Haida Nation ‘Rising’—Part III Excerpt
- Kelsy Chan
- 15 hours ago
- 15 min read
The Journey to Aboriginal Title
Introduction
Sovereignty, a concept of great importance to Canadians in the face of neighbouring
tensions, has evolved into a movement focused on strengthening unity and identity to safeguard Canadian nationhood. Canadian sovereignty, praised on the international stage and honoured on July 1st since 1867, has eclipsed the ongoing injustices and atrocities perpetrated against Indigenous peoples (First Nations, Métis, and Inuit) [1]. The current US administration's insults to Canada’s sovereignty, in tandem with the threat of overshadowing the nation's identity and boundaries, are realities that Indigenous peoples are all too familiar with [2]. Indigenous communities all over Canada have continuously been forced to advocate for their territory, resources, methodologies, social structures, and governance systems to uphold their inherent rights, title, values, and community well-being—their own sovereignty [3]. This tactic by the Canadian government to undermine Indigenous sovereignty is the product of strategized violence, which continues to fuel the colonial system’s desire for supremacy, profit, and gain. Indigenous sovereignty is not a political debate; it is simply a human rights matter. One of these communities that has tirelessly fought for their title and sovereignty for generations is the Haida Nation.
On April 14th, 2024, the Haida Nation and the Government British Columbia signed and passed the Gaayhllxid/Gíihlagalgang “Rising Tide” Haida Title Lands Agreement in the Legislative Assembly of British Columbia. This historic agreement declared that the Haida nation held full jurisdiction and Aboriginal title to their ancestral territory of Haida Gwaii, and it would enable all communities to coexist and maintain mutual respect on Haida Gwaii [4]. The mainstream media's coverage of the Gaayhllxid/Gíihlagalgang “Rising Tide” Haida Title Lands Agreement emphasized the government's use of the Declaration on the Rights of Indigenous Peoples Act (DRIPA), an adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (human rights tool), as the foundation for new initiatives and reconciliation efforts with Indigenous communities [5]. That said, numerous outlets failed to offer a thorough understanding of the many years of negotiation, advocacy, and successful cases and agreements diligently pursued by the Haida Nation to achieve this significant agreement. Their work must be highlighted to unveil the truth about Canada's history and to continue the momentum of resurgence and healing for all.
Strained Beginnings
The Haida nation has been widely recognized across Canada not only for their rich knowledge and culture, but also as trailblazers in Indigenous rights and governance. In the 1700s, when European settlers landed on the archipelago islands of Haida Gwaii, they were quick to acquire and rename the territory from Haida Gwaii (the island of the people) to the Queen Charlotte Islands [6]. Their arrival would change the Haida Nation forever, as they were ready to target and destroy Haida existence through violent diseases, such as smallpox, and nearly putting the nation on the brink of extinction [7]. The Haida Nation's population went from approximately 20,000 people in 1774 to under 600 surviving in 1915; it created a gateway for the government to prey on the nation in their most vulnerable state [8]. Following the establishment of the Royal Proclamation (1763), Indian Act (1867), BC Land Act (1858), and numerous other colonial policies aimed at undermining Indigenous ways of life, Haida leaders took a stand for their people. In response to the regulations being implemented, Haida hereditary chiefs and Royal Commission officials had their first discussions in 1913 concerning reserves, boundaries, and who owns Haida Gwaii territory [9]. Haida hereditary chiefs had made it clear that Haida Gwaii belonged to the Haida Nation and that they would seek legal representation against the privy council to establish this. As another attempt to undermine Indigenous agency, the federal government prohibited First Nations peoples from hiring lawyers or making land claims under Section 141 of the Indian Act, a method to control and weaken strong First Nations communities like the Haida Nation [10]. Haida leaders were keen on settling this dispute early on, but the government was reluctant to reconcile and respect Haida sovereignty [11].
