More thoughts on the Haida agreement

A few weeks ago I wrote a blogpost in which I expressed my support for the work being done by the province and the Haida to negotiate an agreement to recognize aboriginal title on Haida Gwaii.

In the intervening weeks, the agreement has been finalized and more recently the government has introduced legislation (Bill 25) which provides that the government “recognizes that the Haida Nation has aboriginal title within the meaning of section 35 of the Constitution Act, 1982, to land on Haida Gwaii.” 

I continue to support this initiative. In my view, everyone who supports the objective of reconciliation of indigenous and non-indigenous claims and rights should welcome this important development. 

A chapter of our history long characterized by uncertainty and injustice – the uncertainty created by unresolved Haida claims and the injustice of the province’s failure to recognize Haida rights – will at long last be replaced by certainty and justice. 

I’m not going to repeat myself here. What I said in my previous post about the draft agreement remains true. But I think it might be worth taking the time to address three concerns that have been raised about this initiative. 

Private property rights

First, it has been said by some that this agreement threatens private property rights.

In support of this critique it is pointed out that it is difficult to reconcile fee simple property rights with aboriginal title. Generally, speaking, fee simple ownership of property entitles the owner to the full beneficial use of the land. With some exclusions that do not matter for the purpose of this analysis, the same can be said of aboriginal title. As the Supreme Court of Canada said in the 2014 Tsilhqot’in decision (at para. 73) “Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land: and the right to pro-actively use and manage the land.”

As a matter of law, the question of whether and how aboriginal title and fee simple title can co-exist in respect of the same property has not yet been judicially decided. It is a fair question to ask how these rights can live together in the same place. But that question does not arise in respect of the Haida aboriginal title recognition agreement. It does not arise because the province and the Haida have expressly provided that the recognition of Haida aboriginal title does not affect fee simple property interests on Haida Gwaii. Here is the language from the agreement:

“1.2 For greater certainty, nothing in this Agreement derogates from:

a.    Fee Simple Interests on Haida Gwaii.

…

4.4 The Haida Nation consents to and will honour Fee Simple Interests, including those held by Haida citizens.

4.5 The Haida Nation consents to Fee Simple Interests on Haida Gwaii continuing under British Columbia jurisdiction.

4.6 For greater certainty, this Agreement and the recognition of Haida Aboriginal title do not alter or derogate from those Fee Simple Interests or any rights or interests associated with them.

The terms Fee Simple Interests and Fee Simple Lands are defined in the agreement to mean exactly what you might think they mean, namely what we think of as land ownership.

For good measure, Bill 25 expressly provides that fee simple rights to land on Haida Gwaii are “confirmed and continued.”

It would be difficult to be any clearer than this. You don’t need to be a lawyer to read plain English. To argue that this agreement somehow threatens fee simple property rights on Haida Gwaii is to misread the agreement. To tell others that this agreement threatens fee simple property rights on Haida Gwaii is to mislead them. 

Is this agreement a worrying precedent?

The agreement is unprecedented. It’s not a treaty, and it’s not a court decision. It is the first time the province has recognized aboriginal title in this way.

But the circumstances are also unique. The Haida have been pursuing a court case claiming aboriginal title to all of Haida Gwaii for over twenty years and the trial of the case is approaching. The claim in the court case is for aboriginal title and jurisdiction over all of Haida Gwaii – including private land, municipal governments and public infrastructure. 

Twenty years ago, the Supreme Court of Canada held that the Haida had a good claim of aboriginal title to all of Haida Gwaii. 

And indeed, as I’ve said before, if you were trying to find a place in British Columbia where a claim of aboriginal title across the whole landscape would be strong, Haida Gwaii would be an obvious place to look. There are no overlapping claims by other First Nations. Territorial land boundaries are clearly defined by the shoreline of a multi-island archipelago. Evidence of ancient occupation is found throughout the islands. The Haida have vigorously and consistently asserted their title by protests and blockades against governments, logging companies and others. And a point that is not often made: there is very little privately owned land on Haida Gwaii (by one account, only 2.2% of the land of Haida Gwaii is privately owned).

Faced with the prospect of a long, expensive and divisive trial, and the possibility – even the likelihood – that the Haida would win the case, the parties have instead chosen to negotiate. The result is an agreement that is uniquely tailored for the unique circumstances of the case.

