For some, historic legislation recognizing Aboriginal title throughout Haida Gwaii is a blueprint for Reconciliation.
For others, it as a slippery slope toward re-defining property rights in B.C.
While the Haida Nation Recognition Amendment Act was among nine pieces of legislation that received Royal Assent on the final day of the legislature’s spring session, none carried more symbolic significance while generating more disagreement about its substance.
The act — which passed with 53 votes from New Democrats, Greens and independents in favour, against 25 votes from B.C. United and the Conservatives against — moves the Rising Tide Haida Title Lands Agreement signed April 14 into provincial law.
The agreement recognizes title (exclusive use and control) by the Haida First Nation over the 200-island-archipelago 100 kilometres west of B.C.’s northern coast and spells out the process for an estimated two-year transition toward Haida jurisdiction.
“It is explicit that this (law) will not impact private property, local government or the (public) services that people at Haida Gwaii use every day,” Premier David Eby said Thursday in responding to continuous questions.
Eby said the law responds to legal conflicts that have lasted more than two decades and praised it as a path toward joined prosperity for all involved parties. He called it a “template” for other agreements.
Critics raise concerns about the property rights of non-First Nations. Supporters accuse those critics of unnecessarily stoking racial division.
The latter group includes First Nations Leadership Council, local municipal and private interests on Haida Gwaii, and former politicians, including former B.C. attorney-general Geoff Plant. Government also pointed it has consulted widely, including with leading business groups inside and outside the resource sector.
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But more critical assessments persist.
McMillan LLP, a leading Canada-wide law firm, pointed to several questions in its assessment. They start with the “preliminary question” of whether a “law specifically directed” at recognizing and implementing Aboriginal title would be found unconstitutional if passed only by a provincial legislature.
B.C. Minister of Indigenous Relations and Reconciliation Murray Rankin said during debate last month that case law recognizes B.C.’s ability to implement Aboriginal title without Canada on the basis of exclusive provincial jurisdiction over property and civil rights.
But McMillan’s assessment also raises the question of whether private property is even possible under Aboriginal title. Courts have defined this as a “communal” right which First Nations cannot transfer, sell or surrender except to the Crown.
The assessment asks if First Nations can “consent” to private ownership where Aboriginal title exists, what rights will private property owners have when Aboriginal title includes the “right to choose the use to which the land is put”?
Private property accounting for about two per cent on Haida Gwaii remains under provincial jurisdiction in “perpetuity,” Rankin said.
“The bill sets this out,” he said. “It’s codified with explicit Haida consent, leaving it absolutely clear and legally indisputable.”
B.C. United’s Michael Lee, however, questioned this promise, noting that First Nations have challenged private ownership by non-First Nations in the past. Amendments by B.C. United that have would excluded private property from title recognition failed.
Rankin reiterated the protection of private property during debate, pointing to the analysis of Kent McNeil, emeritus distinguished research professor at Osgoode Hall Law School. While the Haida Nation can acquire fee simple lands, those lands will remain in private hands and will not be subject to Haida control or jurisdiction until purchased, Rankin said, citing McNeil.
It remains to be seen whether the act can serve as a template though.
“While the (agreement) is an historic step in furtherance of reconciliation, the extent to which this (agreement) can serve as a blueprint for future Aboriginal title claims remains to be seen,” reads an analysis from Osler, Hoskin and Harcourt.
That analysis adds that Haida Nation’s claim is “exceptional” in many ways, including the archipelago’s isolated geography and the absence of competing claims. “Nonetheless…(it) marks a positive step away from protracted litigation that has characterized Aboriginal title claims, toward greater cooperation and legal certainty.”
