Aboriginal title, as defined by the Supreme Court of Canada

Is a right to the land itself. It is more than the right to use the land, it can also compete with other proprietary interests like ownership, leases, and licences.

Can mean exclusive use and occupation.

Can include any form of activity including modern economic ones.

Can include mineral rights.

Is meant to protect the relationship between aboriginals and the land. It cannot permit uses or activities which will destroy the traditional aboriginal value of the land.

Is held by all members of an aboriginal nation, it cannot be held by an individual.

Is not absolute. It does not mean complete ownership of the land. Aboriginal title coexists with Crown title meaning neither party enjoys complete title to the land or resources. This coexistence gives rise to the necessity for consultation when land-use decisions concerning areas where aboriginal title may exist are made.

Is not for sale. It cannot be bought, transferred, or surrendered except to the Crown.

by Ian Lordon

HOW DO YOU SPELL PROTOCOL?

SpruceRoots Magazine - November 2002

SpruceRoots Magazine - February 2002

SpruceRoots Magazine - November 2002

Unity. Harmony.

Nice words. There aren’t many on the Islands who wouldn’t like to see them accurately applied to all of our communities, the members of our de facto Haida Gwaii family. And if most of our intentions bend earnestly toward these warm principles, reality breaks down into something closer to a tangle of pent, frayed, and restless brats in the back seat on an endless road trip, howling uselessly or embroiled in childishly imaginative turf wars with no stops for the can, or even a chance to stretch the legs.

If the scene in the back sounds familiar and unbearable, the front is worse. Behind the wheel is a cold, determined, terrifying figure. A reckless insatiable machine. Vaguely human, perhaps conjured from a dream or many dreams, it drives on without any need for rest. Without any need at all except an unchecked, unthinking need for speed.

Riding shotgun is the government. Shortsighted, but blindfolded so as not to notice any sign, hollering lame and compromised directions over the din from the back. Directions which go unheeded anyway. Somewhere down the road from the chaos which characterizes this frantic, hurtling ride, lies a destination as certain as the tides, as certain as the changing of the seasons, as certain as time itself:

Oblivion.

There really is a point to this long, melodramatic metaphor. It is that we on the Islands are not in control of our destiny. The people we’ve chosen to control it for us aren’t either. In fact, if anything controls our destiny, it is the market — the undiluted, unfettered law of supply and demand, and the market has already decided what it has in store for us. Impoverishment, in the form of unemployment, wholesale resource liquidation, and environmental degradation.

We have already seen the signs. The fishing industry which once flourished here and provided for Islanders is a fine example of what will follow in our forests. Over harvesting and poor management which eventually leads to a depleted resource and unemployment for industry workers.

The problem is that for too long we’ve allowed this trend to continue. Industry is addicted to profit, the province to revenue. Neither is prone to make the adjustments necessary to avert the looming and inevitable crisis. There is going to be a paring down of Haida Gwaii’s forest industry. This is not negotiable, it’s already begun. What can be influenced is the nature, manner, and timing of the rollback. Which is why we, our communities, our leaders, and ourselves, have to take matters into our own hands and plan a future if we want one.

Enter the Haida Protocol Agreement. In February, CHN President Guujaaw presented an invitation of sorts to the non-Haida communities on the Islands. The invitation took the form of a draft agreement and it basically offered the communities an opportunity to discuss how we might govern ourselves. These wouldn’t be hypothetical discussions either.

The CHN is determined to prove aboriginal title to Haida Gwaii. In March the process got underway when lawyers representing the Haida filed a statement of claim in BC Supreme Court launching the title case. If the CHN succeeds and Haida title to the Islands is recognized by the courts it will almost certainly include greater powers of self-government for the Haida. Powers which the Protocol Agreement suggests may be shared with non-Haida communities.

Of course a final court ruling on the Haida claim to aboriginal title is anywhere from five to ten years down the road. By then, assuming the management of Haida Gwaii’s forests remains more or less unchanged, there will be less forest to manage and fewer options to consider. This is the impetus for beginning these negotiations now.

For those who believe local people would be better off if they had greater control of local resources (presumably, given the emergence of ICSI and similar efforts aimed at empowering local communities, this includes the majority of Islanders) the Protocol Agreement represents the first step towards a new management regime with communities at the helm.

So what’s in this agreement anyway? Well, for the most part, things most of us already take for granted and a couple of things perhaps many of us don’t. The first surprise is the Haida invitation itself. In the past the Haida have only negotiated the future of Haida Gwaii’s land and resources on a ‘government to government’ basis. Meaning with the province or Ottawa, not with municipalities or local people.

The second surprise is that the agreement requires people on the Islands to recognize aboriginal title before these discussions can begin. This presents a problem. Mainly because in order to recognize a thing a person has to know what they are looking at, and aboriginal title isn’t really understood by most people outside the courts or First Nations. It’s also a problem because recognizing aboriginal title is something the Haida have been trying to get Ottawa and Victoria to do ever since the legislatures in both cities started making decisions about what happens on Haida Gwaii.

