation for WSÁNEĆ law is challenging, but it is an important component to moving toward its broader application. Principally, it involves rethinking our broader relationships and responsibilities, and allowing these understandings to grow and expand as we turn to and strengthen WSÁNEĆ narratives. I have, in a very preliminary way, opened the door to the narrative of WSÁNEĆ law, though there is much left to explore and to do.

Conclusion: WSÁNEĆ Laws Emerging Once Again

In the beginning XÁLS (Our Creator) taught the Saanich People how to take care of this land.

For many years, the Saanich remembered XÁLS[’] words. They were happy and had plenty of food.

But as many years passed, some people broke XÁLS[’] words and forgot his teachings.

XÁLS became unhappy and told the people that there would be a flood over the land. They were to prepare.

They prepared a long rope of cedar bark. They gathered food and possessions. The tide water began to rise. The people packed their belongings into their canoes.

Some people did not heed XÁLS[’] teachings. They were not prepared and were washed away. Their canoes were destroyed.

The water rose higher and higher.

The people paddled to the highest mountain nearby. The trees were still above the water.

They tied themselves to an arbutus tree on top of the mountain.

Soon the tops of the trees were covered with water. They were afraid and prayed to survive the great flood. They asked XÁLS to take pity on them.

After many days, a raven came and landed on the bow of the canoe. He was carrying a stick and was talking to the people. The raven had brought the good news.

Suddenly a mountain began to emerge in the distance. One of the men said “NI QENNET TŦE WSÁNEĆ” (“Look at what is emerging”), as he pointed to the mountain emerging in the distance.

Before they left the mountain, they gathered around the huge coil of cedar rope and gave thanks. They said from now on this mountain will be called L̵ÁU,WELNEW (Place of refuge, escape, healing). They further said we will be called the WSÁNEĆ (The emerging people).

XÁLS heard their prayers. XÁLS said he would not punish the people by flood again.[116]