Haida v. British Columbia - TFL 39, Block 6
The provincial and federal governments targeted Haida Gwaii significantly, as the territory was extremely resource-rich and profitable. In 1961, the government issued Tree Farm Licenses, commonly known as TFL 39, on Block 6, which was designated Haida territory [12]. It directly infringed on their inherent rights and jurisdiction over their territory. This sparked a
significant court dispute and highlighted the Crown's responsibility to engage with Indigenous peoples about potential repercussions on their rights and title. The Haida Nation had to openly express their distress and disapproval of these licenses in 1999 as they were transferred to a private company, Weyerhaeuser Co., where a judge dismissed the Haida’s concerns for privatized logging [13]. The provincial government took it upon themselves to deliver this transfer on their own terms without consulting Haida hereditary chiefs. They expressed that the community had not proven their title or rights to a court of law, and therefore, they were not obligated to consult [14]. As the government and big commercial companies were repeatedly invading Haida resources, it became increasingly detrimental to their survival. A great portion of their salmon population had declined, forests were being clear-cut, waters were being polluted, and ultimately, it was attacking and dismantling Haida well-being [15]. Despite key landmark cases such as Delgamuukw v British Columbia, which proved the existence of Aboriginal title to land in British Columbia, the province ignored the court's "blanket extinguishment" policy [16]. The turning point for the Haida Nation to defend their territory and assert their inherent title and sovereignty was when an ancient item was found. This item would form the cornerstone of Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 51 [17].
In 2002, an injunction regarding title was issued against the illegal logging activity on
Haida Gwaii, specifically on Block 6, where “EAGLE,” a non-profit Indigenous environmental law firm, represented the Haida Nation in court [18]. The most important component in elevating this injunction was an unfinished canoe discovered in the area being cleared by loggers [19]. The injunction was filed by Haida activist, hereditary chief, and former CHN president Guujaaw (Gidansda Giindajin Haawasti Guujaaw), who argued that the canoe had been unfinished and untouched for hundreds of years, demonstrating that the Haida people occupied and nurtured these lands long before settler arrival [20]. For trees to be harvested in the right condition for canoes, according to Haida teachings, they have to be at least 800 years old, and totem poles have to be at least 400 to 500 years old [21]. Two years later, in 2004, there was a significant breakthrough as the Supreme Court of Canada (SCC) had overturned their initial decision and declared that the provincial government and Weyerhaeuser Co. had a duty to consult in good faith and accommodate the Haida Nation in respect to extracting from Block 6 [22]. Discussions going forward were to be civil between all parties, and the hope of this appeal was to create a foundation for guidelines of respect, consultation, and reconciliation.
Writ of Summons and Statement of Claim – Aboriginal Title
After the initial findings by the judge in the Haida Nation v. British Columbia 2004 case, the Council of Haida Nation (CHN) filed a Writ of Summons and Statement Claim, pursuing “formal” ownership of the entire territory and surrounding waters [23]. This was submitted after the provincial liberal government announced plans to repeal the oil and gas prohibition and allow drilling in the Hectar Straits, putting the ocean and marine life at risk [24]. Guujaaw had stated, “This case is about respect for the land and each other… what we’re doing today is taking charge of our lives. We’re going to make sure that there’s a future for following generations [25].” This lawsuit would be pursued by the Haida Nation before it was held in abeyance in 2008 to fulfill nation-to-nation negotiations outside of the court system [26].
Haida Legal Readiness
The strength and determination behind the Haida Nation's governance and legal team was not just their unshakable resolve in their fight for title, but also their extremely impressive legal readiness before the courts. The Haida Nation knew that in order to build their title case, they needed to organize and prepare themselves to the point where their claims could not be denied. Even as Guujaaw stated, “We wouldn’t go in there if we didn’t expect to win [27].” One of the first steps that the Haida Nation took to strengthen their title case was to clarify and improve boundary marks and relations with other surrounding First Nations. The Haida Nation had organized two separate meetings with their southern neighbours, the Heiltsuk Nation, who occupied their ancestral lands and waters of Waglisla (Bella Bella) since time immemorial [28]. In these negotiations, they defined ocean boundaries, which were cut right in half between the nations. Their efficient approach to negotiation and creating clarity between the two nations ultimately led to the signing of the Treaty of Peace, Responsibility, and Respect [29]. This agreement declares a newfound relationship after their complex history as neighbouring nations. It notes from the Heiltsuk Nation that the Haida Nation has launched a title case against Canada and British Columbia, and that the Haida Nation acknowledges the Heiltsuk Nation's assistance in their title and rights case as a vital support group [30]. The Haida Nation's efforts in affirming boundaries were also extended to the Tsimshian Nation, where the two nations signed the Declaration of First Nations of the North Pacific Coast in their commitment to protect and restore their waters with understood boundaries [31].
