Written By Sharon Singh, Laurie Wright, David Bursey, Radha Curpen and Brienne Gloeckler

On March 28, 2024, British Columbia and the Council of the Haida Nation released the draft Gaayhllxid • Gíihlagalgang “Rising Tide” Haida Title Lands Agreement (“Draft Agreement”) which would recognize Haida Nation’s Aboriginal Title on Haida Gwaii and transition over time land-and resource-related governance powers from British Columbia to Haida Nation. 

The Draft Agreement includes a transition period (“Transition Period”) in which British Columbia and Haida Nation will continue to use their existing shared decision-making processes to make land and resource decisions while aligning Haida Nation and B.C.’s laws and jurisdictions with the recognition of Aboriginal title. The Draft Agreement estimates that Transition Period will take two years (an ambitious timeline) and will focus initially on land and resource decision-making powers over protected areas and forestry.

Background

The Haida Nation claim title to Haida Gwaii. In Haida Nation v British Columbia (Minister of Forests), the Supreme Court of Canada (SCC) affirmed the strength of Haida’s Aboriginal title claim. The SCC agreed with the chambers judge's finding that, based on a “voluminous” evidentiary record, “the Haida claim goes far beyond the mere ‘assertion’ of Aboriginal title”.¹ The SCC concluded that the evidence "clearly supports" a prima facie case in support of Aboriginal title.² British Columbia's view is that "Haida Nation has a very strong Aboriginal Title case to Haida Gwaii".³ The Draft Agreement recognizes that Haida has provided extensive evidence in relation to the test to prove Aboriginal title on terrestrial Haida Gwaii and that no other Indigenous Nations have claimed interests in Haida Gwaii that overlap with that of Haida Nation. Since 2002, British Columbia and Haida Nation have been preparing for litigation of Haida Nation’s Aboriginal title of Haida Gwaii ("Haida Title Case").⁴

British Columbia and Haida Nation have entered several reconciliation agreements establishing, among other things, shared decision-making frameworks and recognizing Haida Nation as the holder of Haida Title and Rights. These agreements include the Kunst’aa Guu-Kunsta’aayah Reconciliation Protocol entered in 2009, the GayGahlda • Kwah.hlahl.dayaa “Changing Tide” Framework for Reconciliation signed in 2021, and the Nang K̲’uula • Nang K̲’úulaas Recognition Agreement entered in 2023. British Columbia enacted the Haida Gwaii Reconciliation Act and the Haida Nation Recognition Act in support of these agreements.

Draft Agreement

In addition to formally recognizing Haida Nation’s Aboriginal title (and affirming inherent Haida Title) over Haida Gwaii, the Draft Agreement sets out the following key aspects:

• Private land: The Draft Agreement is clear that privately-owned lands (called fee simple lands), whether residential, commercial or industrial, will be protected by both Haida and B.C. laws. All rights and interests associated with fee simple title, including registered charges such as mortgages rights of way, and liens, will remain unaffected. The Draft Agreement does not extinguish Haida Nation’s Aboriginal title to allow fee simple ownership to continue, and British Columbia does not have the constitutional authority to extinguish Aboriginal title.⁵ Rather, British Columbia and Haida Nation have agreed for Haida Nation’s Aboriginal title and fee simple lands to coexist. Haida Nation’s Aboriginal title will exist underneath fee simple lands. The Land Title Act and all other B.C. laws will continue to apply to private property on Haida Gwaii. Owners of private land on Haida Gwaii will still be able to sell their land, mortgage, or lease it, and agree to encumbrance it, such as through right of ways, as they do now without seeking the consent of Haida Nation. Fee simple interests that escheat back to British Columbia will be transferred to Haida Nation. While the courts have not conclusively ruled on the relationship between Aboriginal title and fee simple that has been granted to third parties on Aboriginal title lands, there are judgments that indicate that the two may not be irreconcilable.⁶
• Existing other interests: Other interests related to land and resources, such as permits, licenses and designations, (Other Existing Interests) will also remain unaffected during the Transition Period. The Draft Agreement enables Haida Nation to discontinue, in a manner that aligns with Aboriginal title and the reconciliation of Haida law and provincial law, Other Existing Interests it holds during the Transition Period.
• Local governments: Privately owned lands will continue to be within the boundaries of local governments such that local governments will continue to exercise jurisdiction under provincial laws and bylaws and services provided to fee simple lands on Haida Gwaii will continue. The Draft Agreement states that Haida Nation and British Columbia will work with local governments to identify how local government jurisdictional boundaries can be consistent with Haida Nation’s Aboriginal title. Further, the Draft Agreement expressly confirms that local governments and Haida Nation are not precluded from entering into agreements on such matters.
• Public infrastructure and services: The Draft Agreement sets out that it will not affect the ongoing provision by British Columbia and local governments of public services, such as health, education, transportation, and fire and emergency services in Haida Gwaii.

