Authors
Calgary Managing Partner, Calgary
Associate, Disputes, Toronto
Articling Student, Toronto
Background
On December 4, 2024, the Council of the Haida Nation (Haida Nation) and the government of Canada (Canada) entered into the Chiix̲uujin / Chaaw K̲aawgaa “Big Tide (Low Water)” Haida Title Lands Agreement [PDF] recognizing Haida Nation’s Aboriginal title over Haida Gwaii (the Federal Agreement).
As we wrote previously, on April 30, 2024, British Columbia (B.C.) and the Haida Nation entered into the Gaayhllxid • Gíhlagalgang “Rising Tide” Haida Title Lands Agreement [PDF] in which B.C. recognized Haida Nation’s Aboriginal title over Haida Gwaii (the Provincial Agreement). As Canada was not a party, the Provincial Agreement did not address or derogate from Canada’s interests in Haida Gwaii. The Federal Agreement answers some of the questions regarding Canada’s interests in Haida Gwaii.
The Federal Agreement
Likely the most notable development from the Federal Agreement is Canada will now jointly support the Haida Nation’s ongoing court case seeking a title declaration under section 35 of the Constitution (the Haida Title Case).[1] The Haida Title Case presents a unique scenario in which all parties — the Haida Nation, Canada and B.C. — are jointly seeking a title declaration for the Haida Nation.[2]
The structure and language of the Federal Agreement largely mirrors or mimics the Provincial Agreement. Like the Provincial Agreement, the Federal Agreement
- does not derogate from fee simple interests, village and reserve lands, and the delivery of public services (such as postal services and navigation systems) on Haida
- provides that land and resource management decisions on Haida Gwaii[3] will be made consistent with Haida Aboriginal title[4]
- provides that Crown lands that are no longer required for the purpose for which they are held by Canada will return to the Haida Nation[5]
Unlike the Provincial Agreement, which provides for an estimated two-year transition process, the Federal Agreement includes an estimated five-year transition process.[6] The parties have committed to negotiating multiple important issues during the transition process, including the process for determining whether lands with federal interests are no longer needed by Canada, and a process for returning those lands to the Haida Nation,[7] the reconciliation of each party’s laws and jurisdiction,[8] and six enumerated issues[9] (collectively the Deferred Issues).
The Federal Agreement also includes Aboriginal title over the foreshore and an extended low-water mark.[10]
Conclusion
The Federal Agreement is a historic step in Canada’s recognition of Aboriginal title through agreement and settlement rather than court order. However, a few questions remain. Most notably:
How will the courts handle a joint Aboriginal title claim?
Historically, it has been difficult for parties to establish Aboriginal title claims under the test the Supreme Court of Canada laid out in Delgamuukw v. British Columbia.[11] In The Nuchatlaht v. British Columbia, the Court granted a limited Aboriginal title after Canada and B.C. consented to the Nuchatlaht being able to argue for a more limited title claim than what they initially sought.[12] It remains to be seen how a court will handle Canada, B.C. and the Haida Nation jointly seeking an Aboriginal title claim over all of Haida Gwaii.
How will the parties negotiate the deferred issues?
The deferred issues include some of the most important aspects of the agreement. By deferring the negotiation of these items, the parties have delayed a substantial and meaningful portion of negotiations. How these issues are resolved during the transition process will be critical in effecting the Federal Agreement.
[1] Federal Agreement s. 8.1(a).
[2] Federal Agreement s. 8.1(a).
[3] Federal Agreement s. 1.2
[4] Federal Agreement s. 4.23.
[5] Federal Agreement s. 4.3
[6] Federal Agreement, Appendix A, s. 3(b)
[7] Federal Agreement s. 4.3
[8] Federal Agreement s. 3.3.
[9] airspace, fiscal arrangements, taxation, fisheries and related matters, other marine matters, other matters. See Federal Agreement s. 6.1.
[10] Federal Agreement s. 9.1
[11] [1997] 3 SCR 1010 [Delgamuukw].
[12] 2024 BCSC 628
