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Ecological Law Case Studies Series: St. Lawrence Seaway

By Gabriel D'Astous & Larissa Parker


Intro


As fires rage on the West Coast and heat waves suffocate the East Coast, we know that another world is possible. Yet, this possibility can only be realized through systemic change. This will require social, economic, and legal transformation - something the emerging field of ‘ecological law’ seeks to do.


Over the coming months, the Leadership for the Ecozoic (L4E) Law & Governance Research Group will bring you a series of blogs that aim to provide a glimpse of this alternate world shaped by the principles of ecological law. Each blog will explore the current research that L4E is conducting with 5 project teams on case studies across the globe. These include wildlife management in Vermont, the impact of the St. Lawrence Seaway on Kahnawà:ke in Canada, the environmental degradation of the River Ethiope in Ethiopia, the impact of High Seas law on marine biodiversity and the proposed Anatópolis mine in Brazil. Each case study will highlight the laws that allowed various development or policy projects around the globe and offer a reimagination of these projects in an ecological law framework.


Our first case study relates to the construction of the St. Lawrence Seaway and its impact on Kahnawà:ke in Canada. It explores the need for redress and healing to communities who suffer from past (and ongoing) environmental degradation.





What is ecological law?


For those who are not familiar with ecological law, we will provide a brief overview of its fundamental principles. If you wish to learn a little more about ecological law, you can read the first blog in this series.


As expressed in the ELGA Oslo Manifesto, ecological law “is based on ecocentrism, holism, and intra-/intergenerational and interspecies justice.” It is about refocusing our legal systems so that they no longer prioritizes the interests of humans over the integrity and health of ecosystems or the interests of our non-human neighbours. Planetary boundaries, such as the amount of GHGs humans can safely emit, would provide clear limits on human activity.[1] Intra-/intergenerational justice would also require that our laws impose equity between current governments in the Global North and future generations, Indigenous and racialized communities as well as peoples in the Global South. Finally, ecological law would incorporate interspecies equity into our legal systems; ensuring that the lives, needs and interests of other beings are considered along with those of humans. This recognizes that we share the Earth with a plethora of other species who have just as much of a right to live and strive here as we do.


The St. Lawrence Seaway Case Study


Our case study is examining the impacts of the St. Lawrence Seaway on Kahnawà:ke. In partnership with the Kanien’kehà:ka Onkwawén:na Raotitióhkwa Language and Cultural Center, and the Kahnawà:ke Environment Protection Office (who is implementing ongoing ecological restoration efforts), our project aims to develop a framework to understand ecological restoration from an ecological law perspective. In order to do so, we will consider the environmental and cultural harm associated with the Seaway and the Indigenous leadership in developing legal frameworks for restoring and managing the health of rivers and healing socio-cultural harms associated with environmental degradation.


The History of the Seaway


The St. Lawrence Seaway was built in the 1950s by Canada and the United States after decades of negotiations. It is composed of a series of channels, dams and locks between Montreal and Lake Erie that generate hydroelectricity and facilitate access to the Great Lakes for international trade. As a result of its construction, tens of thousands of acres of land were flooded, displacing nearly 10,000 people in Ontario, Quebec and New York.[2] While numerous communities and ecosystems were disrupted by the Seaway, our case study will focus on the impact it had on the Kanien’kehá:ka community of Kahnawà:ke which is located on the south shore of Tio’tià:ke, Quebec.


For Kahnawà:ke, the Seaway is a recent story of expropriation by the federal government in a long history of theft. This occurred despite Aboriginal title being recognized and protected in the Royal Proclamation of 1763, and the Quebec Act of 1774. In 1954, over 1,300 acres of Kahnawà:ke’s land located in the residential and historic centre of the community was expropriated for the construction of the St. Lawrence Seaway. Once the construction of the Laprairie Dike was completed, the community was entirely cut off from the river.[3]




The construction also had significant environmental impacts on ecosystems surrounding Kahnawà:ke. It radically changed the landscape and waterscape by flooding large swaths of land creating a new seaway channel where there were once rapids. This resulted in the erasure of the natural coastline, swamps and islands. Many plants and animals have since disappeared from the area. The increased maritime traffic has also increased the levels of toxins in the water, and hence in the fish that are still there. The Seaway had numerous other impacts on the ecosystem and community that we hope to further explore through interviews with community members.


Since the construction of the Seaway, the federal government has undertaken two forms of redress. First, they have provided some compensation for the losses the community and ecosystems have incurred. In particular, after the expropriation of lands, the federal government gave residents compensation according to painfully rigid (and insufficient) formulas that were simply based on the amount of land acres lost; no consideration was given to the cultural harms resulting from these expropriations.


More recently, in 2020, the Kahnawake Environment Protection Office received funds to partially cover the $2 million cost of their restoration projects in the Bay and on the Island. The project aims to: “improve water flow in the bay and diversify wildlife habitat, naturalize the shoreline to improve the landscape for wildlife and community members, and protect and enhance existing natural wetlands.”




