Its been several years since the provincial, federal and Haida governments have engaged in any kind of meaningful treaty discussions. Consequently the Haida have bypassed the BC treaty process in favour of the courts where they intend to prove their claim to aboriginal title over all of Haida Gwaii. The opening volleys in that legal battle were fired last year when the Haida filed their statement of claim in BC Supreme Court in November. Then early this summer the province fired back with a statement of defence that not only denied all the Haida claims, but also their very existence as a people.
Yet despite this cold and even hostile state of relations the provincial government stunned many observers early this fall when it very publicly offered the Haida 200,000 hectares of land on Haida Gwaii, encompassing all of the Council of the Haida Nations declared protected areas, if they would set the title case aside and return to the negotiating table. The offer was extraordinary in that it was made without the participation of the federal government and therefore did not provide for fishing rights or address marine issues like offshore oil.
The Haida refused the offer. CHN president Guujaaw immediately dismissed it as mischief-making. After the offer failed to spark a return to negotiations BC Attorney General Geoff Plant, one of the architects of both the offer and the Crowns defence in the title case, then threatened to begin making land-use decisions on Haida Gwaii that might not be so considerate of Haida concerns as they previously had been.
Spruceroots recently caught up with Plant by telephone between sessions of the legislature in Victoria.
SpruceRoots: Why did the province elect to make this offer now?
Geoff Plant: Weve had no success making progress at the Haida treaty table for eight years and we thought it was time to see if we could do something bold that would generate enough interest to get the treaty process going again with the Haida, and I think its also fair to say that part of the consideration around timing was that we have had increasing challenges with respect to land and resource use decision-making on the Queen Charlottes. That stems from the fact that theres an unresolved difference between the Haida and the province about who has what rights. And the best way to get resolution on those issues is at the treaty table. So it seemed to me to be the right time to try and kick start that treaty table.
SR: I noticed that you keep saying you want to bring them back to the table, does that mean this is best offer the province is going to make or is there still room to negotiate?
GP: What I have said is that we have responded to what we understand is the traditional primary interest of the Haida, which is land, by putting a large land-only offer on the table. The total of 200,000 hectares represents a maximum and not a starting point. Within the 200,000 hectares our proposal is that half of the land would be fee-simple and half of the land would take the form of other arrangements. Everything from co-management to forest licences to perhaps revenue- sharing, there are many other ideas. Theres lots of room for negotiation within the 200,000 hectares in terms of which parcels of land might be held in which way. And the second general point is that if the Haida come to the table and say that they want something other than or in addition to land and resources then we would certainly be willing to negotiate about those things, but they would all represent offsets against the land offer, not increases to it.
SR: The press release says the offer stands for six months, what happens once the deadline passes if the Haida dont accept?
GP: Well Im still hopeful that one way or another were going to get into a more constructive treaty process with the Haida. I think that if the Haida dont accept then we will have to go about our business as government and discharge our obligations to consult and accommodate with respect to aboriginal rights and title to the best of our ability but also do what we can to make sure that we make land and resource decisions that also provide a benefit for the non-Haida residents of the Charlottes.
SR: One of the things that struck me was that the offer was made without any participation from the federal government
GP: And thats very unusual.
GP: But it represents, or it was implied when I said it was time to do something bold. And that meant in this case that we wanted to send a strong signal about our willingness as a province to put a significant amount of land on the table to generate interest in the treaty process. Its not something that I would say was likely to happen very often but then when you look around the province there are lots of tables where were making good progress and this was not one of them so it was time to try and create something different here.
SR: Have you heard back from the federal government about the Haida offer?
GP: I think it would be fair to say that what I have seen from correspondence is that the federal government is broadly speaking sort of neutral on this. I think you would find that federal negotiators would be delighted if this were successful in getting the Haida back to the table. I think you would also find that they would say that they dont think the process is going to succeed if individual parties make unilateral offers on a regular basis. To which my answer is yeah, well we dont intend to do that, this was a unique situation, and we felt it called for a unique response.
SR: How come there wasnt any discussion with the Haida when the offer was made?
