Questions linger regarding resource management, park access and private land rights
In 2014, the Supreme Court of Canada legally recognized 1,750 square kilometres of Crown land southwest of Williams Lake as Tsilhqot’in First Nation Aboriginal title land. It represented about two per cent of traditional Tsilhqot’in territory.
The agreement states fee simple interests will be “honoured” and will continue under provincial jurisdiction. But Aboriginal law experts are divided on the question of how private fee simple lands can co-exist in a region where Aboriginal title exists. Agreement avoids having the courts decide title Haida Gwaii’s geographic isolation makes it unique in B.C. No one contests the Haida Nation’s continuous and exclusive occupation of Haida Gwaii. Nor do the nation’s claims overlap with the claims of other nations—as is often the case with many other First Nations—so the Haida appear to have an even stronger case for proving title than did the Tsilhqot’in.
“The circumstances in Haida Gwaii are unique. Whether those can be replicated elsewhere will be determined over time,” Rankin said. Other recent decisions on the reconciliation front could add to concerns that the B.C. government—guided more by a United Nations declaration than by existing Canadian legal principles—may be willing to abridge the rights of non-Aboriginal citizens when trying to address and redress the rights of First Nations.
The way in which the government rolled out the Land Act amendment process, without much transparency or forewarning, caused a backlash that forced the province to press pause on the initiative. Robin Junger, an Aboriginal law expert with McMillan, has criticized DRIPA and the United Nations Declaration on the Rights of Indigenous People , on which it is based. He said Canadian law—Supreme Court of Canada rulings and Section 35 of the Constitution—provide all the guidance necessary for balancing Aboriginal and non-Aboriginal rights.B.C.
It is unsurprising, then, that one of the biggest concerns about the Haida Title Lands Agreement is what it means for private landowners if the entirety of Haida Gwaii comes under Haida title and governance. Merle Alexander, an Indigenous resource lawyer at law firm Miller Titerle, disagrees. He said the Haida Title Agreement resolves this conflict by simple agreement to allow private land to continue under provincial jurisdiction.
The Haida Title Lands Agreement itself states that: “The Haida Nation consents to and will honour fee simple interests, including those held by Haida citizens,” and that “the Haida Nation consents to fee simple interests on Haida Gwaii continuing under British Columbia jurisdiction.”“You don’t need to be a lawyer to read plain English. To argue that this agreement somehow threatens fee simple property rights on Haida Gwaii is to misread the agreement.
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