SpruceRoots - Transcript No. 2
November 28, 2002

Haida Title and Implications
Louise Mandell, QC addressing the gathering at the Visitor Reception Centre, Queen Charlotte.

I wanted to start by thanking everybody for coming and the Gowgaia Institute for inviting me and also pay my respects especially to the Haida, whose beautiful land we've been blessed to be on tonight.

I will start with the case. For some it seems like a legal case fell out of the sky. People say, "there is a case, what does this mean?" I want to put the Title case into the context of Aboriginal and Crown relations and tell you where it fits historically in the whole struggle to try to get aboriginal and non-aboriginal interests and rights respected.

The case's beginning started many, many, many centuries ago in Europe when the European powers were beginning a large era of expansion over the face of the earth. This is the colonization era when the British Crown started to vie for the North American continent, first against the French and later against the Americans. One strand of British international and constitutional law, which we rely on in the year 2003 or 2004 -- whenever it is we actually get to trial -- said that when the British came to North America or to any other country where there were aboriginal people living there, they could not just take the land. What the colonizers had to do according to British law was respect the pre-existing rights of the aboriginal people who lived there and if they wanted to colonize, they had to acquire the land through a process of treaty-making. In Britain, King George III expressed this law in the Royal Proclamation of 1763, and the principle of respect and treaty-making became a fundamental tenet of British law. When the British arrived in a territory where aboriginal people lived, the Crown respected them and concluded a treaty. ThatÕs basically the principal.

All throughout Canada, treaties were concluded. British Columbia was very late in the colonization process, and it wasn't until 1846 that the British claimed sovereignty -- or their own version of sovereignty -- over the area which included British Columbia. You can see the big difference in the time span, from 1763, when the law started to operate on the east coast, to 1846 when it was applied on the west coast. By the time British Columbia began to be settled there were a few treaties that the Crown did conclude on South Vancouver Island but then pretty much after that the colonizers -- who then became the colonial government -- abandoned any effort to conclude treaties.

They started to just steal the land "fair and square", and they justified this breach of law with a number of excuses which were articulated in several court cases, including Delgamuukw. These excuses were an attempt by the Crown to justify taking the land in BC without concluding a treaty. Aboriginal people were here on Haida Gwaii, and obviously aboriginal people were here in other parts of British Columbia, so how did they justify taking the land without a treaty? The CrownÕs answer in court cases was raised as extinguishment defences. Aboriginal people hadnÕt been allowed for many, many decades by law to raise money to go to Court to establish their rights to the land. The law changed in 1951. Eventually aboriginal people went to court and started to say, 'So how did the Crown get our land?' Out came the excuses.

In the Calder case the excuse did not include the statement by the Crown that aboriginal people werenÕt here, but the Crown gave two reasons to justify their occupation of the land. First they said that aboriginal people were so low on the scale of civilization that the Crown could simply declare the land to be unoccupied. So they planted their governments and gave tenures to the land away to other people. This argument we call the "settled colony" theory. You might shake your head and say, 'Oh my God, how could that happen here in British Columbia?' But that argument was still alive and well when we argued the Delgamuukw case. It really wasnÕt put to bed until 1996, when the Court of Appeal rejected it and it didnÕt go up to the Supreme Court of Canada. So this is a very long-standing argument.

The government also raised the argument: 'Well, we got the land when the colony of British Columbia passed land laws and gave the land to third parties through a system of land tenure. They called that argument "blanket extinguishment" and that was the main argument in the Calder case, and it wasnÕt put to bed again until Delgamuukw by the Supreme Court of Canada in 1997. In Delgamuukw, they also raised the argument, 'Well look, we got Title to the land when aboriginal people moved onto reserves and so they relinquished their interests over all the lands outside the reserves'. That argument was finally put to bed in 1996 at the BC Court of Appeal in Delgamuukw.

Finally they said that extinguishment occurred when the Province granted land to third parties who used the land inconsistently with the exercise of aboriginal rights and title. The Supreme Court of Canada rejected this argument and said that the province has no power to extinguish Aboriginal Title, and so, that is not a method of extinguishment. Here we are now -- since 1969 when the extinguishment arguments first started in the Calder case -- close to 25 years later and finally the Supreme Court of Canada in Delgamuukw said to the province and to the federal government that they have not raised any arguments that have justified the dispossession of aboriginal people from their homelands -- Aboriginal Title and Crown Title co-exist. What happened in Delgamuukw -- which is a step forward in the area of Aboriginal Rights and Title -- was that the court said: 'Look we are going to create a framework for the reconciliation or the co-existence of Aboriginal and Crown Title.' This framework had not been there before. What the court said is that Aboriginal Title is a right in the land itself, it is an exclusive right, it is a communal right, it is the right to make decisions about how the land is used. It has a limit -- what they call an inherent limit -- where Aboriginal people can't use the land so as to prejudice the ability of future generations to exercise their rights. But it is a complete interest in land the court said.

The court also said that Crown Title gives the Crown power to interfere with Aboriginal Title. But, if they are going to interfere, they have to do so honourably. The court said interference must be justified before the Crown grants tenures in land it has to make sure that Aboriginal people have a priority in the process and in the result. Consultation has to occur, and the consultation must be deep, and in some cases it will require consent and there has to be compensation.