GP: Well weve had no serious treaty negotiation context within which to talk about this with them. But having said that there have been informal discussions with the Haida and over the course the summer it was understood that the Haida had an expectation that the province was going to put a significant proposal together and thats what we did. We didnt give them a whole lot of advance notice about the details of the proposal, but again we wanted to send a bold signal. These are for the most part negotiations where youre trying to make progress together. And when I say for the most part I mean around the province. Its not the same situation at the Haida table. The Haida table was one where we couldnt get past stage two in the treaty negotiation process so we felt it was time to do something a little different that would show that we are serious about doing something that would create more of an economic opportunity for the Haida and that would also represent an affordable and fair and equitable settlement for everybody. The fact is that while the Haida believe strongly that they have legal rights, there is a difference between the Haida and the provincial government over that assertion and the question was why cant we sit down and see if we cant put some land on the table and make a real difference in the lives of Haida people?
SR: Right. Now you offered the Haida twenty percent of their traditional territory as opposed to the five the province has put on the table before other First Nations around BC, why the exception here?
GP: Well first of all its a land-only package so anything that is added to it like cash, if that is what is wanted, would be an offset against that. Second I think its fair to say that land in different parts of the province has different values. We dont do that kind of a percentage calculation, what we do is try to figure out what would represent a fair and reasonable and affordable treaty proposal and in this case if the only element in a comprehensive final agreement with the Haida is land then that would make the Haida offer a comparable and equitable offer when judged against other offers. You know what I say to First Nations who want to look over their shoulder at somebody elses proposal, I say make up your own mind about what you want for your community and when youve done that do the best you can to negotiate an agreement that works for you, and dont spend too much time worrying about your neighbour. Because we are trying to be as fair as we can across the province but the ultimate judge of whether an agreement is fair to a First Nations community is going to be the members of that community.
SR: I understand that discrepancy has caused you a bit of trouble with other First Nations.
GP: I have heard the argument made that there is an issue out there, but what Ive tried to explain is why in my view it would be wrong to take the Haida offer out of its context.
SR: Theres been some speculation that the discrepancy might be because you guys want the title case to go away. After all, one of the conditions of the offer was that Haida put all legal action into abeyance.
GP: That does not explain anything about the amount or quantum of the offer. As a general matter it is hard to negotiate and litigate at the same time and we generally try to avoid being in comprehensive treaty negotiations with a First Nation that is actively suing the province. The Haida have to date chosen litigation. The offer represents a suggestion that we put the litigation to one side and focus on negotiations. Were not asking that they abandon the law suit, but as you say that they put it into abeyance.
SR: When you made the offer it made quite a splash in the media and I heard some interviews you did with media down in the lower mainland and after the offer you were suggesting in interviews that the province may become more vigilant about enforcing its authority on the islands than it has in the recent past. I was wondering what that means exactly.
GP: Well it really only is a statement that if the Haida arent interested in resolving issues through negotiation then it might be harder for us as a province to informally put lands to one side pending a possible treaty settlement. So were just going to have to go about the business of granting resource tenures as we ordinarily would. It doesnt mean that theres going to be a wholesale change in the way we do business on the Charlottes. Its more a realization that if theres no hope of progress at the table, then theres no reason to withhold granting permits to people.
SR: Switching gears a bit but still related I supposeI had the opportunity to go over the provinces statement of defence, and its a hardball statement of defence in my reading of it and I know its ruffled a few feathers around here. One of the things that leaps out at me right off the top was the idea that you will be contesting the very existence of the Haida Nation
GP: Well, my first comment is that the Haida commenced the lawsuit. They filed a hardball statement of claim. Its hardly surprising that we would defend it vigorously. Theres no defence raised in that statement of defence that is unusual. They are the standard decisions that defendants take in all litigation and that the province has taken in aboriginal rights and title litigation for at least two decades. Its a question of saying, to deal with your example, there is no certainty with respect to the precise delineation of the aboriginal communities that hold as collectives aboriginal title. Theres no book we can look up and say this has been conclusively determined. And in those circumstances we think the counsel of prudence is to be cautious and to say to the Haida, and any other First Nation that claims aboriginal title, that you must prove to the satisfaction of the court who you are and that you are the group that has aboriginal title. And there have been attempts to do that that have failed in the courts. Delgamuukw being the most well-known example. In Delgamuukw the plaintiffs said we are discreet houses with chiefs, and the argument was that the houses individually held ownership rights, and that claim was rejected in favour of the suggestion that has yet to be verified by a future trial that the aboriginal title of the Gitsan may be held collectively by the people called Gitsan. So there is an example why in my view when so much is at stake its important for the province to be cautious.