Furthermore, another aspect of the Haida’s legal readiness for their title case came from within the community of non-member Haida residents. On November 21, 2006, the Haida Nation and the Village of Queen Charlotte signed a protocol agreement that promised for both communities to work together towards environmental and economic issues [32]. This protocol agreement was signed by Mayor Carol Kulesha and CHN President Guujaaw, which highlighted the importance of maintaining the land, forests, ocean, and people of the island [33]. In the joint agreement, it also included their openness to the existing relationship with the Crown that could not be ignored; instead of working against them, they opened up a path of reconciliation between all parties.
Moreover, the Haida’s legal readiness that was crucial behind their success to title was strengthening their own infrastructure as a nation. Through their hereditary, matriarchal, and band councils, they needed to establish a clear and strong blueprint to put forth to the court on how they are a strong and sovereign nation who has managed and can continue to manage Haida Gwaii. They had strengthened their own infrastructure by creating a “governance negotiation group” and improvements within CHN to demonstrate how their lands are managed, the roles upheld, budgeting, and how these protocols are upheld in their own governing bodies [34]. These were exemplified through their own constitution, accord, frameworks for negotiation, etc. Through the Haida Nation's organization and preparedness, it was frustrating and discouraging to work with the Crown, to say the least. The Haida Nation had agreed to put the title case on hold (abeyance) in 2008 to negotiate outside of the court system and entertain treaty discussions, as per the federal government’s request, however, the Crown was lacklustre. The government was refusing to be flexible and produce anything outside of their existing and inadequate federal programs [35]. The abeyance agreement expired on June 16, 2012, which allowed the Haida Nation to bring their case back to the court. In return, the federal government expressed their last-minute desire to continue to “negotiate” rather than litigate, even though they were uninterested in active change [36]. As discouraging as it was dealing with the federal government, the abeyance on the title case was actually beneficial for the Haida nation and provincial government. They were able to enter into joint management agreements to protect the lands, slow the logging, and even return the original name of Haida Gwaii as part of the renaming of it in 1787 to the Queen Charlotte Islands [37].
Strengthening their title case was aided by the relentless determination of the Haida Nation, effective legal preparation, and proactive relationship-building with surrounding nations and local communities. The Haida Nation had made a strong case for future discussions by defining limits, building alliances, and proving strong self-governance. Notwithstanding
obstacles and frustration in their rigid discussions with the federal government, their dedication to legal preparedness and preservation of Haida Gwaii not only improved their governing structures but also created a strong model of Indigenous leadership and nationhood.
Provincial Commitment Transformation—DRIPA/UNDRIP
As Indigenous nations and the Government of British Columbia have had a long and complex relationship, there was a beacon of hope when the provincial government formally implemented the Declaration on the Rights of Indigenous Peoples Act (DRIPA) (2019) to affirm the rights, well-being, dignity, and survival of Indigenous people [38]. The Gaayhllxid/Gíihlagalgang "Rising Tide" Haida Title Land Agreement was the first Indigenous agreement in British Columbia to successfully uphold the principles of DRIPA in negotiation, resulting in more effective and balanced discussions [39]. The negotiations for this agreement were comprised of British Columbia government officials, the Council of Haida Nation (band), members of the Hereditary Chiefs Council, and two additional Village Councils that were a part of the Haida ‘negotiation group for governance’; an improvement from previously excluding hereditary chiefs and other government leaders [40].
The negotiation process occurred in the Legislative Assembly of British Columbia to ensure all voices, concerns, and testimonies were collectively heard. These meetings comprised a minimum of one opposition member, one government member, and one representative from the Haida Nation [41]. During these meetings, representatives of the Haida Nation were allotted one hour to present their viewpoints and arguments to all attendees in the legislature. It allowed them to openly express their concerns, emphasize the significance of their laws, present their evidence of title, discuss future collaborations with members of the Haida Nation and local governments, and collaborate on the provincial government's role in their reconciliation efforts [42].
