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.
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