More Questions Than Answers With Signing Of Agreement To Recognize Aboriginal Title On Private Land – Indigenous Peoples

On April 14, 2024, barely two weeks following its public
release,¹ the province of British Columbia (Province)
announced an agreement (Agreement) had been signed by the Province
and the Council of the Haida Nation (Haida Nation) to recognize the
Haida Nation’s Aboriginal title over all lands on Haida Gwaii
– including privately owned lands.² This Agreement
raises many serious questions regarding:

1. the protection of privately owned fee simple interests;




2. the effect of the Province recognizing a constitutionally
   protected Aboriginal right but attempting to limit its application
   by way of a non-constitutional agreement;




3. whether the Province is constitutionally capable of
   unilaterally recognizing Aboriginal title; and




4. whether the Province is in breach of its own legislation
   including the Land Title Act.³

The Province and the Haida Nation are also working on
legislation which would implement the Agreement.⁴ This
Cassels Comment provides important updates from our earlier analysis.

It appears that the Province has not contemplated the impact
that recognizing Aboriginal title, through the Agreement, will have
on private property interests and existing interests in Crown land.
Through the Agreement, the Province has fashioned a version of
Aboriginal title which is unknown at law, creates considerable
uncertainty, and does not promote the reconciliation of Aboriginal
and non-Aboriginal interests which the Supreme Court of Canada has
said is inherent in section 35 of the Constitution Act,
1982.

The Crown is entitled to proactively recognize Aboriginal title
rather than force Indigenous groups to litigate for its
recognition. Recognition, however, must not strain the Canadian
legal and constitutional structure and must support a cogent
understanding of the law.

THE AGREEMENT

The Agreement recognizes and affirms the Haida Nation has
Aboriginal title to Haida Gwaii, protected under Section 35,
Constitution Act, 1982.⁵ It provides that
“Haida Title” includes “ownership of and a right of
jurisdiction over Haida Gwaii.”⁶ It also defines
“Aboriginal title” as having the meaning given to that
term in the common law.⁷

In spite of broad assurances set out in the Province’s
communications and in the Agreement that fee simple rights on Haida
Gwaii will not be disturbed, significant concerns remain. Simply
put, it is not enough for the Province and its surrogates to say
that the Agreement protects private interests in the face of
constitutional law to the contrary.

FEE SIMPLE LANDS

The Agreement contains irreconcilable provisions as to the
recognition of Aboriginal title over fee simple lands.
Specifically, the Agreement adopts a definition of Aboriginal title
consistent with the common law (which would grant the Haida Nation,
among other things, exclusive use and occupation of land and the
right to consent to its development), yet goes on to state that
private property would not be affected by the recognition of the
Haida Nation’s Aboriginal title.

According to the Province, privately owned land (fee simple
property) will continue under provincial jurisdiction, and the
recognition of Haida Aboriginal title “will not change any
rights associated with fee simple land.”⁸ Given the
Province’s recognition of Aboriginal title acknowledges a
constitutionally protected right and the Agreement contains mere
contractual commitments that, on their face, cannot limit or fetter
the acknowledged Aboriginal right, the feasibility of these
contractual assurances is quickly called into question. The rights
in land which flow from both a fee simple interest and Aboriginal
title interest (which is constitutionally defined and protected)
include exclusive rights to use, occupy, and manage lands. The two
interests are fundamentally irreconcilable over the same piece of
land.

The Agreement provides that all lands on Haida Gwaii are vested
in the Haida Nation’s Aboriginal title, “consistent
with the rights and interests in Fee Simple
Lands.”⁹ Interestingly, this clause does not
provide that Aboriginal title on Haida Gwaii is “subject
to” the rights and interest in Fee Simple Lands.

The Agreement states that nothing contained therein is intended
to derogate from “Fee Simple Interests“
on Haida Gwaii. Fee Simple Interests are defined as follows:

Through the Agreement, the Haida Nation “consents to Fee
Simple Interests on Haida Gwaii continuing under British
Columbia’s jurisdiction.”¹¹ This is
fundamentally irreconcilable with recognition of Aboriginal title
over said fee simple lands. In addition to the uncertainty such
recognition creates, the Province has not identified what would
occur in the future if the Haida Nation and subsequent generations
revoked consent for Fee Simple Interests to continue under
provincial jurisdiction or otherwise terminated the Agreement.