Ecological Law and the St. Lawrence Seaway


The St. Lawrence Seaway provides an interesting case study on the transition towards ecological law. If society manages to pivot away from our anthropocentric legal systems towards an ecological framework, we must recognize that ecological law will not have the benefit of starting with a blank slate. Massive built infrastructure projects, such as the St. Lawrence Seaway, that destroyed and continue to disturb ecosystems will not disappear overnight. Consequently, ecological law will have to provide a framework through which healing and reparations are brought to these ecosystems while this infrastructure continues to exist.


This case study is also unique in that the Seaway was part of the nation-building project in Canada done at the expense of Indigenous land and sovereignty. This case study seeks to underline the cultural harms and the necessary cultural components of healing and redress. Further, as the Kahnawake Environment Protection Office spearheads the current restoration efforts in Kahnawà:ke, we hope to underscore the importance of Indigenous agency, leadership and knowledge in the healing and restoration process.


Thus, by conducting interviews in Kahnawà:ke with our partners, our project seeks to answer a simple question: How should the law respond to environmental, social, and cultural harm that has occurred and continues to disrupt communities?



One of the many ships that pass through the seaway by Kahnawake every day. (Ka’nhehsí:io Deer/CBC)

In answering this question, we hope to incorporate both forward and backward looking principles of justice. Backward looking justice is concerned with settling past grievances and providing reparations, while forward aspects seek to improve relationships and trust among those involved in the future - to prevent the harm from happening again. In combining these ideas, our project aims to explore a new feature in ecological law - one grounded in healing.[4] It would be a principle that provides both redress for past harm, while also transforming, and ultimately preventing the root causes of these harms in the future.


In order to properly formulate this healing principle, through interviews with community members, we will seek to understand the types of cultural, social, and environmental harm the St. Lawrence Seaway has caused in Kahnawà:ke. Further, the Kahnawà:ke Environment Protection Office has been leading an amazing ecological restoration project for the past several years. We wish to understand the scope of the restoration, how it offers both ecological and cultural healing and what role Indigenous knowledge and laws have played in its configuration and implementation.

Finally, we will deconstruct how the harm is created/sustained, as well as how redress is legally construed in settler Canada. Foremost, there is a plethora of federal and provincial laws that permitted and legitimized the engineering of the waterfront at Kahnawà:ke, and undermined the community’s self-determination. Although there are specific laws that enabled the construction of the Seaway and can be challenged (like the Indian Act), there is a whole system of laws working together that led to it too, including, for example, property rights, investment law, international trade, contract law. Part of our deconstruction work here aims to show that all these areas of law contributed to the construction of the seaway and are potentially involved in redress.


Our case study is still underway and the bulk of community engagement with Kahnawà:ke residents is still to come. This project will first and foremost be shaped by our engagement with our partners and the community. Therefore, the interviews we will conduct will guide and affect our conclusions in regards to the characterization of the harm flowing from the St. Lawrence Seaway as well as the redress owed to the community and the ecosystem. We also expect these interviews to put into sharper focus the colonial laws that must be deconstructed and reconstructed through an ecological lens. Keep an eye on the L4E blog as well as other published work for future posts about our case study as it progresses.


Further Readings on Ecological Law:


Kirsten Anker et al, eds. From Environmental to Ecological Law (Routledge, 2020).

Carla Sbert, The Lens of Ecological Law: A look at mining (Edward Elgar Publishing, 2020).

Klaus Bosselmann & Prue Taylor, Ecological Approaches to Environmental Law (Edward Elgar Publishing, 2017).

Geoffrey Garver, Ecological Law and the Planetary Crisis A Legal Guide for Harmony on Earth (1st ed, Routledge, 2021).

From Environmental to Ecological Law: The future lies ahead” (2019) 43:3 Vt L Rev 1.




[1] Geoffrey Garver, “The rule of ecological law: The legal complement to degrowth economics” (2013) 5:1 Sustainability 316.

[2] Daniel MacFarlane, Negotiating a River: Canada, the US, and the Creation of the St. Lawrence Seaway, (Vancouver: UBC Press, 2014).

[3] Lily Ieroniawá:kon Deer ““Plus Ten Percent for Forcible Taking:”1 Construction of the St. Lawrence Seaway as Environmental Racism on Kahnawà:ke” (2017) 5 HPS 13.

[4] See Ruti Teitel, Transitional Justice (New York: Oxford University Press, 2000). See also applications in Henry Shue, “Responsible for what? Carbon producer CO 2 contributions and the energy transition” (2017) 144:4 Climatic Change 591; Daniel Butt, “The Polluter Pays? Backward-Looking Principles of Intergenerational Justice and the Environment” (2013) in Spheres of Global Justice (Dordrecht: Springer 2013) 757.

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