The court said in the Delgamuukw case that the oral histories had the same value as evidence as the historical record, an argument that the Chiefs in Delgamuukw advanced. Because the trial judge had rejected the oral history evidence, the Supreme Court of Canada sent the matter back for a trial, but they urged the government to negotiate, not to litigate. The Chief Justice said: 'LetÕs face it, we are all here to stay' and he put a duty on the government to enter into and conduct negotiation in good faith.

Well what did the government do? Basically the government went into its bubble, then they came back out with a whole new theory of how all that law didnÕt matter at all -- the Delgamuukw decision and the principle of reconciliation, the framework of analysis that the Supreme Court decided, the removal of extinguishment arguments from the equation -- none of that mattered, the province said. They said it is all theory, in the air, and it doesnÕt affect us until a First Nation proves their Title in court. To the First Nations they said, 'You have to prove your Title in Court or conclude a treaty through the BC Treaty Commission for us to be required to consult, for us to be required to accommodate, for us to be required to create a reconciliation with you before interests in the land are granted to others'.

And that's where the TFL-39 case blew that rock off the road. The Haida went to court and said: 'Look, the government has to be deaf, dumb and blind' -- that's not exactly how we put the argument -- 'for them not to know that Haida people were here first on Haida Gwaii.' They've had in their possession so much information; it is so self evident that the Haida people were here. We created a record outlining all of this, and what the court concluded was that there is a sound case for Aboriginal Title and that the province and Weyerhaeuser ought to have considered prior to renewing TFL-39. Rather than quashing the TFL-39 licence, the court placed a duty on Weyerhaeuser and the province to negotiate and to accommodate in good faith. That decision created a number of legal consequences, the biggest being that the province, for the first time, has been forced to deal with the problem of coexisting Titles and try to take the next step towards reconciliation prior to the proof of Title.

In some ways what the court has said in the TFL-39 case and the consequence of the decision is that a wonderful opportunity has opened up for people to start to try to work out new models and new ways of doing things, to create a reconciliation on the ground. This gives us plenty of time to try to do a real made-in-Haida Gwaii solution in terms of how all interests are going to coexist.

So now we intend to go to court and prove Title to Haida Gwaii.

Parties going into court have to set out what they are trying to get the court to do. This is done in the Statement of Claim. Then the governments have to file a Statement of Defense, and then the Haida have a chance to reply, and then the wild rumpus begins. Everyone gets ready to prepare their evidence and get down to proving their case. We have filed our Statement of Claim, so IÕd like to go through what the components of the case look like, and what we are trying to establish.

IÕm going to begin with the map of our claim, showing the area of the claim. What is new about this from the point of view of Aboriginal law is that our map goes into Hecate Strait. It takes up an area of ocean, not just land. Prior to this all the Title cases that we are aware of have not extended out into the ocean. But we are going to prove Title not only to the land at Haida Gwaii, but also to the ocean and seabed, because thatÕs a very integral piece of how the Haida people have occupied Haida Gwaii.

The next portion of the claim has to do with establishing Aboriginal Title. The court has said that we must establish that the Haida people exclusively occupied Haida Gwaii in 1846. 'Why 1846?', well thatÕs when the British Crown sorted out all their difficulties with other European nations, and in 1846 the Treaty of Oregon was signed with the Americans. As I said, as a matter of British law when the Crown asserts sovereignty, the Crown is required to respect the pre-existing rights of the aboriginal people. The court has said that if you can prove that in 1846 the Haida occupied Haida Gwaii exclusively you will have established Aboriginal Title under the law. So our claim is that the Haida Nation in 1846 lived on the land, they harvested from various resource areas, they exercised their laws. We will prove that they maintained a spiritual relationship with the beings and the spirits of the earth, the forest, the sea and the sky. We will show that they established trade relations with other indigenous Nations as well as other international trading entities, and they governed Haida Gwaii according to their laws.

So this is our claim. When we go to court you will see all the evidence that weÕll use to prove that -- through all the shipsÕ logs of the ships that came to Haida Gwaii, through all the photographs that Dawson took at the turn of the century, through all the notes Swanton and Barbeau and others took when they interviewed Haida elders way back when, through all of the elderÕs testimony, the language, the place names and on and on and on. You will see a whole array of evidence that will establish that Haida people exclusively occupied Haida Gwaii in 1846.

And we will go on to prove that in spite of the defendant's disregard of the Haida people and their Title, the Haida people continue to maintain a substantive relationship to Haida Gwaii today. We'll do that by showing what Haida people have done, in spite of the difficulties created by the governments' issuance of tenure, by continuing to live on the land and continuing to use it, and continuing to try to manage it, continuing to evolve political institutions and continuing to maintain laws.

