B.C. formally recognizes Haida Nation’s Aboriginal title to Haida Gwaii

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In a ceremony beneath a totem pole representing unity, the B.C. government formally accepted that the Haida Nation has Aboriginal title to all one million hectares of the islands of Haida Gwaii, west of British Columbia’s north coast.

The unprecedented agreement – which has been decades in the making – was reached outside of the courts or the B.C. treaty process.

“It’s an acknowledgment of past denials and harms, and fully embracing the truth that we all know that Haida Gwaii is Haida land, always has been and always will be,” Haida Nation president Gaagwiis Jason Alsop said Sunday, before signing the pact with B.C. Premier David Eby.

The agreement includes a commitment from the Haida to leave privately owned lands unchanged and under B.C. authority. Governance over the existing Crown land tenures and protected areas will now be negotiated in a process that must reconcile Haida and provincial law.

Mr. Eby called the agreement historic, and said it offers a new model for resolving Aboriginal land claims. “This agreement won’t only raise all boats here on Haida Gwaii – increase opportunity and prosperity for the Haida people and for the whole community and for the whole province – but it will also be an example and another way for Nations, not just in British Columbia, but right across Canada, to have their title recognized.”

The provincial government says the outcome was inevitable – it faced a court challenge from the Haida that it believes it was destined to lose, because the Haida have a clear title case with no overlapping claims with other First Nations. In 2004, the Supreme Court of Canada confirmed that the Haida’s pending title claim is strong but warned that the forests are being depleted through logging while that case makes its way through the legal system.

The province was also guided by a 1997 Supreme Court of Canada ruling known as Delgamuukw that confirmed Aboriginal title – the right to possession of ancestral lands – exists. In that judgment, the high court said the Crown has a duty to resolve land title claims through negotiation, not litigation.

“British Columbia – I’m very proud of this – is the first jurisdiction to have been able to do what the courts have so long asked us to do,” Murray Rankin, the province’s Minister of Indigenous Relations and Reconciliation, said in an interview prior to the signing ceremony in Skidegate. “And surely we have the ability to get it right when our intentions are so clear.”

The agreement, which has been approved by the Haida Nation and will be enshrined in provincial legislation, says that Aboriginal title will not affect anyone’s private property, nor local government jurisdiction and bylaws on Haida Gwaii. It also says public services including highways, airports, ferry terminals, health care and schools will not be affected. Residents will continue to receive municipal services and pay property taxes in the same way they do today.

What does change is that, after decades in court, the Haida no longer have to prove that their Aboriginal title exists on land. The court case, which also claims title to the surrounding air space and the marine environment – including Dixon Entrance, half of the Hecate Straits and halfway to Vancouver Island – will proceed against the federal government. The rest will largely evolve through a negotiation process with the province that is expected to take two years.

Mr. Rankin plans to introduce legislation this month that he hopes will be in force later this spring. Once the law is passed, roughly 500,000 hectares of Crown land on Haida Gwaii will be returned to the Haida.

The Haida maintain their hereditary clan system, but governance is delegated to the Council of the Haida Nation, which has been in place for 50 years. Haida traditional law says they have a collective responsibility to caretake Haida Gwaii, and to maintain a peaceful, sustainable co-existence between people, the land and waters and all beings.

To the Haida people who make up 45 per cent of the population on this archipelago of more than 200 islands, the agreement means returning to the way things were before the colonial construct of land title arrived in their territory, and the destructive extraction of their natural resources began.

In an earlier interview, Gaagwiis said the province only imposed its control on Haida Gwaii for a relatively short time in Haida history – about 160 years.

“Now we can look into the long future and prepare for the challenges we may face in the coming years, when it comes to climate change. We’ll be governing with our people on the forefront, because they’ll take the lead on everything that happens in our home.”

Almost half of the land base of Haida Gwaii is designated protected areas – parks, conservancies and ecological reserves. The agreement says those protected areas “will be managed primarily for their natural function, culture and appreciation,” but the manner in which that is done will be the first issue to be dealt with at the negotiating table.

While the courts have set out some definitions of Aboriginal title, just what it will look like in this case remains unclear at this time. “It will mean what we negotiate it to mean, and the details will be in the agreement and will be nailed down over time,” Mr. Rankin said.

The Haida are still suing the province for damages, including the loss of almost 16,000 hectares to private ownership on Haida Gwaii. “We’re seeking a declaration of damages and compensation for the infringement on our title,” the Haida leader said, “which would include compensation for the loss of access and use of those private lands.”

A leading expert in Indigenous law in Canada, Thomas Isaac of Cassels Brock & Blackwell LLP, said the agreement creates more confusion for landowners on Haida Gwaii than the lingering uncertainty of the pending title case.

“The Crown is recognizing Aboriginal title over every square inch of Haida Gwaii. What we know from Supreme Court of Canada case law is that Aboriginal title is the exclusive right to land. At the same time, fee simple, privately owned land is the exclusive right to land. You can’t have two exclusive rights to a single part of land,” he said in an interview. “The agreement is poorly drafted. This is another rushed job at reconciliation, with little thought given to the long-term effects. It’s reckless.”

Geoff Plant, a former B.C. attorney-general who led treaty negotiations for the then-BC Liberal government, disagreed. He said the two types of land title don’t need to co-exist in this circumstance, because the agreement clearly states that fee simple ownership is protected. “This agreement takes that question off the table. And that is a singular benefit of this agreement,” he said.

The alternative to a negotiated settlement, Mr. Plant noted, would have been to wait for the courts to impose a settlement. “I’d much rather be in a situation where the parties have control over the outcome, rather than we simply say we cannot do anything until we have a complete answer from the courts to every single question. That way, it seems to me, paralysis lies.”