That is not to say that this tool of provincial recognition could never be used elsewhere. There are no one size fits all solutions for the challenge of reconciling aboriginal and non-aboriginal claims and rights. In some parts of the province the modern-day treaty process has led to successful outcomes. In other places, other approaches have been used to achieve equitable and effective arrangements.  But if a situation arises when something like the Haida agreement makes sense, it will undoubtedly be used. And we should welcome that.

Unanswered questions

I’ve read a number of analyses – especially by some of Vancouver’s corporate law firms – which raise what they say are troublesome questions about this initiative. I’m not going to suggest that there are no good questions here. This is a new approach to reconciliation and so there isn’t a lot of judicial guidance directly on point. More importantly, the agreement itself does not attempt to answer all questions about all aspects of the future relationship between the Haida and the province. What the agreement does do is commit the parties to a process for the consideration, negotiation and resolution of these issues over time.

Unfortunately, the analyses I’ve read are so hostile to this initiative that they do not answer the really important question: if not this, then what? 

The answer to that question is pretty obvious: if not this agreement, then there will a trial.

Litigation is not a tool for creative problem solving. It’s a fight. It’s not about getting along, it’s about arguing and disagreeing, and it's about letting someone else, a judge, decide who wins the fight.

As the courts of Canada have said many times, the pathway to reconciliation is not litigation, but negotiation. In this negotiation the Haida and the Province have done what often happens in negotiation. There’s been give and take and compromise. Some issues have been resolved while others have been left for future negotiation. The result in my view is far better than leaving all these issues to the courts.

One question that has been asked is whether the province has the constitutional authority to recognize aboriginal title and to enshrine that recognition in legislation. 

To state the obvious, because this agreement is a new form of aboriginal title recognition, there is no binding judicial authority directly on that point. 

What is clear is that the Province has the constitutional power to defend aboriginal title claims. Surely if the province has the power to defend a claim of aboriginal title, it must have the power to choose to admit that claim. That is what is happening here. The province is changing its position. Instead of opposing the Haida title claim it has decided to accept it. (Similarly, the Haida have relinquished their claim to privately owned land and public infrastructure.)

There’s another point that the nay-sayers do not acknowledge. If you look at the history of court challenges to aboriginal treaties and agreements, you will not find a case where a court has ever struck down a government initiative to recognize or give effect to aboriginal title. What you will find instead are cases where courts make orders upholding and enforcing the promises made by the Crown in its dealings with First Nations.

And so I have a question. Given decades of judicial statements preferring negotiation to litigation, and a long history of court decisions upholding and enforcing the honour of the Crown in all its dealings with First Nations, does anyone seriously think that a court would declare that the Province does not have the constitutional authority to enter into an agreement recognizing Haida aboriginal title? 

On this point, I speak with some experience. When the province and Canada concluded the first modern day aboriginal treaty in BC, I was one of three members of the BC legislature who launched a court challenge to part of that agreement. We argued that the self-government provisions were unconstitutional. We relied for this argument on the existing jurisprudence with respect to aboriginal self-government rights.

The court dismissed our challenge. The court had no difficulty updating the law concerning the constitutional division of powers to make room for the Nisga’a treaty self-government provisions.

My point is that you can always dig around in the dusty corners of constitutional law to find arguments that appear to support your opposition to an initiative intended to advance reconciliation. But the law will adapt as required to give governments, supported by First Nations, the power they need to advance that goal. 

 

In conclusion, it’s good to ask questions. But be clear about where you really stand. Reconciliation is not just pretty words. It’s real change. It’s an opportunity to right historic wrongs, to honour the constitutional promise of recognition and affirmation enshrined in section 35 of the 1982 Constitution Act, and to work towards the realization of the famous admonition of Chief Justice Lamer that “we are all here to stay”. Recognition will create certainty where now there is uncertainty. The Haida aboriginal title recognition agreement is a powerful statement that the government of British Columbia is moving from a legacy of denial to a future based on recognition, and an equally powerful statement that the Haida are willing to work with the government to sort that future out together.

 

Recognising Haida Aboriginal Title

The BC Government and the Haida Nation have recently announced they are close to reaching an agreement in which the government will formally recognize Haida aboriginal title to Haida Gwaii.   If I were in the audience for a public ceremony announcing such an agreement I would stand up and applaud. It’s been a long, long road of conflict between the BC Government and the Haida. The proposed agreement, which builds on the success of other recently negotiated agreements on Haida Gwaii, is a very significant step forward. A step at long last based on recognition, rather than denial.

