SpruceRoots Magazine - February 2002

SpruceRoots Magazine - April 2002

Walking the Writ - L-R - Amos
Setso,Terri-lynn Williams-Davidson
nd Nika Collison on their way to
file the Haida Title Writ in BC
Supreme Court, Vancouver, BC.

Negotiating Coexistence

by Ian Lordon

Like most of British Columbia, Haida Gwaii has yet to reconcile the future of the land with its original inhabitants — the Haida people.

With a few notable exceptions, most recently the Nisga’a, the majority of First Nations people in BC never relinquished their assertion of title over the land through treaty, conquest, or other means. In spite of this, over the centuries the vast confederation of provinces and territories that we call Canada sprung up around them, bringing foreign laws, industry, and settlers along with it.

The Haida have fought for recognition of their title at the bargaining table and in the courtroom for decades without the desired result, all the while maintaining an at times uneasy relationship with the governments competing for sovereignty over their territory. The circumstances led to some unusual compromises, but no lasting solution. One example is the Gwaii Haanas National Park/Haida Heritage Site, a nationally protected area occupying the southern half of Moresby Island, whose very name aptly illustrates the long-standing dispute over sovereignty on the Islands and its lack of a satisfactory conclusion.

The Haida are represented by the Council of the Haida Nation, the contemporary governing body of a people formerly ruled by each of its villages’ hereditary chiefs. Although most of the villages once populated by Haidas are now slowly returning to the earth, the descendents of the people who ruled them are still recognized in Old Massett and Skidegate, and continue to exert influence over the affairs of the nation.

The courts have steadily taken steps to define the relationship between the two authorities here through several precedent-setting decisions reached after disputes between the Crown and non-treaty First Nations wound up before the bench. Among modern rulings, none has greater implications for relations between First Nations and the Crown than Delgamuukw, released by the Supreme Court of Canada in December 1997.

Delgamuukw did not end the conflict between First Nations and the Crown, it attempted to define the terms under which the conflict might be settled, and it went a long way towards leveling the playing field at the negotiating table by recognizing Aboriginal title’s legitimate legal status and the degree to which it must be accounted for in land use decisions which affect disputed territories. The decision also reiterated and clarified many Aboriginal rights already accorded to First Nations through enacted legislation and earlier court rulings.

Rather than granting title of the land solely to Aboriginals or the Crown, in Delgamuukw the Supreme Court chose to draw a compromise. The court said Aboriginal and Crown title coexist, that Aboriginal title is inalienable and can only be extinguished if it is surrendered to the Crown through treaty or other means. The idea of two competing forms of title with authority over the same land advanced in Delgamuukw is not only confusing, it also represents a significant concession to those who believe that Aboriginal title is absolute. It may, however, be a necessary one given the realities of contemporary society.
“We’re aware of the compromise in Aboriginal title, but negotiations are a compromise,” CHN president Guujaaw said. “The compromise is that we accept that we will make an accommodation with Canada. In doing this we negotiate our interface and coexistence with Canadian society.”

Unfortunately in the years since Delgamuukw first appeared on Canada’s legal landscape, it has not had the impact on government/First Nations relations many pundits predicted it might. The Supreme Court hoped the decision would steer the Crown and First Nations away from the courts towards a more balanced negotiating table— the appropriate forum to come to terms with coexistence. This hasn’t happened. The problem, according to Guujaaw, lies in government’s refusal to voluntarily recognize First Nations’ Aboriginal title as it is defined in Delgamuukw and negotiate on those grounds.
“If government wanted to do this honourably, title would be the basis for negotiations.” The foul irony is that at the very same time government refuses to acknowledge the existence of Aboriginal title, it insists First Nations relinquish any claim to title when negotiating modern treaties— a game of ‘now we see it, now we don’t’ with the future of First Nations people at stake. “The treaty process as it’s set out now has preconditions 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.”

In light of government’s refusal to recognize Haida title and deal with its implications, the CHN is left with only two options: go to court and prove title, or, go to war. Court, to most, is the preferred option. Although if anything can make war appealing, the great expense, work, and time involved in a case of this magnitude might make the second option seem more simple and more satisfying.

Delgamuukw, as much as it was intended to move these issues out of the courts and onto the bargaining table, has in the case of the Haida accomplished quite the opposite. Because the Haida lived and continue to live in a defined area with ample archeological evidence of a long and uninterrupted occupation, they are in a unique position to prove Aboriginal title by meeting the conditions for doing so laid out in Delgamuukw. If the Haida succeed it will set a precedent the rest of BC’s non-treaty First Nations will find much easier to follow.
“A lot of people are depending upon us bringing this forward and winning it,” Guujaaw said. “We will win, cut and dried.”
Win or lose the wheels were set in motion amid a great deal of fanfare and media attention when lawyer Terri-Lynn Williams-Davidson submitted the writ of summons launching the CHN’s title case in BC Supreme Court on March 6th.

“I’m happy we’ve begun the process,” she said. “It’s very exciting to finally be bringing forward the case that many people have been waiting for.”

Due to the scope, complexity, and implications of the title case both sides will need plenty of time to prepare for it, meaning the court won’t begin hearing the case before 2003. Once underway, Williams-Davidson expects the trial itself could carry on for months.

“It’ll be a long trial,” she said. And after it’s over, regardless of the outcome, there will almost certainly be appeals assuring years of litigation before a final decision is reached. The uncertain status of disputed land on Haida Gwaii and elsewhere in BC, unlike the title case, won’t be resolved after a Supreme Court of Canada ruling. Should the Haida win and succeed in proving Aboriginal title to Haida Gwaii, the governments of Canada and BC will still be obliged to negotiate some kind of reconciliation between their respective titles. In other words, a Haida victory will likely strengthen their negotiating position but won’t necessarily define what practical implications Aboriginal title will have in store for the Islands or Haida people.

“I don’t see court as the answer, just part of the process. [A title case] would only clarify Canadian law and determine whether or not we fit their category of Aboriginal title,” conceded Guujaaw. “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.” •

SpruceRoots Magazine - April 2002