British Columbia’s Haida Nation’s Aboriginal title sparks constitutional questions

British Columbia’s formal recognition of the Haida Nation’s Aboriginal title over a group of islands near the Alaskan panhandle is a reconciliation milestone. But it’s raising legal and economic questions that experts say could end up in the Supreme Court.

On April 14, the B.C. government officially gave the Haida Aboriginal title, which includes rights to possession, use, and economic benefits, hereditary rights that pre-date the arrival of Europeans. The Haida say the pact just puts in writing how the First Nation has always asserted sovereignty over the islands. Constitutional lawyers contend the province has exceeded its authority, and the issue could lead to a constitutional challenge.

“The province has created considerable uncertainty regarding the long-term viability of Crown land tenures on Haida Gwaii and elsewhere in British Columbia,” Thomas Isaac, a Vancouver-based partner specializing in Aboriginal law at Cassels Brock & Blackwell, said in an interview.

Recognizing Aboriginal title over fee simple lands—also known as full private property ownership rights and a fundamental component of B.C.’s real property system—while maintaining private property rights is legally contradictory, Isaac said.

The Haida agreement is particularly concerning for the mining industry. It’s wary that B.C., ranked second in Canada in terms of exploration and development spending, with the largest gold major, Newmont (TSX: NGT; NYSE: NEM), investing in the Red Chris and Brucejack mines in its northwest Golden Triangle, could export the concept and tensions across the country.

Progressive BC

B.C. has already been a leader in encouraging First Nation equity participation in projects, such as passing the United Nations’ backed Declaration on the Rights of Indigenous Peoples Act in November 2019 before other jurisdictions. However, courts have sent key legislation back for review, such as the September 2023 ruling that the province must consult with Indigenous groups before granting mineral claims for prospecting. That ruling triggered an 18-month legal review to include a consultation framework.

The Haida First Nation declined several requests for comment over the past month saying Haida President Gaagwiis Jason Alsop was unavailable. The Nation said it stands by comments it made in April at the time of BC’s move.

“We have always asserted our sovereignty to Haida Gwaii and the surrounding waters,” Alsop said at the time. “With this agreement in place, we can work toward implementing our title without conflict, based on yahguudang / yahgudáng (respect), with our ownership being properly recognized.”

The B.C. Ministry of Indigenous Relations and Reconciliation says the recognition, known as the Gaayhllxid • Gíhlagalgang “Rising Tide” Haida Title Lands Agreement, encourages negotiation over litigation.

“Recognition of Aboriginal title has been on a trajectory in the courts for 40 years,” communications director Leanne Ritchie said in an email to The Northern Miner. “Governments have been advised to stop litigating and to negotiate – find solutions that work for people.”

Queen Charlotte Islands

Haida Gwaii, formerly the Queen Charlotte Islands, had historically seen various mining operations for gold, copper, and coal. Most activity occurred in the late 19th and early 20th centuries around the community of Tlell on Graham Island, where gold mining occurred. Coal mining centred around the Skidegate Inlet area.

Premier David Eby appears to support spreading Aboriginal title across the province and the country.

“The stars are aligned in this moment, and if we can — on both sides — demonstrate that this is successful, then I think it makes it more possible to do it in other places in British Columbia, and also in Canada, Eby told Canadian Press in April. “It’ll provide a bit of a template for everybody about what the world of the possible is.”

Vancouver-based lawyer Robin Junger, counsel on Indigenous law at McMillan, says the precedent set by recognizing Aboriginal title is unclear. Still, following the Supreme Court’s recognition of some Tsilhqot’in Nation territory in 2014, there are issues. These include operational uncertainties for businesses struggling with permit delays and confusion over regulatory authority. He predicts the Haida islands will fall into a “legal morass” of complexity like the Tsilhqot’in Nation.

“Nobody knows who’s in charge and who’s doing what, Junger told The Northern Miner in an interview. “Ten years later, it’s a mess. Nobody knows. It’s completely unclear, and people are losing their businesses… now they can’t get their permits in a timely way or on the same terms.”

Two years

The Haida title agreement states that B.C. will maintain jurisdiction over natural resources until transferred, meaning current exploration and mining projects will continue. Still, future projects will likely require the Haida Nation’s consent. Privately owned land is to remain under provincial jurisdiction, with no changes to local government control or public services. Existing interests on Crown land in Haida Gwaii will continue under current terms for two years, but their future is unclear, Isaac said.

“Where a private property owner seeks an approval or authorization from the Crown over fee simple lands, given the recognition of Aboriginal title to those lands, the province will be required as a matter of law to obtain the consent of the Aboriginal title holders,” Isaac explained. “This situation creates significant uncertainty for businesses, especially in the mining sector, which relies on stable Crown land authorizations.”

Junger criticized the legislation requiring provincial authority under the Land Act to be exercised in a way that is “consistent with Aboriginal title” for introducing significant ambiguity into governance and regulatory processes.

The Haida Nation will gain decision-making power that alters the legal and economic landscape in ways that may not be immediately clear to the public or even fully understood by those affected, Junger said.

Constitutional authority

The government says the co-existence of fee simple and Aboriginal title is possible because the Haida Nation has consented to fee simple interests and other interests and rights in relation to land. The province asserts it is wholly within its constitutional authority to enter this agreement and to bring forward legislation to implement it.

“The Haida Title Lands Agreement was developed with leading legal minds in constitutional, Aboriginal and treaty law,” Ritchie said. “This agreement and legislation demonstrate how creative approaches can solve longstanding issues.”

There will be no change to private property rights, she said.

“The province and Haida Nation will negotiate how different aspects of land and resource governance shift to Haida Nation, starting with protected areas and forestry.”

While the B.C. public generally supports the agreement, Angus Reid polls last month showed 55% support. Only 30% said it should be a precedent for future land transfers.

Despite the potential rarity of no overlapping claims in Haida Gwaii, half of the population being Haida and a 50-year record of self-governance, Junger says others will try to copy the agreement.

“However unique the province may claim Haida is, other Indigenous governments will likely demand the same type of agreement,” the lawyer said.