A new draft agreement with the province lays out the groundwork to transition governance and jurisdiction over more than 10,000 square km of territory
Gaagwiis, President of the Haida Nation, sings during a May 2023 ceremony to officially recognize the Council of the Haida Nation as a government in provincial law. Photo: Government of B.C.
The Tyee: Indiginews – In a decision that has been more than 50 years in the making, “B.C.” has announced the completion of a draft agreement that formally recognizes the Haida Nation’s Aboriginal title throughout its entire territory of Haida Gwaii.
Spread out over more than 200 islands strung along the province’s Northwest Coast, their homelands comprise more than 10,000 square kilometres in total.
The agreement — announced March 15 — lays out a framework for negotiation around how the nation and the province will work together on a transition to Haida governance and jurisdiction.
Though it still needs to be finalized, this marks a milestone in “Canadian” history as the first time the province has recognized Aboriginal title via negotiation rather than being forced to acknowledge it through a court process.
“To come to terms of an agreement is a big deal. To have this opportunity for both governments to move to the next step of figuring out how title will be implemented, in a good way, is important,” says Gaagwiis (Jason Alsop), president of the Haida Nation.
Containing elements of both ownership and governance, the legal concept of Aboriginal title goes beyond the conventional understanding of private property.
As defined in a 2014 Supreme Court of Canada decision that recognized the Tsilhqot’in Nation’s title, a nation that holds title has “an exclusive right to decide how the land is used and the right to benefit from those uses,” but also that “those uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.”
“In 1913, when the Royal Commission came here to Haida Gwaii, our people were very clear that they didn’t want to discuss reserves and accept what the government was trying to lay down,” Gaagwiis says.
“It’s all Haida land, the whole territory — the land and the sea. It’s been a consistent position, and a consistent effort for the Haida nation now for well over 100 years, and 50 years since we formed our own government to deal with it.”
The transition is anticipated to take place over an approximately two-year period, according to Gaagwiis, and will involve extensive engagement with involved parties, like residents and local governments. Any land and resource decisions “will continue to be made through existing processes,” according to a statement issued by the province on March 15.
“We’ve managed to secure some important recognitions, like that private property is protected, that local government jurisdiction remains, and there’s no impact on infrastructure services, roads, and ferries and highways and medical services,” says Murray Rankin, the province’s minister of Indigenous Relations and Reconciliation, in an interview with IndigiNews.
“This is the first time that governments will have negotiated, rather than being told by a court, after litigation, to recognize the existence of Aboriginal title. And it’s a real opportunity to get it right.”
‘This is your work to do’
Crucial to understanding these negotiations is a 2002 court case brought by the Council of the Haida Nation to settle the issue of its Aboriginal title, which has been hanging over the proceedings while the province and the nation tried to find a solution through negotiations.
The Haida had a very strong legal case, says Douglas White Kwul’a’sul’tun, a Coast Salish lawyer who is special counsel to the premier on Indigenous reconciliation.
“The Haida Nation is in a unique position because they’ve got very good evidence and they’ve been preparing for court for a long time. And they have no overlaps with other nations, as in, no other nation claims the islands,” he says. The province and the Haida Nation are also in a good position as they’ve worked together closely on decisions for approximately 15 years, so an effective working relationship has already been established.
The decision to negotiate title on a nation-to-nation basis, rather than through the courts, is informed by a civil litigation directive issued in 2022 by then-attorney general David Eby with the explicit aim of changing the way cases are argued in court — prioritizing resolution, innovation and negotiation. The directive clearly instructs the province to seek to settle cases so they don’t go to litigation — which is costly and “is not the preferred mechanism to advance meaningful reconciliation.”
Court rulings have pushed for governments to lead the way when it came to sorting out the complex issue of Aboriginal title for decades, going back as far as 1973 when Frank Calder, a former Nisga’a MLA, took the famous Calder case to the Supreme Court of Canada.
“They were implicitly saying back then, ‘You guys sort this out on the political side. This shouldn’t be sorted out in the court system. We’ll give you theory, we’ll give you direction, but you guys have got to do this work. This is your work to do.’ And they refused,” says White.
“That’s part of the reason why a decade ago, the Supreme Court finally made the decision with its legal declaration, because they’d had enough of waiting for the politicians to do this.”
White is referring to the Supreme Court of Canada’s landmark decision in 2014, which recognized the Tsilhqo’tin Nation’s title to its approximately 1,700 square-kilometre territory. It was the first time in the country’s history that a court had declared title to lands outside of a reserve.
