Landmark BC-Haida agreement raises fundamental questions about Aboriginal title and private property

In April, the Government of British Columbia and the Haida Nation signed the Gaayhllxid/Gíihlagalgang “Rising Tide” Haida Title Lands Agreement. It is the first time a government in Canada has recognized Aboriginal title through a negotiated agreement with a First Nation.

According to Graeme Cook, a lawyer at Olthuis Kleer Townshend LLP, the agreement culminates a decades-long process. The Haida Nation asserted title in the federal claims process in 1980 and with the BC Treaty Commission in 1992. It took its claim to the courts in 2002, leading to the 2004 Supreme Court of Canada ruling in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73. Cook notes that this decision set out the Crown’s duty to consult and accommodate and acknowledged the Haida Nation had “a very strong claim” to title over Haida Gwaii.

He says that the SCC ruling in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 established that Aboriginal title includes land ownership rights, the right to benefit economically from the land, and the right to manage the land.

The agreement gives the Haida Nation Aboriginal title over the approximately 10,000 square kilometre archipelago of around 200 islands. A “novel” and “exciting” aspect of the agreement, says Cook, is the co-existence of Aboriginal title and private property. Under 4.4, it states that the Haida Nation “will honour Fee Simple Interests, including those held by Haida citizens.” Under 4.6, the agreement states that “this Agreement and the recognition of Haida Aboriginal title do not alter or derogate from those Fee Simple Interests or any rights or interests associated with them.”

According to the province, “The agreement is explicit: recognizing Aboriginal title will not impact anyone’s private property, or local government jurisdiction, bylaws and local government lands on Haida Gwaii.”

The agreement also contains a transition process. Over the next two years, BC and the Haida Nation will negotiate laws, jurisdiction, and fiscal arrangements.

Thomas Isaac is a partner in Vancouver and chair of Cassels Brock & Blackwell LLP’s Aboriginal law practice. He advises business and government clients on Aboriginal legal matters, including negotiations and constitutional issues, and he is a former chief treaty negotiator for the BC government.

In addition to the size of the landmass covered by the agreement, Isaac says it is novel for its acknowledgement of Aboriginal title on privately owned lands that are not Crown territory.

“Based on current law, it is my view that Aboriginal title cannot apply on fee simple, privately owned lands.”

He provides several reasons for this. First, Aboriginal title is an exclusive right to land, requiring the Crown’s beneficial interest in the land. Fee simple title is also the exclusive right to the land, over which the fee simple title holder also has the beneficial interest. Second, the Crown did not have the beneficial interest in the land to give to the Haida in the acknowledgment of title because the Crown had already given the beneficial interest to the fee simple title holder. The government also cannot acknowledge fee simple and Aboriginal title simultaneously because Aboriginal title and lands held by Aboriginal title cannot be given to third parties, only the Crown.

To understand what is meant by the agreement’s assurance that the Haida Nation will honour fee simple property holders, Isaac says he must make an inference to answer the question: “In what universe could this agreement potentially work?” However, he stresses that this concept is not in the agreement. His answer is that the province could acknowledge that the Haida Nation holds title, and the private fee simple interests over which title has been acknowledged are “justifiable infringements.” If they are justifiable infringements, title still exists, but it has been infringed in the justifiable manner contemplated in SCC case law, he says.

“The challenge with what I've just said to you is the agreement doesn't say that. That's me reading into and trying to make sense of this agreement. One of my criticisms of the government has been that none of us should have to do that.”

Isaac says the agreement does a “very poor job of setting out the legal theory and the legal context within which fee simple property rights are to move forward.

“We need the opposite,” he says. “We need clarity, certainty, and predictability, especially if we're trying to move Canadian society down the road of reconciliation. To that extent, this is not helpful. Uncertainty and vagueness do not assist reconciliation.”

Cook says honouring private property within Haida Gwaii is consistent with the title claim the Haida Nation pursued in the courts, where they sued the provincial and federal Crown but not the private property holders.

“We have to take the agreement for what it says… it says, over and over again, that the Haida Nation is going to honour these private property interests.” He says that the benefit of the agreement for the Haida Nation is not that which conflicts with the private property interests but the other aspects of Aboriginal title, such as the right to benefit economically and help manage the land.

“An important point is that Aboriginal title includes more than just the right to possess land… This recognition of Aboriginal title over all of the land in Haida Gwaii, including the privately held lands, means that the Haida Nation will likely have an increased role in regulating and governing those lands.

“Certainly, there are things that we don't know about how that's going to work. And I think that's what that transition process is going to get at over the next couple of years.”

Isaac says that the province’s acknowledgment of title in the agreement is also inconsistent with its own legislation, the Land Title Act and the Land Registry System. “It's not clear at all how that legislation interacts with the commitment from the Haida to ‘honour private property rights.’”

The agreement provides that when a private property holder dies without an heir, the land passes to the Haida Nation rather than the province. According to the agreement, when land held by BC for public infrastructure and the provision of public services or other public purposes is no longer needed, the parties will negotiate the return of those lands to the Haida Nation. Cook adds that, as was set out in Tsilhqot'in, once Aboriginal title is established, the Crown must obtain consent from the title holders for decisions that may infringe on title. If the Crown fails to obtain consent, it must justify its infringement.

He says the Haida Agreement could be a helpful template for other First Nations with title claims over territory with private property interests. The agreement is also an example of how reconciliation is possible through negotiation.

“True reconciliation is rarely, if ever, achieved in the courtroom,” he says. “This agreement is an interesting example of that. It shows that reconciliation is possible through negotiation. But you have to have Crowns that are willing to meaningfully negotiate.”

With the SCC acknowledging the Haida had a strong claim to Aboriginal title 20 years ago and the fact that the Haida have spent 40 years fighting for it, Cook says the agreement also “shows you need the courts as well.”

With the Haida Nation holding Aboriginal title over 100 percent of their claim territory, Isaac says the agreement raises the larger public policy question of whether other First Nations in BC can achieve the same. The territory acknowledged in Tsilhqot’in Nation v. British Columbia concerned about five percent of the territory claimed by the First Nation. There are 200 First Nations in BC, and only a handful have signed modern or historic Treaties. The rest do not have Treaties, he says.

“What's the game plan now moving forward? Is it fair for other First Nations, when they get told you can get a fraction of a fraction of a fraction of your territory? How does that fit into the overall game plan for having a governable province at the end of the day?”