Yup, there’s some pretty heady, exciting stuff in that Protocol Agreement. Local people being asked to step into shoes usually worn by bureaucrats and full-time politicians, to begin resolving a centuries-old dispute, and to decide the shape of things to come on Haida Gwaii. All the things we’ve spent years clamoring for. But now that it may be within reach, are we really up for it?

The agreement is between the Haida and non-Haida people living on Haida Gwaii. It recognizes the mutual interests of both parties and suggests direction on how we can work together to satisfy those interests. The goal is to design ‘a future that will create a healthy environment with a sustainable Islands economy by harmonizing Crown and aboriginal title.’ In other words, unite local people and figure out how we can provide for ourselves while living in an atmosphere of harmony and mutual respect. Simple enough.

Okay, maybe not. Maybe it’s asking a lot from people who still squabble over where to put a hospital. Who are so fond of squabbling they wind up without any hospital at all.

For the past six months John Farrell has been intimately involved in the development of the Pro- tocol. Hired by the CHN to facilitate the discussions surrounding the agreement, he’s tracked and incorporated the responses of the non-Haida communities since the first draft was unveiled. He says progress towards a final agreement has been slow for a number of reasons.

“Only Port Clements welcomed the CHN’s invitation from the get go, the rest of the communities responded cautiously.” Farrell says the communities’ reservations are evident in the changes they wanted to see in the agreement. “Queen Charlotte, Masset , and Sandspit wanted the CHN’s view on residential property rights to be spelled out in the document. They were also concerned about the legal ramifications of recognizing Haida title before it is done through the courts.”

The question of property rights stems from fears on the part of some community residents who worry their land might no longer belong to them if Haida aboriginal title were recognized. Port Clements mayor Joan Ann Allen, wants those fears put to rest in writing.

“Personally I’d like it more spelled out." And unlike the majority of her fellow representatives on village council, Allen voted against supporting the Protocol until the issue is addressed. “ A guarantee that property rights will not be violated. We have to protect the property rights of our citizens, all our citizens.”

Guujaaw downplays the issue of property rights with assurances that no one will lose their house if the Haida succeed in proving title, although he says the CHN is reluctant to offer exemptions in the Protocol Agreement because community residents aren’t the only ones with private property on Haida Gwaii.

“I don’t think property rights are a big issue and they’re certainly not an issue for our people,” he says. “But there are private holdings owned by Weyerhaeuser and other companies that aren’t going to be looked at in the same way. We’re not going to give any blanket guarantees.”

As for the recognition clause, many of the non-Haida communities wondered if they were even capable of recognizing aboriginal title, and if they were what implications might accompany that recognition.

“The main concern was if we sign would we be excluding ourselves from the treaty process,” Area ‘D’ director Ian Hetman says. Because aboriginal title is an unfamiliar legal concept, many of the Graham Island Advisory Planning Commission members he spoke with on the issue felt out of their depth. “They felt that we were biting off more than we really understood. I want the wording to not exclude us from the treaty process.”

It so happens that the treaty process is irrelevant to the Protocol discussion because it requires First Nations to surrender their aboriginal title—the very thing the Haida are determined to establish in court. The Haida have made it very clear that as long as treaty talks are predicated upon surrendering aboriginal title they want no part in them. For the same reason Guujaaw insists recognition of Haida title is essential to the Protocol Agreement, a non-negotiable component from the CHN’s perspective.

“Recognition is the whole point of the protocol.” He says the Haida want recognition from the non-Haida communities in exchange for giving them the opportunity to have greater influence in local governance.” “Right now they’re limited in what they can do. Signing this agreement puts them in a way better position.”

But if the non-Haida communities are pleased with the way the Ministry of Forests and Department of Fisheries and Oceans are handling the management of Haida Gwaii’s resources, Guujaaw says they shouldn’t bother with the Protocol Agreement.

“If they’re satisfied with their lot then there’s really no incentive for them.”

Queen Charlotte Management Committee chair Carol Kulesha says that in itself the Protocol Agreement is a straightforward document, but the questions it raises and the concepts it deals with are more elaborate. So much so she feels it will take time before the communities are comfortable with it.

“When it first came out it didn’t seem like a big issue, it was ‘we all want to work together’ and it was fairly simple,” she says. “As time went on and questions unfolded it became more complicated. We want to have a better understanding of what aboriginal title means now, and what it means in the end.”

While our local elected leaders wrestle with the potential implications of recognizing aboriginal title, off-Island there are no shortage of clear opinions. The Fraser Institute’s Gordon Gibson for one is convinced recognition of title by local communities will not impact the legal status of the Haida claim.

“I very much doubt it would have anything in the way of legal consequences.” Gibson argues the non-Haida communities have about as much influence on the outcome of a title decision as they do on the result of last year’s Stanley Cup Final. “The proofs of title are all in the past.”