During these collaborative discussions, representatives of the Haida Nation conveyed
community feedback, which was gathered in an ethical and accessible manner; this ensured that all voices were heard in the process [43]. All councils and people of the Haida Nation participated in council meetings (both in person and online for live streaming) as well as submitting proof of title through oral story recordings, archives, pictures, regalia, etc [44]. These meetings and updates were disseminated on Facebook and the Haida Laas–Haida Nation Newsletter to ensure all members on and off reserve could partake in the process [45]. This efficient method fostered collaboration and consultation inside the community and undeniably strengthened Haida governance and sovereignty in the process. The productive community conversations resulted in the initial and only draft of the Gaayhllxid/Gíihlagalgang "Rising Tide" Haida Title Land Agreement receiving a favourable vote from Haida members at 95% [46].
Conclusion
The Gaayhllxid/Gíihlagalgang "Rising Tide" Haida Title Land Agreement was finalized
outside conventional judicial proceedings and clearly facilitated more productive dialogues,
viewpoints, comprehensions of historical and contemporary events, and a more promising plan of supporting Haida sovereignty. The success of the provincial agreement had even pushed the federal government to collaborate with the Haida Nation and establish the Chiix̲uujin/Chaaw K̲aawgaa “Big Tide (Low Water)” Agreement. Both of these agreements promised to restore balance and build a foundation of hope for future generations. Although there are a lot of transformative principles in both of these agreements, they exclude the ocean and marine areas beyond the low-tide mark due to jurisdictional complexities and many other concerns that must be addressed.
The Haida Nation's pursuit of Aboriginal title to Haida Gwaii is a significant milestone in carrying on the fight for sovereignty, rights, and self-determination for future generations. These agreements not only validate the Haida Nation's inherent jurisdiction to their ancestral territories but also establish the groundwork for joint decision-making, governance, reconciliation, and the incorporation of Indigenous laws and values within provincial and federal systems. Although these collaborations signify monumental advancements, further negotiations are needed. The Haida Nation's resiliency serves as a model for other communities involved in nation-to-nation discussions, demonstrating that continued commitment, equitable interactions, and an openness to evolving relationships across all political levels are achievable. Their unshakable resolve is setting the table for future generations to restore full sovereignty and autonomy.
Endnotes
[1] Union of BC Indian Chiefs (UBCIC), “FNLC calls out opposition parties’ baseless and harmful critiques of bill recognizing Haida Aboriginal title,” n.d., https://www.ubcic.bc.ca/fnlc_calls_out_opposition_parties_baseless_and_harmful_critiques_of_bill_recognizing_ha ida_aboriginal_title.
[2] David Patterson, “Indigenous leaders say Trump’s threats to make Canada a 51st state challenges inherent sovereignty,” CBC News, February 16, 2024, https://www.cbc.ca/news/canada/saskatoon/indigenous-leaders-say-trump-s-threats-challenge-inherent-sovereignty-1.7466351
[3] Gordon Christie, “Indigenous legal orders, Canadian law, and reconciliation,” First Nations Governance Centre, 2020, https://fngovernance.org/wp-content/uploads/2020/09/gordon_christie.pdf
[4] Coast Funds, “Haida title federal recognition,” April 15, 2024, https://coastfunds.ca/news/haida-title-federal-recognition/.
[5] John Borrows et al., Braiding legal orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Montreal: McGill-Queen’s University Press, 2023), 24.
[6] Jonathan Weiss, Shaping the future on Haida Gwaii: Life beyond settler colonialism (Vancouver: University of British Columbia Press, 2019).
[7] Douglas White, “Comment: Indigenous rights are nothing to fear,” Times Colonist, February 4, 2018.
[8] CBC News: The Current, “How this family fought to protect Haida Gwaii’s land and culture,” YouTube video, May 13, 2024, https://www.youtube.com/watch?v=fhGIlxR3GE8.
[9] Standing Senate Committee on Indigenous Peoples. "Evidence." 44th Parliament, 1st Session, April 9, 2024. https://sencanada.ca/en/Content/Sen/Committee/441/APPA/77EV-56668-E.
[10] Haida Laas – Newsletter of the Haida Nation, “Journal of the Haida Nation or A Six Stage Process to Negotiate,” June 11, 1994, 1(11): 1–8.
[11] Standing Senate Committee on Indigenous Peoples, "Evidence," April 9, 2024.
