The Province Of British Columbia And The Council Of The Haida Nation Enter Into Landmark Bilateral Title And Reconciliation Agreement

It has been announced that on April 14, 2024, the Province of British Columbia and the Council of the Haida Nation reached a bilateral Aboriginal title agreement: the Gaayhllxid/Gíihlagalgang "Rising Tide" Haida Title Lands Agreement (the "Haida Title Agreement"). The Haida Title Agreement recognizes and affirms the Aboriginal title of the Haida Nation and establishes a procedure to reconcile the laws and jurisdictions of the province and Haida Nation over Haida Gwaii. It also provides that future agreements and negotiations are still required, and that many aspects of provincial and municipal law continue to apply and remain unchanged.

Background

Haida Gwaii, a group of over 200 islands totalling approximately one million hectares (9712 square km), is situated 100 kilometres west of the northern coast of British Columbia.

The Haida Nation represents the Indigenous people of Haida Gwaii. For fifty years, the Council of the Haida Nation has served as the Haida Nation's governing body. The Haida Nation has asserted Aboriginal title over the entirety of Haida Gwaii lands and its surrounding waters for over a century.

Significant disputes and court cases have resulted over Haida Gwaii's title, including Haida Nation v. British Columbia (Minister of Forests) ¹, the leading decision of the Supreme Court of Canada on the government's duty to consult and accommodate Indigenous groups. The decision affirmed a spectrum of consultation and proportionate balancing of Indigenous rights and title interests.

The Haida Nation initiated legal proceedings against the province in the Supreme Court of British Columbia in 2002, seeking a declaration of Aboriginal rights and title over the Haida Gwaii and surrounding waters (the "Haida Title Case"). ² In order to allow for negotiations to take place, the proceedings were put into abeyance by agreement in December 2008. Litigation resumed in 2012 and is still ongoing. It is important to note that this agreement does not settle the ongoing litigation, just the issue of Aboriginal title to provincial Crown lands – leaving unresolved the issue of Aboriginal title over private lands and federal lands, as well as the claim for damages (not insignificant) for past infringements of Aboriginal rights and title.

The Haida Title Agreement

The bilateral agreement is a first-of-its-kind negotiated agreement that is not a treaty, but rather part of a reconciliation process, making its nature and effect legally uncertain. In the agreement, the Province of British Columbia recognizes and affirms the Haida Nation's Aboriginal title to Haida Gwaii, which is protected under section 35 of the Constitution Act, 1982. It is important to note that this recognition of Aboriginal title only binds the province, not third parties or the federal Crown. ³ However, such a recognition would no doubt be persuasive to any court. The Haida Title Agreement also establishes a process for reconciling jurisdictions and laws on Haida Gwaii.

According to the Haida Title Agreement, provincial law continues to apply to:

• privately owned land and interests under the Land Title Act on Haida Gwaii such as residential, commercial or industrial property;
• existing local government decision-making and administrative processes such as business licences, building permits, zoning or taxation;
• public infrastructure such as airports, ferry terminals, highways, which will all continue to be operated and maintained by the Crown; and
• the delivery of public services on Haida Gwaii, including health, education, transportation, fire, and emergency services.

However, the Haida Title Agreement outlines an incremental transition process that is estimated to take two years but may be adjusted as agreed upon by the parties. The transition process will initially focus on land and resource decision-making, including protected areas, fishing lodges, and forestry. Protected areas include lands on Haida Gwaii designated by Haida and provincial law as Haida heritage sites, parks, conservancies, or ecological reserves. Further, existing management plans for protected areas will continue until their expiry, renewal or replacement.

During the transition process, the existing interests and approvals on Crown land (e.g., tenures, permits, leases, licences, road dedications, and interests or rights related to public infrastructure) issued by British Columbia or a government reporting entity will continue to operate in accordance with their terms and provincial law. Existing interests is defined as any interest, right, or designation in land, water, air, or subsurface resources on Haida Gwaii created by British Columbia and still in existence on the agreement's effective date. ⁴

Either party to the agreement may provide written notice of readiness to negotiate a particular subject matter for inclusion as a schedule to the agreement. The parties are required to seek to reach agreement on the schedules and address the relationship of British Columbia and Haida law, fiscal arrangements, and other matters related to the transition in jurisdiction within 12 months of the notice.