Gibson suggests the only real fallout from the Islands’ non-Haida communities recognizing aboriginal title would be to perhaps provide the Haida with another card at the negotiating table.

“From a moral and strategic point of view it very clearly would have an effect in that the Haida could say the people who live here support the claim,” he says. “It would be a useful element in their bag of tricks, but I doubt the federal or provincial government would be very swayed by it.”

Jessica Clogg, a lawyer with West Coast Environmental Law, agrees.

“My first take is that it would have no legal significance, it’s an expression of respect,” she says, noting that any significant developments would only occur after title is recognized by the communities. “The more interesting question is what does it mean if the municipalities do recognize aboriginal title? It would certainly be contradictory to the position the province is taking in court.”

Recognition would probably raise eyebrows in Victoria, but more importantly it sets the stage for a groundbreaking approach to native land claims and grassroots resource management. In the context of a Protocol Agreement, Clogg sees recognition by non-Haida municipalities as the beginning of a new relationship.

“My sense is that the parties would be acknowledging that they are starting on a new footing.” And if the non-Haida communities establish that new relationship before they are legally obliged to, Clogg suggests they should also be asking themselves what they would like from the Haida in return. “If the Haida case against the province goes to court, you as a local community have no control over what the content of that decision will be. If you have a Protocol Agreement about what that actually means, then you have certainty. I think they should take aboriginal title as a given and try to get certainty on the issues where they need it.”

Obviously, the certainty most non-Haidas covet pertains to the future of their property and the CHN is moving to address that. John Farrell says the next draft of the Protocol will likely include some language offering security for residential property but will stop short of a blanket exemption.

As worried as locals might be about their homes, most aren’t concerned about what ramifications Haida aboriginal title might have in store for Crown land, particularly those areas under lease or licence to forest companies. In fact, many welcome the changes they imagine might accompany a new regime in Haida Gwaii’s forests, especially one involving a partnership among all local communities.

“I spoke to people from Area ‘D’ and they were positive about it,” Hetman says. “For the most part people like the principle but they realize they have to be careful about it.”

And there are still strong reservations from some about the process surrounding the development of the Protocol to date. Masset’s Nick Grosse feels the public hasn’t been involved enough in the discussions surrounding the Protocol, particularly since it has such significant implications for Islanders.

“The dialogue did not happen, there was no spontaneous forthcoming on either side,” he says. “The only way to advance the thing is through open and free discussion.”

Grosse is concerned that as the Haida gain more control over local decision-making they may begin excluding the Islands non-Haida communities in much the same way the provincial and federal governments have. He views the lack of public dialogue as evidence of this.

“Guujaaw came out of his house and said ‘hey guys this is how things will be run in the future.’ Guujaaw should remember what it’ was like not to have a voice in these affairs.” Grosse figures the reason the local public doesn’t know or care about the Protocol is because they haven’t been invited to participate. “The general public doesn’t give a hoot about what is happening or what’s going to happen because they don’t feel like they’re going to be involved in the process anyhow.”

One explanation for the lack of public debate so far may be that there is still plenty of work before the CHN and non-Haida communities produce a draft agreement everyone feels comfortable with. Masset mayor Barry Pages agreed that few people have taken an interest in the process, but that’s because it’s only just begun.

“It’s still in its infancy,” he says. “Not too many people have been involved in the meetings. We sent a reply to their original agreement with comments on some of the issues we could live with. From my perspective it’s in the CHN’s hands now.”

The Protocol has actually matured a little over the last six months. Now in its third draft, the agreement needs review from the public in order to ensure the final document accurately reflects their ambitions. And John Farrell is convinced the public is prepared to do just that.

“People keep telling me they’re ready to act on these issues,” he says. “The Protocol is the instrument to harness the will of the people.”

Of course, whether or not that turns out to be the case will depend upon the reception the agreement receives from people once they’ve had the opportunity to examine it in detail.

One thing, at least, is certain. If islanders are serious about gaining greater control over local land-use decisions and exercising that control together, some kind of formal understanding among all the communities is a prerequisite.

The Haida clearly will not negotiate any form of all-island governance which does not recognize their aboriginal title. This leaves the non-Haida communities, on the surface at least, with a straightforward decision: Either cast their lot with the province or with their neighbours. It’s a decision Masset’s Art Lew says is an easy one, provided it cuts both ways.

“If we truly believe in an Islands community, our non-Haida communities have no choice but to recognize Haida title,” he says. “On the other hand, the Haida must also recognize the non-Haida citizens as being an integral part of the Islands community.”

This, in a nutshell then, is what the Protocol Agreement is all about. It’s about recognizing our individual and mutual concerns and providing a framework to address them, all while respecting one another. If the Islands communities can actually develop a draft everyone supports, then the real work can begin. Instead of hollering at each other in the back seat the communities on Haida Gwaii can leave government and industry sitting on the side of the road, settle into the front, and finally decide which direction we all want to go.

Or at least fight over the wheel… •

SpruceRoots Magazine - November 2002