And we'll also show that the Haida Nation have resisted colonization and they have remained open to seeking appropriate solutions to harmonize Crown and Aboriginal Title. We will show how they have protested, repeatedly protested, the Crown taking the land and the resources away and allocating them to third parties. [We will show] that no Treaty has been concluded and in the absence of any Treaty, what the province and the federal government have done -- the federal government in the fishing area, and the province on the land -- was to continually issue tenures to third parties who have then harvested and exploited the resources of Haida Gwaii without any regard whatsoever to the prior rights of the Haida Nation, and often to the detriment of the land itself.

I want to state here that the case is not about fee simple, for those of you who own private land. We are not asking for fee simple land given to third parties to be given back. This case isn't about fee simple tenure. It's about the way the Crown gave away exclusive use of the land to other people, exclusive tenures to log, exclusive tenures to mine. What exclusive tenure means is that they excluded the Haida. That's what the words "exclusive tenure" mean, and it's how the province grants interest in land without regard to the Haida, and to their detriment and loss. That is what the government did wrong.

We also say that the government was wrong because in giving out these tenures, and in how they've managed the land, they've created ecological imbalances which have been to the disadvantage of the Haida. But most important, it has damaged the land and damaged the ecosystems contrary to the natural law of Haida Gwaii, which would otherwise maintain all of the species that belong to Haida Gwaii intact. And so we say that there has been damage done and weÕll prove it. So we say that as a result of all of that, this has caused harm to the Haida people.

So what is it that the Haida want from the court? What we are claiming are certain declarations first of all. The first declaration is a declaration to the government. The declaration to the government is that the Haida Nation has Aboriginal Rights and Title to Haida Gwaii within the meaning of the Canadian Constitution. We need the courts to tell the government that Haida people have rights under the Canadian Constitution.

We are also asking for a declaration that the province's Title has been encumbered? It is constitutionally burdened by the Aboriginal Title of Haida Gwaii. This is a declaration that the province doesn't own all the lands, mines, minerals and royalties that they claim under the Constitution. Those are all subject to Aboriginal Title. We're also asking for a declaration that the Haida Nation is entitled to an order for damages or compensation which has resulted from all of the unlawful activity, which has caused them damages and harm. You'll see in the Statement of Claim the words compensation and damages are used. That is to say that there has been damage done here and there should be compensation paid for it. We are asking for an order quantifying the damages and compensation, we want an order [to show that] the Haida are entitled to it. But we will ask the Court to defer quantifying it right off the bat, we can deal with that through negotiations or come back later to address it if we have to. Deferral of the compensation issue is what happened in Delgamuukw.

This case isn't about money. This case is primarily about a declaration of rights that are at stake. We want a declaration that the Haida are entitled to compensation for damages. The reason that is in the Statement is because of the position that the governments have taken inside the Treaty negotiations. This is after the First Nations have spent close to 200-million dollars of borrowed money -- not just the Haida -- across the province. Two hundred million dollars plus of borrowed money to sit at the Treaty table with the federal and provincial governments. There hasn't been one Treaty concluded out of that process and throughout all this time the governments maintain the position that they will not recognize Title. Nor will they pay any money for compensation or for damages for past wrongs which theyÕve caused. So long as the government maintains that position, we say as a matter of law, that the governments' position needs to be corrected. So that is going to be one of the areas of relief that weÕre seeking in court.

We are going to ask for accounting from the province of profits, taxes, stumpage dues and royalties. WeÕre asking for an order quashing whatever forestry, fishing and mining and other tenures, permits and licenses which have been issued by the province or Canada without any accommodation with the Haida Nation, particulars of which will follow as well. This is to do with whatever tenures that have been issued on Haida Gwaii where there can be no accommodation, and where the tenure cannot be reconciled with the existence of Haida Title. Then we would ask that the tenure be quashed and the parties be required to start over again -- dealing with the issuance of whatever tenure within the realm of whatÕs acceptable within the context of Aboriginal Title.

We are asking for an order of ejectment or for recovery of land from the province for tenures issued which create ongoing damage and cannot be harmonized with the Aboriginal Title of the Haida Nation, particulars of which will follow. We really donÕt know which tenures would fall into that category. We want to try to reach an accommodation with everybody on Haida Gwaii between now and when the Title case is reached, and hopefully then there will be no particular tenures that we will ask to be quashed. Then, we seek interlocutory relief, which means that if there is activity between now and the trial which the Haida feel needs to be stopped or challenged because it will seriously challenge Haida Gwaii or damage their ability to prove their case -- perhaps with destruction of CMT's or logging in the Haida protected areas to name a few examples -- we've asked for the right to protect these things before trial is reached.

So that is the case. I wanted you to see where we are going and also to make you aware of the facts and to include you in the process.

I really liked what was said earlier that Aboriginal Title was manifesting itself on Haida Gwaii, and so it is. There is much more respect shown to how accommodation can occur here. That's what I think the court had in mind when they were talking about coexisting Title. I think the people of Haida Gwaii may move a lot quicker than the Crown moved in trying to shape the relationship, and that is going to drive the shape of the remedy which we are going to be looking for in this case. Hopefully when the case has finally come to fruition and we are in court we may very well have a remedy that everybody on Haida Gwaii would find to be an acceptable coexistence. This would really be ideal.

Thank you very much.

Louise Mandell, QC