Insights

The Haida Title Lands Agreement

The Haida Nation and the Province of BC have reached a milestone agreement known as the “Haida Title Lands Agreement,” which the parties signed on April 14, 2024. Under this agreement, BC formally recognizes the Haida Nation’s Aboriginal title to Haida Gwaii. This is a remarkable and long overdue achievement to be celebrated.

The agreement contains creative solutions to some of the questions that need to be answered when recognizing Aboriginal title, including: what will happen to private property, whose laws will apply, and how will the transition of jurisdictions be managed? Below is a summary of the key elements of the agreement.

Private property

Private property rights will not be affected by the recognition of Haida Aboriginal title. The Haida agree to honour the rights and interests of owners of fee simple lands (i.e., private property) including all charges and interests attached to fee simple lands under provincial law. The Haida Nation’s decision to honour private property interests in Haida Aboriginal title lands ensures stability and security to those whose own land on Haida Gwaii. This is a political, practical solution to the legal complexity created by colonization in which, contrary to the principles of the common law as expressed in the Royal Proclamation of 1763, the Crown granted fee simple interests to lands in Haida Gwaii without concluding treaty with the Haida Nation or otherwise addressing Haida Aboriginal title.

The courts have not clarified the relationship between fee simple and Aboriginal title but a Crown grant of a fee simple interest does not extinguish Aboriginal title, which is a legal interest in land that includes the right to use and to take the economic benefit from the land. By consenting to the legal and beneficial interest of Aboriginal title land passing to the fee simple owners, the Haida Nation will ensure that fee simple interests on Haida Gwaii are as secure as they can possibly be.    

Laws and jurisdiction

The agreement sets out a process for the reconciliation of Haida and provincial jurisdiction and laws over Haida Gwaii within a managed transitional period of two years, or longer if the parties consent. Some complex issues, like freshwater jurisdiction, are left for the next round of negotiations over this two-year period. Over time, the province will vacate jurisdictional space that the Haida Nation will occupy and Haida law will play a greater and greater role in the governance of Haida Aboriginal title lands.

Businesses, public services and infrastructure, and local governments will continue to operate as usual on Haida Gwaii. To bring certainty to the biggest industries on Haida Gwaii, the first two years of the transitional period will focus on reconciling jurisdiction over forestry, fishing lodges, and “Protected Areas” (i.e., parks, conservancies, and ecological reserves) in a manner consistent with Haida Aboriginal title. Savvy businesses will likely stay abreast of developments in Haida Nation law and politics, just as they do for that of any other jurisdiction. The agreement creates certainty by recognizing the Haida Nation in its rightful place at the decision-making table.

Consistency with the UN Declaration and Canada’s Constitution

The agreement is consistent with the Constitution: it recognizes and affirms Aboriginal title as protected under section 35 of the Constitution Act, 1982. The Canadian constitution is a living document that can accommodate recognition of Haida jurisdiction in a manner consistent with the United Nations Declaration on the Rights of Indigenous Peoples (the “UN Declaration”). Canada and BC have both adopted the UN Declaration into Canadian law as the new paradigm for reconciliation.

Conclusion

This is the first agreement under which Aboriginal title is recognized throughout an Indigenous nation’s terrestrial territory. This is a major shift away from colonial practices. Such an agreement has been a long time coming. The Supreme Court of Canada has been urging Canadian governments to negotiate these agreements since the 1997 Delgamuukw decision. In the 2004 Haida decision, the Supreme Court said the Haida case for Aboriginal title over Haida Gwaii was strong and told Canada that it had a moral and legal duty to negotiate in good faith with the Haida. Negotiations, conducted with good faith and give and take on all sides, offer greater flexibility and control over the outcome than the litigation process. Negotiated agreements are an effective way to set out how Aboriginal title and jurisdiction will operate vis-a-vis asserted Crown title and jurisdiction, thereby advancing reconciliation.

The Haida Title Lands Agreement is a meaningful step towards reconciliation between the Haida Nation and the Crown, and it marks a departure from the provincial government’s longstanding practice of denying Aboriginal title. We hope it signals the beginning of a new era of negotiated Aboriginal title agreements.