Historic Agreement Recognizes Haida Title to Haida Gwaii

Friday, April 19, 2024

On April 14, 2024, the Haida Nation and the Province of British Columbia signed the Gaayhllxid/Gíihlagalgang “Rising Tide” Haida Title Lands Agreement. This Agreement recognizes that the Haida Nation has Aboriginal title to all of Haida Gwaii. It is a landmark, historic step in the Haida Nation’s decades-long fight to have their Aboriginal title recognized and vindicated.

The Agreement is instructive in many ways. Notably, it is an example of how Aboriginal title and fee simple can co-exist. The Agreement also demonstrates the need for different approaches – namely, negotiation and the courts – in the process of reconciliation.

Background

The Haida Nation has asserted Aboriginal title to Haida Gwaii in Canadian courts and tribunals for over forty years. In 1980, the Haida Nation asserted its title in the Federal Claims Process, and again in 1992 before the BC Treaty Commission. In 2002, it launched an Aboriginal title claim – this was the claim underlying the Supreme Court of Canada’s seminal 2004 decision setting out the Crown’s duty to consult and accommodate. In that case, the Court acknowledged that the Haida Nation had a strong claim to title to Haida Gwaii.

The Aboriginal title claim was placed in abeyance by agreement in 2008 to allow for negotiations to take place. The negotiations were unsuccessful, and the litigation resumed in 2012. The first phase of the claim was set to go to trial in May 2026.

The Agreement

The Agreement has two main purposes: to affirm the Haida Nation’s Aboriginal title to Haida Gwaii, and to “set out an orderly process for reconciliation of jurisdictions and laws on Haida Gwaii.” The Agreement has several notable features.

• The Agreement does not disturb fee simple interests. Aboriginal title and fee simple can co-exist.

The Supreme Court of Canada has recognized that Aboriginal title confers “ownership rights similar to those associated with fee simple”, including the right to possess the lands.[1] However, under section 4 of the Agreement, the Haida Nation agreed to honour all fee simple interests in Haida Gwaii. Fee simple interests will continue under the Province’s jurisdiction (for instance, land registration systems would continue to apply). “For greater certainty”, the Agreement specifically states that nothing in the Agreement will alter or derogate from “the fee simple interests or rights or interests associated with them” (at s. 4.6).

This is consistent with Haida Nation’s position in their Aboriginal title claim. There, the Council of the Haida Nation chose to not seek the return of any privately held land; instead, the Haida Nation sought remedies from the Provincial and Federal Crown only. It also took the position that fee simple and Aboriginal title can co-exist (The Council of the Haida Nation v British Columbia, 2017 BCSC 1665 at paras 7 and 32).

In consenting to fee simple interests continuing in Haida Gwaii, the Haida Nation have effectively agreed not to enforce their Aboriginal title right to possess privately-owned lands on Haida Gwaii. But, if the private lands are transferred back to the Haida Nation, the Haida Nation would be free to exercise their possessory right again.

If the Haida Nation cannot currently possess the fee simple lands, what is the significance of recognizing Aboriginal title over those lands? There are a few reasons:

1. The Agreement settles an important aspect of the litigation, allowing the Haida Nation to skip over needing to prove their Aboriginal title in court before litigating remaining and contentious issues, such as whether the Provincial Crown can justify its infringements of the Haida Nation’s Aboriginal title, and what compensation the Provincial Crown owes for giving away the Haida Nation’s land to private property holders.
2. A recognition of Aboriginal title confirms that the Haida Nation should be the default, ultimate owner of the lands. The Agreement reflects this. If the Province repossesses fee simple lands by escheat, for instance, the Agreement requires the Province to transfer that land back to the Haida Nation (s. 4.7). Similarly, if the Province no longer needs fee simple interests it owns for a public purpose, the parties will negotiate the return of those fee simple interests to the Haida Nation (s. 4.18).
3. A recognition of Aboriginal title also imposes obligations on the Crown. Once Aboriginal title is established, the Crown is required to obtain an Aboriginal title holder’s consent for any decisions that may infringe on that Aboriginal title. If the Crown cannot obtain consent, then it must justify any infringements in accordance with section 35 of the Constitution Act, 1982. That is, the Crown must show a compelling and substantial objective; that its actions are consistent with the Crown’s fiduciary duty; and that is discharged its procedural duty to consult and accommodate with the Aboriginal title holder.
4. Finally, Aboriginal title confers more than the right to possess lands – it also includes the right to benefit economically from the lands and to manage the lands. A recognition of Aboriginal title over the entire Haida Gwaii, including privately held lands, means that Haida Nation will have an increased role in regulating and governing those lands. The Agreement recognizes this and confirms that “the exercise of Haida Nation and British Columbia jurisdiction will be reconciled through the Transition Processed described in Appendix A” (s. 3.3).

