SpruceRoots Magazine - February 2000
Reconciling Differences and Inspiring Change
by Ian Lordon
In 1982, before the fight for South Moresby reached its peak, before Gwaii Haanas emerged scarred,wounded, but safely from the ring, a group of people were sitting at a planning table in Sandspit. At the table were representatives from government and industry, community members, environmentalists, and some Haida people. In fact, the table and the group assembled around it were not unlike many groups and tables we see on Haida Gwaii today, nor from the hundreds of groups and tables we've seen in the years between. But what's interesting about that particular table from June in 1982 is that Guujaaw decided to write about it in the Observer ...
"If you just sit in on one of the South Moresby Resource Planning Team meetings you'd probably not be able to tell the difference between the Western Forest Products, BC Forest Service and Provincial Parks representatives. You'd see some quiet government guys voting along with that gang; then you'd see Jack 'the fence' Miller representing YOU. Then you'd see JB - a mild-mannered, soft-spoken, weak-kneed environmentalist. You'd see the Fisheries and Eco-Reserves people once in a while, and one brown-skin who they don't take very seriously"
The rest of the story deals with the specific issues and proposals the group is examining: ghow, special management zones, development options, and so on. An interesting piece of history, and only more so because eighteen years later some things have hardly changed.
For instance, today Jack Miller and John Broadhead can both be found sitting at the Tlell Local Resource Use Planning table. JB remains a soft-spoken environmentalist, and Miller still represents you - but if he hasn't fallen off the fence already, he's teetering on the edge.
And Guujaaw? Well the people who fuss over these tables are taking this brown-skin a little more seriously . . .
In the few months since Guujaaw was elected president of the Council of the Haida Nation last fall, the CHN rallied unanimous support from the BC First Nations' Summit (the province's largest native organization), the First Nations' Congress, and the Assembly of First Nations (the national body for aboriginals in Canada) in its bid to prove aboriginal title on the Islands. The CHN launched a court case contesting the transfer of Tree Farm Licence 39 prompting government to walk from Interim Measures negotiations. And Guujaaw vows the CHN will not allow any resource issues to go unchecked during his term.
Of course Guujaaw is not solely responsible for these developments, but the simple fact that his presidency coincides with what may turn out to be a pivotal moment in the history of the Haida Nation means many of his decisions could have a profound effect on the future of his people. It is, he acknowledges, a tremendous responsibility but one he accepts because he doesn't bear it alone.
"Presidents and all elected people in the Haida Nation are not elevated into a position, they are lowered into position. The people direct the CHN, the CHN directs the president," he says. "I'd be happy doing other things, like getting out on the land more often, but we have to make sure we aren't the last generation to enjoy that birthright. I enjoy the fight and I don't mind taking it on for a while but we have a lot of capable people and I'll be involved anyway."
However long he works at the job, much of his time will be spent conferring with lawyers. The CHN is continuing a litigious tradition dating back to 1979 when Guujaaw and Chief Gidkun (Nathan Young) went to court to challenge the renewal of TFL 24 in Gwaii Haanas. Although the court allowed the renewal to proceed, it also recognized the standing of native trappers and hunter-gatherers for the first time in Canada.
"Courts are peculiar things," muses Guujaaw, "you don't have to win to lose."
He explains the CHN is resorting to court in order to exhaust all peaceful and lawful means to resolve the land use and ownership dispute. "I don't see court as the answer," he says, "just part of the process."
An example of this process at work came to a head in January when the CHN filed a court action against the province over the transfer of TFL 39, sold to Weyerhaeuser by MacMillan Bloedel in November.
"TFL 39 makes up about half of the logging on these Islands, it has the single greatest impact on the land, and the continual replacement of that licence could be the death knell to the interior of Haida Gwaii," he says. "We attempted to address this through negotiations, but the government still does not accept that we have a legitimate interest in what happens here."
The irony of the government's position is that the CHN's interest was already partly proven in court. The CHN contested the renewal of TFL 39 on the grounds that Haida title constitutes an encumbrance upon it. After proceedings in provincial court, the BC Court of Appeal, and BC Supreme Court concluded two years ago, the final word from the judiciary was that aboriginal title, if proven, does indeed amount to an encumbrance on the licence.
In order to deal with the decision's implications, government refuses to recognize Haida title and exploits this denial as a means of avoiding true reconciliation. This tactic has led the Haida to the conclusion that negotiating within the current framework will not yield any meaningful settlement.
"If you can't talk about issues like the transfer of a licence, and you can't talk about issues like the replacement of a licence," he argues, "opportunities are lost and there is little left to talk about."
But that conclusion comes at a price. Government negotiators hinted throughout talks with the Haida that any court action on the part of the CHN might compromise discussions and force them to walk from thetable.
"They shouldn't behave like that; these discussions will have to take place sooner or later," he says. "I'm sure we could have reached an agreement of some sort but if we're supposed to ignore the important issues in order to get agreement on the smaller matters then we have to accept that they walked and live with that. It's not worth sitting there while these big issues pass us by."
The decision to go to court over TFL 39 a second time seems to set the stage for a third courtroom battle to come, one which promises to be the most significant yet - the case for Haida title on Haida Gwaii.
"The title case has not been filed yet and the timing is important," but no more important than the case itself as its influence could extend well beyond the shores of Haida Gwaii. "A lot of people are depending upon us bringing this forward and winning it."
They are depending on the Haida because if the CHN can prove title they believe government would become more accommodating in treaty negotiations. They look to the Haida because the strongest case for proof of aboriginal title in Canada can be made right here.