“In an ideal world, the process of reconciliation would take place outside the adversarial milieu of a courtroom,” wrote B.C. Supreme Court Justice David Vickers in his 2007 decision on the Tsilhqot’in case. “This case demonstrates how the Court, confined by the issues raised in the pleadings and the jurisprudence on Aboriginal rights and title, is ill-equipped to effect a reconciliation of competing interests.”
The benefit of negotiating title outside of the courts is that the planning and implementation of the transition can take place in an orderly way, says White. The way it is being done — in an atmosphere of trust, respect and mutual knowledge — also creates a potential opportunity for other nations down the road.
“This hopefully allows us to set that argument aside with British Columbia, and not have to use up our time and energy and taxpayer dollars for the province to fight something that we all know is true and pre-existed the creation of the crown,” says Gaagwiis. “For some people, maybe it’s going to seem new or surprising in some way. But to us, the Haida Nation and the people of Haida Gwaii, we’ve been having this conversation for quite a while.”
Working through it
During the transition period there will be a special focus on the management of Haida Gwaii’s substantial protected areas — about half of the nation’s territory — which the Haida have already worked to preserve, says Gaagwiis.
“We want to move those under Haida jurisdiction and also look at the rest of the lands that are available for forestry and natural resource use and how to shift those to be more aligned with Haida history, culture and values,” he says. “We have to work through that and have, we believe, laid out a way we can do it.”
Other considerations include how to deal with permits, tenures and licenses the province has issued without the nation’s permission and consent over the years. As they move forward, existing agreements and processes will be amended to align with Haida title, says Gaagwiis.
“New considerations and applications to do things here on Haida Gwaii will be viewed from the lens of Haida title lands and not necessarily Crown land perspectives,” he adds.
“We want to change the way the land is managed and really focus on making decisions that are in the best interest of the Haida and the islands community, and not the best interests of corporations and government taking the lion’s share of the resources and benefits from these lands.”
Despite the province’s clear statement that the agreement will not impact anyone’s private property, local government jurisdiction or bylaws on Haida Gwaii, the B.C. United Caucus issued a statement on March 22 that accused the NDP of adopting an approach “shrouded in secrecy and lacking broad public consultation” that will “deter investment and destabilize the land base across our province” and infringe on the rights of landowners.
Denouncing the caucus’s statement as misleading, factually incorrect and “aimed at instilling fear,” the First Nations Leadership Council (FNLC) pushed back against this narrative.
“We are left to wonder if the B.C. United Party’s failure to follow the facts is a purposeful attempt to stir division within B.C., which would likely victimize First Nations people once again,” says a statement released by the FNLC on March 25.
“Rather than seeking to deny First Nations our most basic human rights, in clear violation of domestic and international law, we encourage all British Columbians to stand with us in celebrating the current provincial government and the Haida Nation’s tremendous accomplishment.”
What the decision means for the treaty process and for future title cases with other nations remains to be seen.
“We had the ideal conditions to lead to the agreement we hope to enter into on Haida Gwaii. But I wouldn’t want to say that those conditions are the same in other parts of the province,” says Rankin. “So we’re going to continue to try to meet First Nations on the ground, and work with them in a way that they want us to. That’s what we’re going to do.”
The failure to agree on treaties with many nations throughout the province can be traced back to the process itself, says White.
Despite the 1992 proclamation by Sḵwx̱wú7mesh Chief Joe Mathias during the BC Treaty Commission Agreement signing speech that “negotiations, in our view, will not be based on that tired old notion of extinguishment,” in many cases that is what took place.
Gaagwiis says he hopes the current approach of partnership helps other nations see how title can be recognized in a way that “shows how Indigenous nations and British Columbia and British Columbians can coexist” but also acknowledges that every nation has their own journey.
“There is no one-size-fits-all approach. But for the Haida nation, our approach has been to have our full title recognized on all the lands and our ability to determine our own governance and membership. We hope that it will help others and we’re open to sharing our experience.”
Now that the draft agreement on title implementation has been reached, the Haida Nation and the provincial government expect to finalize and approve it at some point in April.
Author
JULIE CHADWICK, LOCAL JOURNALISM INITIATIVE REPORTER
Julie Chadwick is an award-winning journalist and editor and lead reporter at The Discourse’s Nanaimo bureau. Her work has appeared in the Walrus, the National Post, the Vancouver Sun and the Victoria Times-Colonist.