SR: But it strikes me as ironic that on the one hand the province is contesting the existence of the Haida Nation while on the other they are presenting the Haida Nation with a treaty offer.
GP: But you know the probable term of any final agreement with any First Nation will be agreement by them that they are the First Nation that would hold any aboriginal rights and title. And they will save the province from any claim that anybody else might hold those rights. So I dont doubt, the province doesnt doubt, that there are aboriginal people on the Queen Charlotte Islands and that they have been there a long time, and we dont deny that those are Haida people. Thats a long way from deciding that those people have rights that displace the rights of all other occupants of the Queen Charlotte Islands and thats the claim that theyre making in the lawsuit.
SR: The claim theyre making in the lawsuit definitely moves further along the spectrum in terms of what actually constitutes aboriginal title that what we saw in Delgamuukw.
SR: I know you cant discuss the details of the case but I was wondering if you personally thought that aboriginal title as its defined in Delgamuukw might ever be established in British Columbia.
GP: Oh I think that there are First Nations in British Columbia that have aboriginal title, but theres a big gap among different conceptions of whether aboriginal title is a right of ownership or possession of village sites and their immediate surroundings or if its a right, as the Haida claim, over all of the lands, and all of the water, and all of the air, of a massive area of land. And that issue, as a matter of law, is not resolved in British Columbia.
SR: Yeah, well the court in Delgamuukw essentially said that in a situation, hypothetically, where a First Nation was able to establish aboriginal title to a large amount of territory, for instance Haida Gwaii, that neither title would be extinguished completely. That there would be an overlap and the extent of each would need to be determined. How do you see the conciliation between Crown title and aboriginal title playing out?
GP: I think the best reconciliation is a reconciliation achieved through negotiation. Where the parties have a chance to control their own future by providing terms of an agreement that make sense for them as opposed to handing their future over to the court. And I think that Delgamuukw is a difficult decision in that there are passages in that judgement that are not as clear as perhaps they could be when you try to apply them to one context or another. And thats why I think the Supreme Court of Canada in Delgamuukw did a good job of establishing a very high-level framework. But because they failed to decide any issue on the facts they created more uncertainty than less.
SR: And yet at the same time, at least at the provincial level, youve seen some clarification. We havent heard from the Supreme Court yet, but in the TFL 39 case, or in Taku, they seem to be putting some meat on the bones
GP: Theres definitely been some progress in terms of developing some details around aboriginal title. But the TFL 39 case is obviously going before the Supreme Court of Canada, so well have to see what that court has to say about the decision of the BC Court of Appeal. Weve made some progress in getting clarity, but weve got a long way to go and as I say my view and the preference of government, and this has been what the courts have been telling us for twenty years, is that we should sit down at negotiation tables and resolve these things.
SR: Why is it that the province is so reluctant to recognize aboriginal title? It seems, at least here anyway, it seems that recognition is very important to the Haida and then negotiations on that basis. But from what I understand the province is not willing to go there at all.
GP: I think that when the stakes are high and the uncertainty is high, youre always going to have a hard time getting somebody to admit something. And we made significant progress down that path in the throne speech last February in terms of acknowledging the injustices of the past and expressing regret for them. I would continue to look for ways in which government might be able to make statements about aboriginal rights and title that would reassure First Nations that its not our intention to deny their existence, but to do that in a way that would not leave the government of British Columbia open to open-ended fast claims for land and dollars that could never possibly be satisfied.