Historic First Agreement Affirming Aboriginal Title in Canada

Boughton Law articling student Chelsea Gladstone delves into the recently announced agreement between the Council of the Haida Nation and the Province of British Columbia.

On April 14^th, 2024, the Council of the Haida Nation and the Province of British Columbia (the “Parties”) gathered on Haida Gwaii to sign the Gaayhllxid • Gíihlagalgang “Rising Tide” Haida Title Lands Agreement (the “Title Agreement”) marking the first negotiated agreement in British Columbia that provides for provincial Crown recognition of Aboriginal title and marks a significant advancement in British Columbia’s implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

Background

The Title Agreement is not a Treaty; it does not provide for the surrender, extinguishment or suspension of the Haida Nation’s Aboriginal title or rights to Haida Gwaii. Instead, the Title Agreement should be viewed within the framework of a longstanding dispute over land use and title to Haida Gwaii. Since 2002, the Parties have been preparing for litigation regarding Aboriginal title over Haida Gwaii. In 2004, the Supreme Court of Canada in Haida Nation v. British Columbia (the “Haida Case”) acknowledged the strength of the Haida Nation’s Aboriginal title to Haida Gwaii and emphasized that “negotiation is a preferable way of reconciliating state and Aboriginal interests.”

Since the Haida Case, the Parties have negotiated and signed several reconciliation-based agreements, reflecting their approach to addressing Aboriginal title to Haida Gwaii.

• In 2009, the Parties entered into the Kunst’aa Guu- Kunst’aayah Reconciliation Protocol Agreement which outlined differing claims of title over Haida Gwaii. On one side, the Haida Nation asserted its inherent Aboriginal title to Haida Gwaii, while on the other side, British Columbia claimed title to the same lands.
• In 2021, the Parties, along with the Government of Canada signed the GayGahlda – Kwah.hlahl.dayaa “Changing Tide” Framework for Reconciliation Agreement (the “Reconciliation Agreement”) which established a framework for negotiating the reconciliation of Aboriginal title over Haida Gwaii. The Reconciliation Agreement explicitly states that one of the main purposes of the agreement is to reconcile “pre-existing Haida sovereignty with assumed Crown sovereignty.”
• In 2023, the Parties, along with the Government of Canada entered into the Nang K̲’uula – Nang K̲’úulaas Recognition Agreement which recognized the Haida Nation’s inherent rights to self-government and self-determination and set out that separate agreements on topics such as Haida Title and Rights (as defined in that Agreement) may become constitutionally protected agreements.

The 2024 Title Agreement provides for the recognition and affirmation by the provincial Crown of the Haida Nation’s Aboriginal title to Haida Gwaii, as protected under section 35 of the Constitution Act, 1982—a provision not included in earlier agreements between the Parties. Following the signing of the Title Agreement, British Columbia enacted legislation through the Haida Nation Recognition Amendment Act to implement the Title Agreement, which received royal assent in the B.C. legislature on Thursday, May 16, 2024.

Key Points of the Title Agreement

In addition to formally affirming the Haida Nation’s Aboriginal title to Haida Gwaii, the Title Agreement provides a structured transition process, estimated to be 2 years, for the Parties to reconcile the jurisdiction and laws on Haida Gwaii in the following ways:

• Private Lands: The Title Agreement contains express provisions stating that the recognition of Haida Aboriginal title does not “alter or derogate from” existing fee simple interests on Haida Gwaii. With the express consent of the Haida Nation, the Title Agreement provides that all rights and interests linked to fee simple interests on Haida Gwaii will continue under British Columbia’s jurisdiction. This means that the Haida Nation has agreed not to enforce their Aboriginal title over fee simple interests. However, if fee simple lands on Haida Gwaii escheat to British Columbia or are transferred to the Haida Nation by a seller, then the Haida Nation may choose to remove those lands from the provincial Land Title system. In my view, the provisions of the Title Agreement that outline private land interests on Haida Gwaii ensures that Aboriginal title and fee simple lands will not be in competition with each other and this is a practical solution which addresses a current gap in the common law as Canadian courts have not clarified the relationship between fee simple and Aboriginal title.
• Local Governments: Existing local governments will continue to operate under provincial laws.  During the transition process, the Parties agree to collaborate with local governments to review local government boundaries and identify options and approaches consistent with the recognition of  Haida Aboriginal title.
• Public Infrastructure and Services: The Title Agreement provides that it does not affect the continued delivery of public services such as health, education, transportation, and emergency services on Haida Gwaii by British Columbia and local governments.
• Further Negotiations and Decision Making: The Title Agreement provides for the Parties’ to negotiate and seek to reach agreements on various matters relevant to the Title Agreement, including freshwater management on Haida Gwaii, fiscal arrangements, provincial taxation issues, and any other matters mutually agreed upon by the Parties.
• Federal Jurisdiction: The federal Crown (Canada), is not a party to the Title Agreement. Therefore, the Title Agreement does not address federal Crown interests on Haida Gwaii. The Title Agreement also explicitly states that the agreement does not change the existing relationships and legal arrangements between Canada or British Columbia and Village Councils (Old Massett Village Council and Skidegate Band Council) or their band members.

Dual-Approach to Aboriginal Title Issues:

The Title Agreement does not address all issues pertaining to Aboriginal title on Haida Gwaii. The recitals of the Title Agreement recognizes that the Haida Nation has extensive evidence to prove their Aboriginal title claim to terrestrial Haida Gwaii, with no overlapping interests of other First Nations and the Parties will make efforts to reflect the Title Agreement in the Haida Title Case which is scheduled to commence in 2 years. The Title Agreement expressly states that it is not intended to delay the commencement of the Haida Title Case for issues that have not been resolved through negotiation. Essentially, the Title Agreement allows the Parties to preserve a dual-approach so that any issues that aren’t resolved through ongoing negotiations and through the implementation of the Title Agreement can be settled in court.

Conclusion

British Columbia is home to over 200 First Nations, the majority of which have not entered into a treaty with the Crown or received a court declaration of Aboriginal title. In my view, the Title Agreement represents how cooperative negotiations outside of the Canadian court system can play a vital role in advancing the legal relationship between First Nations and the Crown for the advancement of reconciliation.

Our team is monitoring the ongoing implementation of the Title Agreement and its legal impact in British Columbia.