The law is clear: Aboriginal title, once established by
agreement or judicial declaration, requires the Crown to seek the
consent of the Aboriginal title holder for development on all lands
subject to Aboriginal title.

The indefeasibility of fee simple title is an essential
element of the real property system on which landowners and our
economy rely. Significant questions remain regarding whether the
Province has undermined the indefeasibility of fee simple title and
whether this breaches fundamental aspects of statutes such as the
Land Title Act.

OTHER EXISTING INTERESTS

The Agreement provides that decisions related to
“Other Existing Interests” will be made
in accordance with Haida Aboriginal title. Other Existing
Interests is defined as follows:

This provision would likely require any Crown decision related
to existing interests to be made in accordance with the consent or
justification requirement outlined by the Supreme Court of Canada
in Tsilhqot’in v. British Columbia:

This is likely to impose a significant burden on those with
existing interests in Crown land. In addition, following
Tsilhqot’in, it is possible that existing
authorizations may have to be revoked, if the Crown felt their
continuance would unjustifiably infringe the recognized Aboriginal
title of the Haida Nation.

DECISION-MAKING

The Agreement provides that land and resource management
decisions on Haida Gwaii under provincial jurisdiction will be made
consistent with Haida Aboriginal title.¹⁴

While the Agreement purports to protect Fee Simple Interests,
this provision would, on its face, require the Crown to follow the
consent or justification process highlighted above and in
Tsilhqot’in with respect to development on Fee Simple
Lands: after Aboriginal title to land has been established by court
declaration or agreement, the Crown must seek the consent of the
title-holding Aboriginal group to developments on the
land.¹⁵ This is the bundle of rights associated with
constitutionally-protected Aboriginal title. A government cannot
contractually limit the scope of an Aboriginal right unless by way
of treaty or land claim agreement.

THE AGREEMENT IS NOT A TREATY

The Agreement specifically provides that the Agreement is not a
“treaty” within the meaning of section 35 of the
Constitution Act, 1982, yet purports to recognize and
affirm the highest form of Aboriginal right protected by the
Constitution – the right to land.¹⁶

The Agreement purports to limit the scope and application of
Aboriginal title – something which would appear, on its face,
to be beyond the jurisdiction of the Province acting unilaterally
in contract with the Haida Nation.

A treaty between Canada, British Columbia and the Haida Nation
could limit the scope, content, and application of recognized
Aboriginal title but Canada is not a party to the Agreement and the
Agreement is not a treaty protected by section 35, Constitution
Act, 1982.

This raises a core question behind the Agreement: is the
Province constitutionally competent to reach an agreement and
legislate over the unilateral recognition of Aboriginal
title?

Section 91(24), Constitution Act, 1867 provides to the
Parliament of Canada (the federal government) exclusive legislative
jurisdiction over “Indians, and lands reserved for the
Indians.” While the Supreme Court of Canada has, to some
extent, moved away from the strict application of federal and
provincial and provincial authorities in favour of a more
cooperative version of Canadian federalism, significant questions
remain about Provincial authority to take positive action to
legislate the recognition of the highest form Aboriginal right.

Regardless of the Province’s capacity or legislative
competence, significant inconsistencies between fee simple and
Aboriginal title interests remain.

NO INFRINGEMENT PERMITTED

The Agreement provides a mechanism by which the Province or the
Haida Nation can submit a particular subject for negotiation.
Either party may provide a written notice of its readiness to
negotiate a particular subject matter for inclusion as a schedule
to the Agreement.¹⁷ The Province and the Haida Nation
will seek to reach agreement on a schedule within twelve (12)
months of such a notice.¹⁸

Crucially, however, it would appear the Province has, through
the Agreement, fettered its ability to justify any infringements to
Haida Nation Aboriginal title in the resolution of issues included
in a schedule to the Agreement. Appendix “A”
provides:

Justification for infringement, in the furtherance of broader
societal interests, is a core governing tool developed by
the Supreme Court of Canada for the Crown to use to
balance Aboriginal and non-Aboriginal interests and their
respective claims, interests, and ambitions.²⁰ It
recognizes that governments must legislate for societies as a
whole (this is similar, in kind, to section 1 of the
Canadian Charter of Right and Freedoms which allows for
reasonable limits (infringements) to be placed on rights where they
are demonstrably justified in a free and democratic society).