After the parties reach an agreement on the proposed schedules, both British Columbia and the Haida Nation are required to take the necessary steps to implement the Haida Title Agreement and any future schedules, including recommending legislation to the Legislature of British Columbia and the Haida House of Assembly. The parties are also required to resolve any issues that may arise during implementation through an agreed-upon dispute resolution mechanism, which may include mediation, arbitration, a Haida tribunal, or another mechanism established by Haida law.

The Haida Title Agreement requires future negotiations between the parties regarding freshwater on Haida Gwaii, fiscal arrangements, provincial taxation matters, and any other matters that the parties may agree upon. Further, the parties are required to take steps to reflect the terms of the agreement in the Haida Title Case, but it does not intend to delay the case for issues that have not been resolved through negotiations.

The Government of Canada is not a party to the bilateral agreement. However, the agreement recognizes that the federal government has a role and responsibility with respect to:

• income tax;
• marine matters, including the water column and navigation;
• governance resourcing;
• redress and compensation; and
• other matters of federal jurisdiction.

The Haida Title Agreement states that the parties will work collaboratively to reach an agreement with Canada during future negotiations. Further, it does not address or derogate from Canada's interests on Haida Gwaii, including marine areas, the Gwaii Haanas National Park Reserve, lands used for national defence, or other federal public infrastructure.

Implications

The Haida Title Agreement is the first bilateral agreement that is not a treaty to recognize and affirm a First Nation's Aboriginal title. Although further negotiations and implementation of the agreement will take several years, it clearly indicates that many aspects of provincial and municipal law will continue to apply and remain unchanged. Existing interests and approval on Crown land on Haida Gwaii will continue through the transition period and will continue to operate in accordance with their terms and provincial law. However, the agreement is not clear on how existing interests and approval will be treated after the transition period and the terms of those approvals end.

Key takeaways are:

1. Privately owned land remains under provincial jurisdiction and the recognition of Haida Aboriginal title will not change any rights associated with it.
2. Existing local government jurisdiction over business licences, building permits, zoning or taxation will continue as they are.
3. Public infrastructure and the delivery of public services will continue to be operated and maintained by the province.
4. Existing interests at the time the agreement is reached are maintained through their terms and throughout the transition period, after which their validity is uncertain.
5. Further negotiations and agreements between the Haida Nation, provincial, and federal governments are still required on various subject matters and areas of jurisdiction.

There is, as of yet, little transparency on what will happen for those holding provincial tenures or licences after the transition period.

In addition it is unclear what precedent that the province has established. Minister Rankin (Indigenous Relations and Reconciliation) was quick to point out how unique the situation is in Haida Gwaii: no overlap claims, 50% of the population being Haida, and a Haida government with a 50-year track record. ⁵ However unique the province may claim Haida is, other Indigenous governments will likely demand the same type of agreement.

Footnotes

1 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.

2 Supreme Court of British Columbia, Action No. L020662.

3 This principle was recently reinforced by the Supreme Court of Canada in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, in which the Court held that: "The fact remains, of course, that all actors in the system, including the provinces, can go to court to challenge Parliament's understanding of the scope of the rights recognized and affirmed by s. 35 of the Constitution Act, 1982. Indeed, it is quite possible that a province's reading of s. 35 will differ from the one indicated in s. 18(1) of the Act. Ultimately, it is the courts that will have the last word on the scope of s. 35, given its constitutional nature."

4 A copy of the final form of the Haida Title Agreement has not been publicly released, so the effective date is still unknown. It also means that our reporting on the contents on the agreement rely on Provincial announcement and the draft agreement text that was publicly released.

5 See report: https://vancouversun.com/opinion/columnists/vaughn-palmer-haida-milestone-not-likely-to-be-example-for-rest-of-country.

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