A Haida elder and members of a youth group paddle a canoe in Gwaii Haanas National Park, in 2012. The Haida, B.C. and Ottawa signed a deal in 2024 formally recognizing Haida Nation’s Aboriginal title to Haida Gwaii.John Lehmann/Globe and Mail
An agreement between the Haida Nation and the federal and provincial governments has been given court approval, cementing the nation’s Aboriginal title to all one million hectares of Haida Gwaii, once known as the Queen Charlotte Islands.
Private landowners have been assured that there will be no changes to their ownership status, but the transition of governance over Crown-land tenures and parks on the archipelago off B.C.’s north coast is still being worked out.
What has changed for the Haida is that they no longer have to prove that their Aboriginal title exists.
The Haida, B.C. and Ottawa signed the deal in April, 2024 with great ceremony, but it wasn’t until Justice Christopher Giaschi of the B.C. Supreme Court endorsed it on Sept. 5 that the nation’s leadership truly celebrated.
The unique pact is not a treaty nor a conventional land-claims agreement, and without the court order, it existed in a legal grey area that the Haida feared could be undone by subsequent governments in Victoria or Ottawa.
“This order ensures that our title to the Haida Gwaii lands is firmly recognized and affirmed and protected under the Canadian Constitution,” Haida Nation president Gaagwiis (Jason Alsop) said in an interview Wednesday.
Court ruling on Indigenous claim creates uncertainty around land ownership
The Supreme Court of Canada legally defines Aboriginal title as “the right to exclusive use and occupation of land.”
To prove Aboriginal title, it says, “a group must establish that it exclusively occupied the land in question when the Crown asserted sovereignty over the land.”
The Haida agreement, and the B.C. court, have left the mechanics of implementation to be worked out over a span of two or more years. And the deal is proceeding as courts in British Columbia and New Brunswick are considering whether Aboriginal title takes precedence over the fee-simple title of private-property owners.
In contrast, the Haida agreement, negotiated outside court action, includes a commitment from the Haida to leave privately owned lands unchanged and under B.C. authority.
It sets out that recognition of Aboriginal title will not alter local government jurisdiction and bylaws on Haida Gwaii. And, it says public services including highways, airports, ferry terminals, health care and schools will not be affected. Residents will continue to receive municipal services and pay property taxes in the same way they do today.
Governance over the existing Crown-land tenures and protected areas are being negotiated in a process to reconcile Haida and provincial law. In the 17 months since the pact was signed, there have been no meaningful resolutions under that transition process.
“On the ground, you probably don’t see many obvious changes at this time,” said Gaagwiis. “And that’s kind of how it’s designed, to provide clarity and certainty of services, and to work through this together, to reconcile our jurisdictions.”
He said the agreement included assurances about private lands to demonstrate the Haida’s respect for their “friends and neighbours” who make up a little more than half the population of Haida Gwaii.
“We think we found a creative solution for fee-simple lands that brings certainty for everybody.”
Since the Haida agreement was reached, courts in New Brunswick and B.C. have wrestled with the issue of private-property rights and Aboriginal title.
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In New Brunswick, the members of the Wolastoqey Nations are in court seeking a declaration of Aboriginal title to lands covering more than half of New Brunswick, including privately held forestry lands. Justice Kathryn Gregory of the New Brunswick King’s Bench ruled in 2024 that Aboriginal title continues to exist on lands even when those lands are subject to fee-simple interests, a ruling that is now under appeal.
In B.C. Supreme Court, Justice Barbara Young upheld the Cowichan Tribes of Vancouver Island claims to a portion of land in Metro Vancouver, and in her Aug. 8 ruling found that Aboriginal title is “a prior and senior right to land.”
That decision is being appealed, and Premier David Eby has raised concerns that the court has put certainty for private-property owners at risk.
Louise Mandell, a partner in the Vancouver law firm Mandell Pinder LLP who has represented the Haida in the courts since 1985, said those court decisions don’t change what is happening on Haida Gwaii. Fee-simple title remains registered in B.C.’s land registry office, “and what the agreement says is, we’re not disturbing that.”
She said implementation can begin in earnest now that the consent order has been signed and filed. “There’s nothing that can now be undone.”
The Sept. 5 consent order was issued after all three parties to the agreement asked the court to provide a legally binding declaration of Aboriginal title.
A leading expert in Indigenous law in Canada, Thomas Isaac of Cassels Brock & Blackwell LLP, said the province and Ottawa should not have proceeded with the consent order, because of the uncertainty created by the Cowichan decision.
“This is new ground. And I don’t believe it’s in the public interest for us to be treading on brand new ground when we don’t have guidance from the highest court in this country yet on what this may mean,” he said.
In her decision on Cowichan, Justice Young wrote that the Land Act provisions that govern fee-simple title do not apply to Aboriginal-title lands. “A precedent that will follow from this case is that provincial Crown grants of fee-simple interest do not extinguish nor permanently displace Aboriginal title.”
Spencer Chandra Herbert, B.C.’s Minister of Indigenous Relations and Reconciliation, travelled to Haida Gwaii this week to work on implementation of the agreement.
He would not comment directly on the Cowichan ruling, as his government is appealing the decision. But he said the Haida agreement is a better way to achieve certainty over the land base.
“Yes, there is Aboriginal title, but the Haida were very clear, as were we, that private-property rights still very much exist and are very much part of the system.”