Last year, the provincial and federal governments recognized Haida Aboriginal title over the entire one million hectares of the Haida Gwaii archipelago, and this summer, the BC Supreme Court entrenched that title declaration into constitutional law.
Remarkably, this groundbreaking, precedent-setting Aboriginal title development did not result from a long and detailed court case that carefully considered all evidence of Haida historical occupation of land as of 1846. Nor did it stem from properly applied and established constitutional legal tests for Aboriginal title, as set out by the Supreme Court of Canada.
In fact, the declaration of Aboriginal title emanated entirely from politically partisan negotiations between the B.C. government and the Haida Nation – passed into provincial legislation in 2024 and rubber-stamped by the federal government – without any public input at all. Then, at the encouragement of both upper levels of government, the Haida quietly asked the BC Supreme Court to affirm these outcomes by consent Order, which effectively cements them into constitutional concrete.
And while the two senior levels of government could have applied the principles of constitutional law properly to inform their negotiations recognizing Aboriginal title, they clearly did not. If they had, it is highly unlikely every square centimetre of terrestrial Haida Gwaii land, foreshore and seabed would have been found to be Aboriginal title land.
While there is a Haida court case still underway, it will no longer consider the question of the geographic extent of Aboriginal title on Haida Gwaii. Instead, it will likely deal with a potentially massive Haida claim for damages against B.C. for all historical provincial actions that have affected any land on Haida Gwaii – even though many of those actions may have occurred on lands to which Haida had no sound basis for a section 35 constitutional claim of Aboriginal title at all.
Negotiations breach public trust, bypass treaty process, constitutional law
What has occurred on Haida Gwaii is not only a gross breach of public trust but also, until recently, an entirely secret and highly partisan double bilateral political subterfuge.
When asked this week about the BC NDP’s secretive approach to land title agreements and at what point he thought the public should be brought into discussions, B.C.’s Indigenous Relations minister sidestepped the question and declared the work by the treaty commission was “a great example” of the B.C. government working with local governments and communities. “You’ve got to be doing this together,” Spencer Chandra Herbert said without any detectable irony.
But with the Haida negotiations and other unfolding Aboriginal title agreements, the B.C. government very much did not work together with the public.
Among the more egregious outcomes of this so-called “negotiating” process is the growing irrelevance of treaty-making in this province.
The B.C. government’s approach to reconciliation under Premier David Eby allows a First Nation to bypass the much more laborious, years-long negotiations of a well-thought-through and balanced treaty undeniably in the public interest. Under government’s direction, negotiations instead go straight to a politically motivated, unbalanced recognition of title to the entirety of claimed traditional territory. And alarmingly, this recognition of Aboriginal title includes private lands.
The Haida declaration would never have resulted from the BC treaty process, or, more importantly, from an application of constitutional law requirements and a full and comprehensive trial process. The Haida were likely fully aware of this when they summarily rejected the treaty process some years ago and negotiated their way out of the most legally fraught part of their court case – having to prove the geographic extent of their Aboriginal title according to Canadian law.
Why settle for a balanced treaty land settlement over a small portion of Haida Gwaii, or take a chance with case law unlikely to support the title claim in its entirety, when political negotiations with the BC NDP promised 100 per cent of the claim, and to shut out the public entirely?
Haida Gwaii is the ‘template’
According to the Premier, the outcome on Haida Gwaii is a “template” for the art of what is possible throughout British Columbia.
Presumably the next secretly negotiated territorial Aboriginal title declaration will roll out in northwest British Columbia or perhaps on the Sunshine Coast. In all likelihood, neither will bother with evidence of historical occupation as required for recognition of Aboriginal title under Canadian law.
To clarify the magnitude of the government’s massive breach of the public interest, a very large percentage of Haida Gwaii was provincial Crown and federal public land prior to the Haida Gwaii land title agreement. About half the population of the island is non-Indigenous, many of whom live on private lands, which once had clear legal titles. Haida reserves make up the remainder.
Instead of exempting private lands to ensure absolutely clarity in their protection, fee simple (private property) title is now subject to Aboriginal title. While this same private property is allegedly shielded from Haida exercising control or expropriation, the protection provision is a legally suspect contract confirmed in equally constitutionally suspect provincial legislation. No further private title protection than that was offered by either of the upper levels of government, or the BC Supreme Court when it recently confirmed recognition of Haida Aboriginal title.
As far as the public interest in formerly public lands on Haida Gwaii is concerned, it has been eradicated in the blink of an eye. Crown land ceases to exist where an Aboriginal title is declared under section 35 of the Constitution Act, 1982.
All done with no public mandate or input from citizens at large.
British Columbians should now be prepared for Premier Eby’s “template” to roll into their part of the province – rather like a circus with no audience allowed in the big tent.
Unfortunately, you will know nothing about it until you suddenly discover secret “government-to-government” negotiations have resulted in the province recognizing Aboriginal title over what you thought was your private property or your publicly accessible provincial park.
Premier chastizes court for ignoring ‘real people,’ after doing the same in Haida title agreement
Recently the premier announced his government’s intention to defend private property rights and appeal the recent Cowichan Tribes decision that recognizes Aboriginal title over private fee simple title.
“These are profound issues that are hard to consider in the absence of the real people … I want the court to look into the eyes, metaphorically speaking, of the people who will be directly affected by this decision and understand the impact on certainty for business, for prosperity…,” Eby said recently.
Yet it was his government that arbitrarily negotiated Aboriginal title over public and private lands on Haida Gwaii without any meaningful input from those “real people” whose interests he now purports to champion.
Make no mistake, it is real people who are being dispossessed of their public land interests. And it is those same citizens who have had their private land rights thrown into legal question, with their only protection from Haida expropriation a breach-able contract to which they are not signatories.
The Eby government’s so-called reconciliation agenda is in fact an ideological social experiment rooted in its radical interpretation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), a doctrine that is undermining public and private land interests in this province.
It’s time to halt this dangerous experiment before B.C. negotiates away massive portions of the B.C. land base, cementing Aboriginal title in constitutional concrete forever, with absolutely no involvement of the larger public at all.