The Draft Agreement also enables Haida Nation and British Columbia to negotiate and enter into subsequent agreements on matters related to the Draft Agreement.

Implications

The Draft Agreement aims to settle the Aboriginal title claim as between British Columbia and Haida Nation in the Haida Title Case for the terrestrial area, not marine areas. However, Canada is not a party to the Draft Agreement so it does not bind Canada in that litigation.

The Draft Agreement is not a treaty.  It is a government-to-government agreement that charts a path forward for future negotiations directed at subsequent agreements around managing the land base, through a Transition Period.  During the transition period Haida Nation and British Columbia will continue to use existing shared decision-making bodies and processes to make land and resource decisions.

The Draft Agreement represents a new approach to reconciliation in the context of Aboriginal title rights. The SCC has emphasized that, while evidence of historic practices is crucial to the establishment of Aboriginal rights including title, at the same time the practices of Indigenous Peoples can evolve while still being protected as Aboriginal rights.⁷ The same principle has been recognized at the federal level in the preamble to the United Nations Declaration on the Rights of Indigenous Peoples Act⁸ which states, "Whereas the protection of Aboriginal and treaty rights—recognized and affirmed by section 35 of the Constitution Act, 1982—is an underlying principle and value of the Constitution of Canada, and Canadian courts have stated that such rights are not frozen and are capable of evolution and growth." The approach recognizes that Indigenous Peoples exercise their historic rights in a modern context. Similarly, the SCC has encouraged negotiation as a "preferable way of reconciling state and Aboriginal interests"⁹ and stated that "[t]rue reconciliation is rarely, if ever, achieved in courtrooms".¹⁰

The modern context for Aboriginal title includes private ownership of lands within larger areas to which Aboriginal title attaches. Based on the Draft Agreement, Haida Nation and British Columbia recognize that reconciliation is served by accepting that third parties should be entitled to rely on the apparent validity of government acts such as land patents providing for fee simple tenure even if those government acts may have constituted unconstitutional limitations on Aboriginal rights.  The Ontario Court of Appeal in Chippewas of Sarnia followed the approach when considering the discretionary remedies against third parties in the context of a title claim, without addressing how Aboriginal title and private ownership may co-exist.  It remains to be seen how the law of Aboriginal rights will evolve on this important point, in contrast to the negotiated in the Draft Agreement. 

Next Steps  

BC hopes to finalize the Draft Agreement by Spring 2024, subject to the approval of both parties. British Columbia must enact legislation to enable the changes in the Draft Agreement. Questions might be raised about the constitutionality of that legislation given that Delgamuukw confirmed federal jurisdiction over Aboriginal title as well as over Aboriginal rights in relation to land. However, that decision was examining the power to extinguish rights, not the power to recognize rights.  

Nothing in the Draft Agreement purports to accept a surrender of title or rights or to extinguish them.  Instead, British Columbia is recognizing Aboriginal title over provincial Crown land as the basis for future changes in how decisions are made over land and resources, within the province's jurisdiction over the management of public lands. The Draft Agreement provision about matters that are not affected by the recognition of title, such as private property rights, local government, and local services and infrastructure, all fall within provincial jurisdiction. BC and Haida Nation will need to take steps to reflect the Draft Agreement in the Haida Title Case. 

The Transition Process—estimated to last two years—will likely last longer, given the challenge of reconciling B.C. laws, Haida laws, and Aboriginal title. The initial focus will be on land and resource decision-making.

Haida Nation and British Columbia will also seek to negotiate agreements on matters relevant to the Draft Agreement, including freshwater on Haida Gwaii, fiscal arrangements and provincial taxation matters. Changes to provincial and to Haida laws may be needed to implement changes resulting from the Transition Process. The parties will also have to address those areas over which the Haida assert title but are not subject to the Draft Agreement.  

For more information on how this might affect your business, please contact one of the authors.