Vaughn Palmer: Haida ‘landmark’ unlikely to be used by rest of country

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VICTORIA – Premier David Eby was in a self-congratulatory mood Sunday at a signing ceremony in which the province recognized Haida Aboriginal title over the entire Haida Gwaii archipelago.

“A milestone that has been more than 20 years in the making,” Eby said, calling the deal one of the highlights of his life. “It will also be an example and another way for nations, not just in British Columbia but across Canada, to recognize his title.”

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Not likely, given the still-undefined implications of the agreement between the province and the Haida Nation council.

The 12-page agreement is unique, as are the circumstances that allowed it.

“Haida Gwaii is a unique place,” as Indigenous Relations and Reconciliation Minister Murray Rankin acknowledged earlier this month during an interview with CBC Daybreak North’s Carolina de Ryk.

“Almost 50 percent of its residents are Haida. Unlike other parts of the province, there are no overlaps. Everyone knows that the territory is the traditional territory of the Haida people. “The Haida Nation Council has been the governing body for 50 years.”

The same is not true for the other 200 indigenous nations in British Columbia. Overlaps abound, giving rise to countless uncertainties about where one nation’s traditional territory begins and another ends.

The Haida approach is also not transferable to other Canadian provinces, where treaties are more common.

“This agreement is not a treaty,” the text says, “but it is part of a reconciliation process.”

The agreement signed Sunday in Skidegate is simply the starting point for the “real work” that is to come, according to Gaagwiis Jason Alsop, president of the Haida Nation council.

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The work ahead will involve “the Haida Nation articulating our laws, our ancient laws in a current context… and negotiating with the province what that will look like as we implement our laws and whether ours will work with their laws. That is the work of the next few years,” Alsop said.

The priorities for the first two years of talks are land management, protected areas, forestry and fishing lodges.

The text of the agreement signed Sunday places emphasis on “transferring ownership and jurisdiction of Crown lands from the Crown to the Haida Nation. “Land and resource management decisions on Haida Gwaii, under provincial jurisdiction, will be made in a manner consistent with Haida Aboriginal title.”

Talks about taxes, fiscal agreements, limits on local government, compensation for land and resources taken by the province, and other issues are still to come.

In the event the province and Haida Council cannot reach an agreement, there will be a mechanism to resolve disputes. “It may include mediation, arbitration, Haida tribunal, or other mechanism established under Haida law.”

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If that doesn’t work, then presumably the parties could find themselves back in court, even though Eby and Rankin claimed the province was turning its back on litigation as a way to resolve land and resource disputes.

Aside from the supposed end to litigation, the New Democrats say the settlement has no implications for private property owners on Haida Gwaii.

“The draft agreement is clear,” they said in an open letter to island residents last month. “Recognition of Aboriginal title will not affect anyone’s private property or the jurisdiction and statutes of local government on Haida Gwaii. “It also confirms that provincial laws continue to apply.”

The government’s version has been disputed by Thomas Isaac, an Indigenous law expert at the Vancouver-based office of Cassels LLP.

“This announcement raises important questions about the implications of recognizing Aboriginal title in a contract versus a treaty or land claim agreement.

“It also raises concerns about the legal consequences of the recognition of Aboriginal title over privately owned land, and the effects of such recognition on the property rights and economic interests of private parties,” Isaac and two associates wrote in a statement published in the firm’s website.

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In its interpretation of the agreement, the province has created “even greater uncertainty by creating a version of Aboriginal title that, to date, is unknown in law.”

Rankin says the province will introduce legislation to strengthen the agreement in the remaining weeks of the spring session.

“No private property that exists on Haida Gwaii will be affected at all,” he told CBC. “And we have a tremendous amount of legal opinions that will say that’s the case.”

It is not the first time that the province’s legal opinions will be subject to doubt by the courts.

It has become a particular vanity of Ontario-born Eby to claim that his government is blazing trails for the rest of the country.

But no other jurisdiction is following BC on decriminalization. Their housing plans have so far produced the least affordable housing in the country. And the BC NDP is increasingly isolated when it comes to the carbon tax, with even the party’s national leader expressing doubts about continuing down that path.

Rather than follow BC’s lead in the agreement with the Haida, other provinces will likely wait for the text of a final agreement or, better yet, a treaty.

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