Twenty years ago, the Supreme Court of Canada noted the Haida First Nation had a strong case for proving title over Haida Gwaii, which was then still officially known as the Queen Charlotte Islands.
“The Haida’s claim to title to Haida Gwaii is strong,” the court noted in a 2004 case (Haida versus B.C. Ministry of Forests) over logging rights on Crown land on Haida Gwaii.
Ever since, the Haida and B.C. government have been girding themselves for a major legal battle over Aboriginal title on Haida Gwaii.
But last week, the B.C. government announced it has struck an agreement with the Haida to recognize Aboriginal tile to Haida Gwaii -- all 10,000 square kilometres of it -- with carve-outs for non-Aboriginal private lands.
It’s a very big deal, and one that may be long overdue, said to Geoff Plant, a former B.C. Liberal government treaty minister and attorney general, now a lawyer specializing in aboriginal law at Gall, Legge, Grant, Zwack LLP.
A legal team specializing in an Aboriginal law at Cassels law firm is raising concerns about the agreement, however, saying Aboriginal title, being communal, is intrinsically incompatible with private fee simple holdings.
And they say the agreement could create “considerable uncertainty” for forestry and mining operations that require long-term use of Crown land for their operations.
“This announcement raises significant questions about the implications of acknowledging Aboriginal title in a contract versus a treaty or land claim agreement,” say Tom Isaac, Mackenzie Hayden, Jared Enns and Emilie Cox in a legal analysis of the agreement.
“It also raises concerns regarding the legal consequences of recognizing Aboriginal title over privately owned fee simple lands, and the effects of such a recognition on the property rights and economic interests of private parties.”
Haida Gwaii is 10,000 square kilometres in size, with a population of about 5,000, about half of whom are Haida. About 15 per cent of the land is working forest in Crown tenure under the Timber Supply Area 25.
Last week, Murray Rankin, minister of Indigenous Relations and Reconciliation, announced an alternative to a major court battle over aboriginal that has been brewing for decades.
Since 2002, the Haida and B.C. government have been “preparing for a court case on the question of Aboriginal title on Haida Gwaii,” Murray said.
The two parties will avoid having to get the courts to determine the extent of Haida title through a negotiated agreement.
In the proposed “Haida Title Agreement,” the B.C. government would recognize Haida title to all of Haida Gwaii.
There will be some exemptions, however, to protect the rights of non-Haida property owners.
“Recognizing Aboriginal title will not impact anyone’s private property, or local government jurisdiction and bylaws on Haida Gwaii,” the agreement stipulates. “Highways, airports, ferry terminals, health care and schools will not be impacted. Residents will continue to receive municipal services and pay property taxes in the same way they do today.”
The government also said that, until jurisdiction is transferred to the Haida, decisions on permitting and leases on Crown land will continue to be made by the provincial government.
But in its analysis, Cassels suggests that Aboriginal title and private, fee simple land are incompatible.
“It is unclear whether the province has contemplated the impact that recognizing Aboriginal title, through the agreement, will have on private property interests and existing interests in Crown land.
“Through the agreement, the province has fashioned a version of Aboriginal title which is unknown at law, creates considerable uncertainty, and does not promote the reconciliation of Aboriginal and non-Aboriginal interests inherent in section 35 of the Constitution Act, 1982.”
Cassels notes that Aboriginal title, as defined by Canadian courts, is communal in nature, and can never be sold. If the Haida are to have title over all of Haida Gwaii, how can private land continue to be owned in fee simple?
“Lands held pursuant to Aboriginal title cannot be sold, transferred, or surrendered to anyone other than the Crown and are accordingly inalienable to third parties,” the Cassels team write.
“The agreement appears to conflict with this core dimension of Aboriginal title by recognizing aboriginal title over fee simple lands while contending that the private property interests of landowners remain unaffected.
“By recognizing Aboriginal title while preserving the rights of private landowners to sell their properties, the province appears to have, in effect, allowed Aboriginal title lands to be developed in a manner which would substantially deprive future generations of the lands’ benefits, in direct conflict with the law of Aboriginal title."
But Plant said that is the advantage of negotiating Aboriginal rights and title, government to government, as opposed to having judges define them – it gives flexibility in defining those rights and title.
“The result of being able to do this by negotiation is you can be very clear about excluding private land, local government and public infrastructure from this declaration of title, for now,” Plant said.
“They carved out private lands, so that question does not arise right now. There is an ample opportunity over time for the Haida to sort out what the right regime will be for land use and resource use on Haida Gwaii. But the question doesn’t arise today.
“In the long run, these things are going to have to be sorted out, but I don’t think that they are necessarily a problem now.”
While Canadian courts have confirmed that Aboriginal title exists, proving title to specific lands can be very difficult.
The only First Nation in B.C. to ever prove title through the courts were the Tsilhqot’in, who were able to prove continuous and exclusive occupation of a small portion of land within a larger claimed traditional territory in a 2014 Supreme Court decision.
Because of territorial overlap, and the fact some First Nations may have historically moved around within a given territory, proving continuous and exclusive occupation of specific lands can prove difficult for some First Nations.
The Haida don't have that challenge. There appears to be little dispute that the Haida exclusively occupied Haida Gwaii for thousands of years, and that they never ceded title to the islands that make up Haida Gwaii.
“We know that Haida Nation have a very strong Aboriginal title case," Rankin said in a press release. "Litigation would create ongoing uncertainty for residents and businesses and could result in an outcome dictated by the courts that wouldn’t work for the people of Haida Gwaii.
“Instead, we have arrived at an agreement that provides stability for all residents and a path forward for the orderly, incremental approach to implementation of Haida Aboriginal title."
About 44 per cent of Haida Gwaii is Crown forest, and 35 per cent of that is considered timber harvesting land base – about 155,493 hectares – according to the chief forester’s office. So 15 per cent of Haida Gwaii is working forest under some form of Crown tenure.
There are two larger tree farm licences on Haida Gwaii. TFL 60 is held by the Haida Nation’s Taan Forest Ltd. – a total of 279,000 cubic metres annual allowable cut (AAC). A&A Trading, headquartered in Vancouver, holds 99,000 cubic metres of AAC in TFL 58.
The Cassels team raises questions about longer term certainty for mining and forestry tenures on Haida Gwaii.
“The province has noted that until jurisdiction is transferred to the Haida Nation in respect of Crown land on Haida Gwaii, decisions regarding permits, leases, park use permits, and other approvals on Crown land will continue to be made under existing provincial approval mechanisms," they write.
“This creates considerable uncertainty for those who rely on the long-term use and stability of Crown land authorizations for their businesses including mining and forestry operations.
"The province has created considerable uncertainty regarding the long-term viability of Crown land tenures on Haida Gwaii, and elsewhere in British Columbia where the province may choose to unilaterally recognize aboriginal title.”
Plant generally supports the B.C. government’s approach for settling rights and title through negotiations, saying it is preferable to relying on the courts.
“Twenty years ago, the Supreme Court of Canada said the Haida had a good case for Aboriginal title on Haida Gwaii, so this recognition doesn’t come out of the blue,” he said. “It is possibly overdue, in some respects.
“The result of being able to do this by negotiation is you can be very clear about excluding private land, local government and public infrastructure from this declaration of title, for now.”