Late in 1997, the Supreme Court of Canada defined what aboriginal title is and how to prove it in the Delgamuukw decision. The test for proof of title has two components: the land had to be occupied by the aboriginal people in question when the Crown declared sovereignty (1846 in BC), and the people had to have a substantial connection with the land.
The presence of numerous historical villages, huge numbers of culturally modified trees, merchant and naval ship logs documenting Haida occupation of the Islands, Hudson Bay Company records, Haida oral history, and many well-documented archeological sites all contribute towards a compelling case proving Haida occupation of the land in 1846.
"We will win," predicts Guujaaw. "Cut and dried."
Aboriginal title is unique in that it existed before the Crown and does not stem from the Crown or the court like all other legal title in Canada. But there is a catch. Aboriginal title as defined in Delgamuukw is not absolute. The court decided that neither Crown or aboriginal title enjoys full or clear title to the land or resources. Each is subject to the other's interest. This means that even if the Haida prove title, it will not constitute complete ownership of the land. It's a compromise, but one which Guujaaw feels is in the best interest of everyone concerned.
"The compromise is that we accept that we will make the accommodations with Canada rather than the U.S.A., Russia, or Japan - which are still options, and there are others - like decolonization," he says. "In doing this we negotiate the interface and co-existence within Canadian society."
Proving title will take more than compromise, it will also take time. And money. Any case to prove title will likely be contested and appealed all the way to the Supreme Court of Canada. Cases of this magnitude often last ten years or more, and ten years in court amounts to some serious legal bills.
"It's hard to prejudge how the courts will go," Guujaaw says. "If the Crown decides it wants to tie us up in all kinds of legal manoeuvering it could take longer, and they'll probably do that to increase our costs." Ten years may seem like a long time to wait for some sort of resolution, but compared to the status quo, he thinks it holds more promise.
"I don't think it will take that long; decades come and go. If we let things go as they are it's a longer, more predictable process. A downhill future, and one that is not acceptable."
Taking the title case to court will not only silence interim measures talks, but it also effectively ends any possibility of negotiating a treaty in the mold of the Nisga'a deal. "The province and the feds have been very deliberate in holding to a position that if there is litigation they won't negotiate. So it's kind of a mantra with them now," Guujaaw explains. He believes government is maintaining this position because it wants to funnel First Nations into the treaty process without having to ever deal with aboriginal title. "Basically they don't want to see anybody holding title, they want to see us tied up in treaty negotiations."
It amounts to a simple dilemma which breaks down this way: the only way to get title is to go to court and prove it because government won't recognize it. The only way to get a treaty is to stay out of court. It's one or the other, but not both. Guujaaw feels this is a mistaken approach to the question.
"We're aware of the compromise in aboriginal title, but negotiations are also a compromise. We won't be intimidated by threats or sanctions," he says. "If government wanted to do this honorably, title would be the basis for negotiations. If there was a forum outside of the courts to establish title there would be no need for this."
Treaty as it stands is no solution because it won't acknowledge title, and some of the assumptions associated with the treaty process aren't to the liking of the Haida Nation.
"The treaty process as it's set out now has preconditions laid out by the government," he says. "Things like selecting a small portion of your land and accepting a formula-driven cash component in exchange for title. With preconditions like that, there's no use even negotiating."
Can the CHN settle these issues in a fair and appropriate manner by proving title in court?
"It's not a matter of settling," Guujaaw says. "We're not asking the court to resolve any issues, only to clarify Canadian law and determine whether or not we fit their category of aboriginal title."
With title in hand, real negotiations can begin. And the uncertainty, the bitterness, and the struggle over the land can finally come to an end.
"The Crown routinely brings us into court. Over the last 50 years governments have tried to sever our ties with the land by restricting our activities, making laws, depleting resources, and things like that. We've reversed a lot of that, we've established some of our rights in Canadian law, but as we speak some of our people are before the courts in cases involving our rights.
Governments are still getting their way, resources are still being depleted, lands are still being spoiled. It's not going to get easy all of a sudden, it's going to be hard to retrain them," he says. "I think we can soften them up. Sooner or later everyone has to sit down and really figure out what needs to be done here. We either fight, surrender, or work things out and surrender is not an option for us."
In the face of the legal sway First Nations are beginning to enjoy, many other Islanders are understandably a little concerned by the ramifications that may be in store for them. Guujaaw appreciates this and the CHN has tried to maintain good relations.
"We want to see people comfortable and working together," he says.
"Generally we get along pretty good. We've all got our people with extreme views. It's easy enough to find things to fight about, the closer people get the more fault we see in each other. All of the communities have exhibited the will to work together as one Island community, and the people who live here have got to be on the ground floor in designing a future as it relates to their lives. We cannot condemn our kids to conflict."
Guujaaw says recognition of Haida title should not be cause for concern among individuals living on the Islands.
"People making their homes here should see this as an opportunity," he says, "governments and industry exploiting the land might feel threatened."
Part of the reason exploiters will feel the pinch is thanks to the limits the courts imposed on aboriginal title in Delgamuukw.
"The Supreme Court ruling says that there is an inherent limit upon aboriginal use of the land. Even though the rights include economic use, it can only be to the extent that it doesn't affect aboriginal rights," he says. "In order to protect aboriginal rights you can't spoil the rivers or the lands or deplete the resources. Management of everything including mining and logging is possible but only with those very careful considerations."
Which is something Guujaaw would prefer to see here anyway. Tempering the use of Island resources will restore some balance to the Islands ecology and provide security for generations to come.
"We should be able to live here assured that there will be resources and a life. The problem today is a lot of uncertainty and discomfort from being in a place where we see life being depleted around us and the land getting poorer. It's discouraging to live like that," he says. "We have to turn it around."
SpruceRoots Magazine - February 2000