Landmark Haida title agreement is ‘a template’ for what’s possible, says premier

After decades of negotiation, the Council of the Haida Nation signed an agreement with “British Columbia” on Sunday transferring ownership and jurisdiction over its territory back from the Crown.

The agreement recognizing the nation’s Aboriginal title to approximately 10,000 square km in Haida Gwaii was hailed as a “historic first” by the province and something Premier David Eby called “a milestone more than 20 years in the making.”

“We are moving beyond a place where the Haida Nation’s rights were denied to a place where they are recognized and upheld,” he said in a statement.

Gaagwiis Jason Alsop, president of the Haida Nation, also lauded the move as a monumental step that’s “building on the work of past leaders of the Haida Nation” and “B.C.” and which allows the nation to work toward implementing its title “without conflict, based on yahgudáng (respect), with our ownership being properly recognized,” he said.

Ninety-five per cent of Haida citizens voted in favour of the agreement at a special assembly held on April 6. Gaagwiis told IndigiNews in March that many people from the nation didn’t think reaching an agreement like this would be possible in their lifetimes.

“They recognize and appreciate the progress over the years from that place where they didn’t have very many rights recognized at all, and had to get permission to leave the reserve and get permission to go harvest food from the Indian agent, to the place we’re at now where we do move freely about our territory, exercising our rights and are involved in the governance and management of everything that happens,” he said.

“It’s exciting, but I think they also recognize all the work that’s to come.”

IndigiNews spoke to Premier Eby about the steps that led to this shift in how the province deals with title cases and why he thinks the shift was necessary.

This interview has been edited slightly for clarity.

Julie Chadwick: What’s fascinating to me about the Haida Aboriginal title agreement is that this marks an entirely different approach, after decades of the province fighting nations on these things. Can you tell me more about the civil litigation directive that you brought in when you were attorney general, and then how it led to the Haida decision?

David Eby: The civil litigation directive is just a series of proposals that I think would sound quite intuitive to many people — keep the arguments focused on what’s actually at issue, instead of everything you can possibly think up, including things that might be very weak arguments. Try to find resolution outside of court wherever you can. A bit like doctors, you know, try not to do any additional harm to our relationship wherever you can avoid it, through the court process.

So those kinds of basic ideas are what’s in the document. And [the civil litigation directives] are meant to provide encouragement to the lawyers and public servants who negotiate these agreements, to know that they have the support of the government to basically take positions that haven’t been taken before, to take approaches that haven’t been done before, to try to find a new way of moving forward.

The thing about the Haida that is so important in terms of the litigation directive, is that there was a very well-established title lawsuit that the Haida Nation has been advancing for a couple of decades, that we were reasonably certain that as a government, we were going to lose.

Despite that, the lawsuit was carrying on, and millions and millions of dollars were being spent by the province on lawyers and experts. I have no idea what the Haida was spending, but it was their focus, instead of being able to focus on other issues of priority for their nation. So it frees up public resources to focus on other things, it frees up Haida resources to focus on other things, and it achieves some of the goals of the litigation directive of trying to build a relationship, rather than destroy it through adversarial lawsuits.

It makes sense, in terms of efficiency, that the government would look at it and say, ‘Okay we’re going to lose this case anyway.’ But what strikes me about the directive is that it signifies a wholly different approach of working together, even in cases where the province might win. Where does that come from for you? When did it personally strike you that this is the way to do things?

When I was an articled student at the Federal Department of Justice, I had an experience of going into what was called the William case, which was described to me as the biggest and longest-running lawsuit in the history of the province and possibly Canada. I saw one day of the 10 years of that lawsuit. And that was the Tsilhqot’in title case.

In that case, I saw the legal team who basically dedicated half of their career, and the judge who dedicated almost his entire judicial career to hearing this case, and the nation, who spent endless resources for their lawyers to do this. Then it resulted in the decision finding title, which of course was upheld. And that itself was, I think about 10 years ago now.

