Indigenous Environmental Justice: Comparing the United States and Canada’s Legal Frameworks for Endangered Species Conservation

ABSTRACT

Canada and the United States are both committed to the protection of endangered species. This article examines how the legal frameworks created around the US Endangered Species Act (ESA) and the Canadian Species at Risk Act (SARA) intersect with Indigenous environmental justice (EJ). Specifically, the distribution of benefits and burdens is examined since critical habitat designations can limit activity on Native American and First Nation tribal lands. Legal documents and recent court cases also give insight into Indigenous inclusion and recognition in conservation approaches in North America. Overall, it is argued that Canada’s approach comes closer to EJ, but neither legal framework meets the criterion of genuine EJ for Native Americans and First Nations.

KEYWORDS:

• Environmental justice
• Indigenous peoples
• conservation
• endangered species
• Canada
• United States
• Species at Risk Act
• Endangered species Act

Acknowledgments

A draft of this manuscript was presented at the Association of Canadian Studies in the United States Biennial Conference in 2015. A revised manuscript was presented at the Midwest Political Science Association Annual Conference in 2016. We would like to thank the discussants, panel members, and audience who provided feedback. We would also like to thank the peer reviewers who also provided constructive feedback and improved this manuscript.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. Reese and Jacob (2015) also argue that recognition can extend to future generations (intergenerational justice), economically disadvantaged nations (global justice) as well as nonhuman life and nature (ecological justice). These stakeholders cannot directly participate so their needs must be recognized by policymakers to achieve EJ.

2. Hawaiian Natives are also excluded from this article. While they are not normally considered “Native Americans,” they are Indigenous peoples. Given their unique location and history, their relationship to conservation should be explored in detail in other/future research.

3. Inuit, who also have land claim agreements (modern treaties), are excluded from examination here because their situation and relationship to the federal government is considerably different than the First Nations (and Native Americans). Indeed, there is a wide body of scholarly work examining conservation in the Northern territories (e.g., see: Berkes, Colding, and Folke 2000, 2007; Dowsley and Wenzel 2008). The Metis do not have reserve land, except for the province of Alberta. Thus, their interaction with conservation policy is also different than the First Nations (and Native American).

Additional information

Notes on contributors

Andrea Olive

Andrea Olive is an assistant professor of political science and geography at the University of Toronto Mississauga. She is the author of two books on environmental policy: Land, Stewardship, and Legitimacy and The Canadian Environment in Political Context. Her areas of research revolve around conservation of wildlife as well as the politics of private land.

Andrew Rabe

Andrew Rabe is an Independent Scholar. He is a recent graduate of Beloit College, where he earned a bachelor’s degree in political science and philosophy. His primary research interest is environmental law. He plans to pursue a joint PhD/law program in the future.