There is of course more work to be done. There will need to be negotiations about the long-term relationship between Haida aboriginal title and other rights on the islands. But in this agreement these issues have been expressly carved out: aboriginal title is recognised throughout Haida Gwaii, but the parties have agreed that recognition will have no effect on privately-owned land. Moreover, there will be no effect on the rights and powers of municipal governments or public infrastructure, including roads, health care services and schools. All land and resource tenures and decisions will be governed as now. Nor will the agreement apply on the Indian Act reserves or their band councils. The proposed declaration embraces the undoubted reality that Haida Gwaii is, as it always has been, the land of the Haida. But it also recognizes that others have made Haida Gwaii their home and their rights also need to be recognized and protected.

The government has said clearly that the details of recognition and governance authority will be worked out in further and future negotiations. All those who have a stake in these questions will be included and consulted. But it is high time that these discussions take place against the backdrop of a formal recognition of Haida title. 

…

Twenty years ago, the Supreme Court of Canada, in a decision which permanently altered the architecture of land and resource decision-making in British Columbia, held that the Haida had a good claim of aboriginal title to Haida Gwaii. 

In those days the Haida were participants in the BC Treaty Commission process but it was proving difficult to make significant progress. The reason was simple: the Haida position was that all of Haida Gwaii was their homeland. The idea of compromising that basic and principled position was simply anathema to them.

And indeed, if you were trying to find a place in British Columbia where a claim of aboriginal title across the whole landscape would be strong, Haida Gwaii would be an obvious place to look. There are no overlapping claims by other First Nations. Territorial land boundaries are clearly defined by the shoreline of a multi-island archipelago. Evidence of ancient occupation is found throughout the islands. The Haida have consistently asserted their title by protests and blockades against governments, logging companies and others. 

More than twenty years ago the Haida commenced a lawsuit seeking a declaration of aboriginal title to Haida Gwaii. That lawsuit has proceeded in fits and starts but it has never been abandoned and lately it has been progressing resolutely towards trial. 

And here is a point for emphasis. In that lawsuit the Haida claim aboriginal title to the whole of Haida Gwaii. Private land, resource tenures, and public infrastructure are all included in the legal claim.

Are these questions we should leave to the courts? 

If we leave it to courts to decide, we abandon control over the outcome. If we negotiate, we can control the outcome, we can decide what balances to strike, what compromises to make and we can establish a problem-solving relationship based on mutual recognition and respect, rather than a grudging acceptance of a decision imposed by courts.

Courts have been clear and consistent on this point: negotiation of aboriginal claims is preferable to litigation.

That is what the Province and the Haida are doing in this proposed agreement: negotiating their relationship, rather than leaving it to the courts to decide. 

There can surely be no doubt that the Province has the constitutional authority to do this. If the Province is constitutionally capable of defending a claim of aboriginal title, it must have the constitutional capacity to admit such a claim by recognizing title.

Nor is there any basis for a suggestion that this agreement creates conflict between aboriginal title and fee simple title: the agreement takes that question off the table.

And while it is certainly legitimate to ask questions about what is proposed here, it is irresponsible to ignore the reality of a pending trial in which everything would be up for grabs: private land rights, tenures, municipal government authority and more. 

Here, as ever, negotiation creates opportunities for certainty that litigation does not.

Some will greet this announcement by arguing that government should never recognize aboriginal title unless and until all of the details have been sorted out. That of course would shut down any attempt at recognition because there will always be more details, more questions, more concerns that will need to be sorted out. The argument that government should not recognize aboriginal title until a court has declared it is not just an emaciated view of democracy and an impoverished view of aboriginal title, it ignores the reality of the uncertainty that exists now wherever the question of aboriginal title remains unresolved. 

So by all means, ask the questions that need to be asked. But congratulate the Province and the Haida for taking an important step towards recognition and reconciliation, a step towards a measure of fairness and justice that will also build the certainty needed for all of us to prosper in British Columbia. 

The BC government's Land Act proposals - another step towards meaningful reconciliation

 There has been considerable discussion about a BC government proposal to advance the project of indigenous reconciliation by amending the Land Act. Putting to one side the question whether the government has done a good job of introducing the topic, what about the proposal itself? I will say at the outset that it is a welcome initiative, but to explain the point some context is required.

Nearly all land and resource decisions on Crown land in British Columbia are subject to an obligation to consult with potentially affected First Nations. This obligation was established by a Supreme Court of Canada decision almost 20 years ago in a case involving the Haida. It’s a constitutional obligation. Government has no power to avoid it. And it is very fact and site specific, so while the broad principles of the obligation are clear, their application to individual situations is rarely clear.  

