News Analysis
The federal government announced the signing of an agreement over the weekend affirming that the Haida Nation has Aboriginal title over the Haida Gwaii archipelago in British Columbia, opening questions regarding property rights and similar future agreements.
Ottawa says private property rights will not be affected by the new agreement, which includes provisions along that line. Others have suggested, however, that the agreement has loopholes around the property issue that can cause uncertainty.
The “Big Tide (Low Water)” Haida Title Lands Agreement was signed on Dec. 4 and announced on Feb. 17, with Prime Minister Justin Trudeau calling it a “landmark agreement.”
President of the Haida Nation Jason Alsop said the agreement means “we can begin a new era of peaceful co-existence knowing that we can look after Haida Gwaii.”
The agreement is the latest of a series of steps taken to increase self-governance for the Haida Nation. The province of B.C. made a similar agreement last year.
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Crown-title land will be transferred to the Haida Nation, giving it an inherent legal right to the land. This will impact how courts interpret matters around disputes.
According to Canadian jurisprudence, Aboriginal title provides exclusive right to the land, which raises private property issues.
Crown-Indigenous Relations Minister Gary Anandasangaree, however, dismissed concerns about the potential impact on private property as raised by some politicians, calling them a “lot of noise.”
“One of the key elements of this agreement is that private title will not be impacted in anyway,” he said. “Your ability to get a mortgage, or ability to get the property encumbered for construction for putting on a lien—all of those will continue.”
The provision on property rights in the agreement with Ottawa says the Haida Nation “consents to and will honour Fee Simple Interests.” “Fee simple” means the complete and irrevocable ownership of land and real estate.
The B.C. Conservatives had criticized the province’s plan to recognize the Aboriginal title on Haida Gwaii in April last year, saying it exposes B.C. residents to “an incredible liability risk.”
“I fully support resolving Haida’s title claim but including private land is reckless,” said B.C. Conservative Leader John Rustad. “This means land owners on Haida Gwaii are at the mercy of Haida [and] future Haida indigenous law.”
The uncertainty around the matter stems from the crafting of the agreement, or the use of an agreement to recognize Aboriginal title, according to legal counsel Thomas Isaac, chair of the Aboriginal Law Group at law firm Cassels Brock & Blackwell.
Isaac pointed out that the federal agreement with the Haida Nation uses the common law definition of “Aboriginal title,” which includes the exclusive right to the land, but then “goes on to describe something other than that.”
The agreement states that nothing in it derogates from fee simple interests, village councils and reserve lands, and the delivery of public services.
“So now we’re not talking about Aboriginal title. Why? Because Aboriginal title won’t allow itself to be alienated to any other party but the Crown,” Isaac said. In other words, the Haida Nation is not allowed by law to cede title to another party other than the Crown.
In that context, the lawyer says the Haida “don’t have the right to give” protections around private property, and the federal and provincial governments “don’t have the right to offer them up.”
“I think there’s a real argument to say that both Canada and British Columbia don’t have the authority to acknowledge Aboriginal title on private property,” he added, noting another layer of complexity. Relating to jurisprudence, Isaac said that if the Crown already gave land to a private landowner, “it’s not theirs to give away” to aboriginal claims.
Adding uncertainty, Isaac also noted that the agreement is in effect a contract and not a treaty, which could be cancelled any time. Even then, language around the protection of property rights could have been stronger, he said.
“If it said, ’the Haida acknowledge that private property rights are justifiable infringement on Aboriginal title,’ I get that. I know what that is. Now that’s certain. That’s predictable,” he said.
Minister Anandasangaree’s office and Crown-Indigenous Relations were contacted for comment.
Another “massive uncertainty” created by the Aboriginal title recognition on Haida Gwaii relates to other First Nation groups across the country that could seek a similar treatment, said Isaac. The Haida Nation obtained the recognition over 100 percent of its claimed territory.
“Go ask other First Nations trying to negotiate treaties or have their title acknowledged. So there is an equity question even among Aboriginal peoples?”
There will be an estimated five-year transition period as governance shifts from the federal government to the Haida Nation. For the time being, public services offered by the government, such as the Coast Guard and communications and broadcasting, will continue to be delivered.
Any potential changes will be determined during the transition process, says the agreement. There will also be additional negotiations around airspace, fiscal arrangements, and taxation matters.
The Canadian Press contributed to this report.