But the decision resulted in huge uncertainty and confusion on the land. There was no plan, because everyone’s energy had gone into fighting this thing for 10 years instead of thinking about — okay how do we work together? What would it look like to be partners on the land? So you had ranches that were kind of stranded, and ranchers were wondering what their future was, and private landowners wondering, ‘Does this affect us?’ and businesses saying, ‘Should we invest in this area? Or is it too uncertain? What does it mean?’ It just seemed like a huge mess, from my perspective.

So given [we have] the opportunity to try something different in Haida [Gwaii] where you have another case going on in various forms for 20 years. We have a partner on the other side with the Haida, who have a well-established government and have support across the island for governance — they had local mayors showing up in court saying, “We trust the Haida government more than we trust provincial government administration and litigation.”

This is a scenario where, if there was ever a possibility of reaching resolution outside of court, this should be it. It’s a very good example of — we hope — a new way of doing things, but there’s a lot yet to be determined, and there’s a lot of work that we have to do yet with the Haida.

I don’t know if this was the situation in Cariboo-Chilcotin, but often you get a lawyer assigned to these cases that has no background in Indigenous law who’s making a decision about these things, and trying to apply the law and find a path forward without being able to negotiate with the parties. It’s just not a great way of doing things.

And without the background, they may misjudge — in the case of the Tsilhqot’in — the strength of the case without fully understanding it?

It’s a very complex area of law, and the outcomes of a court decision are very blunt. They’re not nuanced. It’s like a thumbs up or a thumbs down. So there’s no ability to find that path in the middle where we’re negotiating and finding a way to work together.

In light of this being a totally different way of doing things, how do you think this might impact other nations’ title cases?

If it doesn’t work in Haida, it’s not going to work [laughs]. We have a very well-developed and restored and vibrant Indigenous governance model across the table from us, and leaders who have been doing this work for many, many years, and who are reliable and consistent partners. And on our side is a provincial government that’s committed to doing this work with them and developing that partnership.

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 because it’ll provide a bit of a template for everybody about what the world of the possible is.

In this specific model — to just get into the legalese of it a little bit — it’s not treaty, which is the path that many nations have taken. And it’s not a court decision, which is the path that many nations have taken. It’s something different where we’re recognizing the title as a government, through provincial law and hopefully through federal legal recognition as well, and then moving step-by-step in an ongoing relationship.

So my hope is that this is something that provides nations that have been reluctant to do treaty for whatever reason, or reluctant to go to court for whatever reason. It provides just one more way that we can work these things out.

What’s your response to the criticism that if it won’t impact private business, or private property, the agreement is essentially kind of toothless?

Well that is interesting, because it certainly wasn’t a perspective of the Haida yesterday, that this agreement was not significant. I think the sense was one of relief. And the question is, if we’re not putting our energy into fighting the Crown, how can we use that energy to be constructive, and make sure that we’re not fighting each other? When there’s an external enemy that we’re all united against, and fighting against, it’s easier. To be able to be in the room and to hear that discussion at the ceremony was quite fascinating, and I think that it indicates the depths and the significance of the decision we’ve made here.

We have fundamentally reoriented the relationship between the provincial government and the Haida, and that allows a huge amount of energy and resources that previously went into fighting to go into building up Haida Gwaii — raising all the boats on Haida Gwaii, but also raising boats in the province — and, we hope, right across the country.

Do you think this approach could effectively replace the treaty process?

I think for some nations, this would be a preferable approach. And for others, they’re going to continue to prefer treaty discussions.

But even in the treaty discussions we’re having, we’re no longer in the model where you have to acknowledge that your rights are extinguished. If you want to sign a treaty, for example, the treaties are seen more as living documents in an ongoing relationship with government. So there is a bit of a convergence of these approaches. I think this provides one more avenue for those nations who have been quite suspicious of the treaty process to engage with government and build that relationship.

Julie Chadwick, Local Journalism Initiative Reporter, IndigiNews