The co-existence of Aboriginal title and fee simple interests, as envisioned in the Agreement, is consistent with the sui generis nature of Aboriginal title. No court has ruled that Aboriginal title and fee simple are mutually exclusive and cannot co-exist. There has only been one court declaration of Aboriginal title in Canada (the 2014 Tsilhqot’in decision) and in that case, Aboriginal title was only declared over Crown lands. Private lands were not at issue at the Supreme Court of Canada.

It is clear the parties considered such co-existence is in accordance with existing law. Section 9.1 of the Agreement defines “Aboriginal title” as the term is used in common law. The Supreme Court has also confirmed that Aboriginal title may be recognized by a judicial declaration or by an agreement.

• The reconciliation process requires negotiations and the courts.

The Agreement describes itself as part of the “reconciliation process” (s. 8.8). In the recent Shot Both Sides decision from the Supreme Court of Canada, O’Bonsawin J, writing for the Court, repeated the oft-cited phrase that “[t]rue reconciliation is rarely, if ever, achieved in courtrooms” (Shot Both Sides v. Canada, 2024 SCC 12 at para 71, citing  Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40). Indeed, O’Bonsawin J juxtaposed the “reconciliation process” with the adversarial litigation process.

But, in our view, the Agreement demonstrates that true reconciliation requires a push-and-pull interaction between the courts and the other branches of government. The Haida Nation had a very strong claim to title. The Supreme Court of Canada acknowledged this over two decades ago. Yet it took over forty years of legal battles and an impending trial date before the Province was willing to acknowledge the Haida Nation’s title.

And the Agreement is just the beginning. Further negotiations are required to reconcile the Haida Nation and the Province’s laws and jurisdiction. At Appendix A, the Agreement provides for an incremental Transition Process “to enable the reconciliation of Haida Nation and British Columbia jurisdictions and laws consistent with Haida Aboriginal title” (Appendix A, s. 1). This process is expected to take two years, during which Haida and British Columbia laws, jurisdiction, and fiscal arrangements will be settled.

In this way, the Agreement confirms that recognition of Aboriginal title is a starting point. There is still much work to be done to reconcile the Province’s jurisdiction and laws with the Haida Nation’s Aboriginal title. Similarly, after the declaration of Aboriginal title in the 2014 Tsilhqot’in decision, the Tŝilhqot’in National Government embarked on extensive negotiations with the provincial and federal Crown to work out the practical effects of that declaration.

But even with ongoing negotiations, access to the courts is still vital for the reconciliation process.

The Agreement does not settle all aspects of the litigation between the Haida Nation and the Crown. The case is proceeding against the Federal Crown for Aboriginal title to lands not subject to the Agreement (and not under Provincial control). The case is also proceeding against the Provincial Crown for damages and compensation for Aboriginal title infringements, including for loss of the use of the private property on Haida Gwaii.

In short, reconciliation is never just negotiation or litigation. It requires both. Where the Crown is willing, negotiations allow accepted wisdom – that Haida Gwaii is Haida land – to be reflected in litigation. This dispenses with the need for proof of Aboriginal title in court, saving everyone time and money and allowing the focus to be on issues that are truly contentious.

But suggesting that reconciliation can only be achieved through negotiation means that Indigenous Nations are at the mercy of governments and can only hope that those governments will do the right thing. That is simply not realistic in many jurisdictions. Some provincial governments have proven completely unwilling to recognize Aboriginal rights and title. Where that is the case, Indigenous Nations must be able to turn to the courts to vindicate their rights and hold government accountable.

What now?

The Province will need to introduce and pass legislation to bring the Agreement into effect. Then, presumably, negotiations related to the Transition Process outlined in Appendix A to the Agreement will begin. As noted above, however, the litigation will continue.

We’ll continue to monitor for updates related to the litigation and the Transition Process.

[1] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, at para 73.