[12] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, 3 S.C.R. 511.
[13] Haida Laas – Newsletter of the Haida Nation, “Haida Challenge Weyerhaeuser Tree Farm License,” August 21, 2000.
[14] Haida Laas – Newsletter of the Haida Nation, “Special Edition March 2004,” March 2004, 1–12.
[15] Haida Laas – Newsletter of the Haida Nation, “The Writ,” April 2002, 1–56.
[16] Janine Collie and Christopher Alcantara, “Decoy politics: How settler states deflect Indigenous threats,” Environment and Planning C: Politics and Space 43, no. 2 (2024): 368–386, https://doi.org/10.1177/23996544241267965.
[17] Haida Laas – Newsletter, “Special Edition March 2004.”
[18] Haida Nation v. British Columbia, 2004 SCC 73.
[19] Canadian Press, “Haida Gwaii agreement.”
[20] Haida Nation v. British Columbia, 2004 SCC 73.
[21] Haida Laas – Newsletter, “Special Edition March 2004.”
[22] Haida Nation v. British Columbia, 2004 SCC 73.
[23] Haida Laas – Newsletter of the Haida Nation, “Staffing up,” February 2017, 1–20.
[24] Haida Laas – Newsletter, “Staffing up.”
[25] Haida Laas – Newsletter, “The Writ.”
[26] Haida Laas – Newsletter of the Haida Nation, “HAIDA TITLE: Where We’re At,” 2023, 1–28.
[27] Haida Laas – Newsletter, “The Writ.”
[28] Mary Low, “Practices of sovereignty: negotiated agreements, jurisdiction, and well-being for Heiltsuk Nation” (T, University of British Columbia, 2018), https://open.library.ubc.ca/collections/ubctheses/24/items/1.0375642.
[29] Low, “Practices of sovereignty,” 110.
[30] Low, “Practices of sovereignty,” 110.
[31] Haida Laas – Newsletter, “The Writ.”
[32] Haida Laas – Newsletter of the Haida Nation, “UNITY - Village of Queen Charlotte signs protocol agreement Protecting Gwaii Haanas From Mountain to Sea,” December 2006, 1–16.
[33] Haida Laas – Newsletter, “UNITY – Village of Queen Charlotte.”
[34] Haida Laas – Newsletter of the Haida Nation, “Canoe Steaming, Skidegate Recent Court Ruling Goes Far,” December 2007, 1–12.
[35] Haida Laas – Newsletter of the Haida Nation, “The Nation’s Spring Session,” May 2011, 1–16.
[36] Haida Laas – Newsletter, “The Nation’s Spring Session.”
[37] Osler, Hoskin & Harcourt LLP, “B.C. recognizes Haida Nation’s title to Haida Gwaii: What the historic agreement makes clear and Q&A,” April 16, 2024, https://www.osler.com/en/insights/updates/b-c-recognizes-haida-nation-s-title-to-haida-gwaii-what-the-historic-agreement-makes-clear-and-q/
[38] Nelson Bennett, “Five years on, B.C.’s DRIPA sits in legal and political crosshairs,” Business Intelligence for B.C., 2024, https://www.biv.com/news/economy-la.
[39] Osler, “B.C. recognizes Haida Nation’s title.”
[40] Government of Canada, “Canada introduces legislation to recognize the Haida Nation’s inherent rights of governance and self-determination [News release],” February 14, 2024, https://www.canada.ca/en/crown-indigenous-relations-northern-affairs/news/2024/02/canada-introduces-legislation-to-recognize-the-haida-nations-inherent-rights-of-governance-and-self-determination.html.
[41] Government of British Columbia, “Historic Haida Aboriginal title legislation receives royal assent,” May 16, 2024, https://news.gov.bc.ca/releases/2024IRR0027-000768.
[42] Government of British Columbia, “Haida title legislation.”
[43] Haida Laas – Newsletter, “HAIDA TITLE: Where We’re At.”
[44] Haida Laas – Newsletter of the Haida Nation, “An Open Dialogue Enacting Haida Title,” March 2018, 1–12.
[45] Haida Laas – Newsletter of the Haida Nation, “WE ARE DOING IT,” 2024, 1–15.
[46] Haida Laas – Newsletter, “WE ARE DOING IT.”
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