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. 

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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.