By fettering any discretion to reconcile Aboriginal and
non-Aboriginal interests in the resolution of items submitted as a
schedule to the Agreement, the Province appears to have determined
that, on Haida Gwaii, an Aboriginal interest takes priority over
any consideration of competing non-Aboriginal or broader
societal interests.

CONCLUSION

The Agreement introduces significant uncertainty for those with
fee simple lands on Haida Gwaii and for those who rely on the
stability and long-term nature of Crown land use authorizations for
their business operations. The Agreement also creates uncertainty
regarding what else the Province is considering to further their
version of “reconciliation.” For example, does the
Agreement give any insight into the Province’s views on the
rights of private property owners in the face of other Aboriginal
title claims?

Contrary to the assertions of the Province, the Agreement
creates even greater uncertainty than litigation by fashioning a
version of Aboriginal title which is unknown at law and may not be
within the legislative competence of the Province to recognize.

The Province has attempted to assuage concerns that fee simple
interests on Haida Gwaii could be impacted by such a sweeping
recognition of Aboriginal title but does not appear to have
considered the fundamental inconsistency which exists between fee
simple and Aboriginal title interests in land.

The Agreement provides no mechanism for engagement with
non-Aboriginal interest holders on Haida Gwaii and it is unclear,
to date, how the Province intends to engage private landowners with
regard to the potential impacts of the recognition of Aboriginal
title over fee simple lands, including impacts on land values and
financing, project development, or other land use activities.

The Haida are entitled to work with the Crown to resolve
historic differences and have their Aboriginal title recognized,
but the Crown, who is duty-bound to govern on behalf of all British
Columbians, must articulate an understanding of Aboriginal title
which is consistent with Canadian law and the rights and interests
of other landowners.

It is not enough for the Province and its surrogates to say that
the Agreement protects private interests in the face of
constitutional law to the contrary. It has become increasingly
clear that there is a palpable need for a long-term sustainable
public policy approach to these issues that is respectful of
Canadian law, and which balances the rights of Indigenous
peoples with the rights of non-Indigenous peoples in a fair and
reasonable way. These issues do not lend themselves well to
election-cycle decision-making but rather demand a longer-term,
strategic, and thoughtful approach.

Footnotes

1. Haida Title Lands Agreement Between the Haida Nation
and British Columbia (online) [Agreement].

2. Office of the Premier, Haida Nation, B.C. recognize
Haida Aboriginal title, a historic first in Canada (online).

3. Land Title Act, R.S.B.C. 1996, c.
250.

4. Province of British Columbia, General Fact Sheet on
Draft Agreement (online).

5. Agreement at 2.1.

6. Ibid. at 9.1.

7. Ibid. See for example Delgamuukw v.
British Columbia, [1997] 3 S.C.R. 1010, Tsilhqot’in
Nation v. British Columbia, 2014 SCC 44.

8. Province of British Columbia, Draft Agreement on Haida
Aboriginal Title: March 15, 2024 (online); see also Agreement at 1.2a and
4.6.

9. Agreement at 8.7.

10. Ibid. at 9.1; “Fee Simple Lands”
means all fee simple estates in land held by indefeasible title, as
defined in the Land Title Act, or other means.

11. Ibid. at 4.5.

12. Agreement at 9.1.

13. Tsilhqot’in Nation v. British
Columbia, 2014 SCC 44 at paras. 90, 92.

14. Agreement at 4.19.

15. Tsilhqot’in Nation v. British
Columbia, 2014 SCC 44 at para. 90.

16. See Agreement at 8.8: This Agreement is not a treaty
but is part of a reconciliation process.

17. Appendix A, at 3.

18. Appendix A at 4.

19. Appendix A at 9b.

20. Mikisew Cree First Nation v. Canada (Minister of
Canadian Heritage), 2005 SCC 69 at para. 1.

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