The result is that while it is technically correct that the minister responsible for the Land Act is the final decision-maker on all Land Act licence and tenure decisions, that decision making authority in practice is seriously constrained by the Haida obligations. If the minister doesn’t properly consult or accommodate, the minister’s decision to grant or issue or renew a licence or permit will be set aside by the Court – and there are dozens and dozens of examples of such court decisions. 

The effect of Haida is to create outcome uncertainty for land and resource development because of the risk that any decision to grant a licence or tenure may be challenged because of inadequate consultation or accommodation. In my view this uncertainty is unhealthy, both socially and economically.  To sidestep this uncertainty, land and resource companies will often try to negotiate agreements with First Nations. Sometimes these are mutually beneficial arrangements, sometimes they’re just a price paid for indigenous consent to avoid the risk of a court challenge. Is there a better way? Yes. Read on.

In 2019 the BC Legislature enacted the Declaration on the Rights of Indigenous Peoples Act. The main aims of this Act were to affirm the application of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) to the laws of British Columbia and to create a framework for its implementation. 

The Act passed unanimously and was widely celebrated as holding out the potential for meaningful reconciliation in BC.

Th Declaration Act gives the government the power to enter into agreements with First Nations that would limit the statutory decision-making power of Cabinet ministers by requiring them either to exercise that power jointly with a First Nation, and/or to obtain the consent of the First Nation before exercising that decision-making power. 

But the Act does not give legal effect to the decision-making powers in such agreements. That can only happen with specific legislation.

An example of the kind of legislation that is required is found in the Environmental Assessment Act. A section of that Act authorizes shared decision-making in cases where there is an agreement with a First Nation. The best-known example of this kind of agreement was entered into with the Tahltan and it relates to mining. Again, it was widely celebrated as an example of reconciliation in action. There are other similar provisions in other legislation.

The current proposal is to empower the minister responsible for the Land Act to enter into shared decision-making agreements.

This of course is exactly what was contemplated by the Declaration Act in 2019.

The provisions of any shared decision-making agreement will be particularly important for anyone who has rights that may be affected by it. People who hold rights now under tenures granted by the Crown will rightly be concerned at the prospect of changes to those tenures. Reconciliation will not be advanced if the result of shared decision-making is to strip tenure holders of long-held rights.

But there may also be considerable advantages in such agreements, and not least because they will include First Nations in decisions about the use of land they claim as theirs. In the first place any decisions made under such agreements will be subject to judicial review to the same extent that they are now. Fairness will be legally required and First Nations will have to accept that requirement as a condition of entering into any shared decision-making agreement. 

Moreover, the law requires the government to consult before entering into such agreements, to make the fact of consultation public and to make the agreement itself public. No behind-closed door deals, no non-disclosure provisions.

An additional significant advantage is the possibility of agreed-upon timelines for decisions. Today most land-related decisions are not subject to any timeline. Government can take all the time it wants, and quite often takes a very long time, because it must satisfy the duty of consultation I mentioned at the outset. I would hope that any agreements entered into under the new Land Act provisions would include clear timelines and other matters. But the decision to give the minister responsible for the Lands Act the power to enter into such agreements should not, in my view, be controversial. 

To make the point clear, because there are people suggesting otherwise, nothing in the legislative proposals will change anything on the ground anywhere. Change will only happen when government and First Nations negotiate agreements. The experience since the Declaration Act was enacted in 2019 is good evidence that this will be a long, painstaking and careful process. Government cannot unilaterally legislate shared-decision making. It only happens when government and a First Nation agree to take that step together.

Of course, there are those who disagree with UNDRIP and who opposed the passage of the Declaration Act. I would expect them to be opposed to this legislative initiative. They wish that section 35 of the Constitution Act, 1982 – which recognizes and affirms aboriginal and treaty rights - were not part of the constitution of Canada, and that section 91(24) of the Constitution Act 1867 – which creates special constitutional status for “Indians and lands reserved for the Indians” could be repealed, and that the Haida case were not the law of Canada. They wish that the Supreme Court of Canada decisions which raise the possibility that substantially all the Crown land in British Columbia is subject to aboriginal title were not the law. They wish, in effect, that reconciliation was just a bunch of nice words, like the land acknowledgements you hear at public events.

But for my part, the Declaration Act was a good step towards meaningful reconciliation, and the idea that the uncertainty of today’s land and resource decision-making could be replaced by fair, principled, transparent and accountable shared decision-making agreements represents a significant step forward both socially and economically.