Title case an opportunity for all: Haida lawyers

  • Fri Nov 29th, 2002 7:00am
  • News

The Haida title case is an opportunity for all islanders to create a model the world can look to for sustainable living together, Council of the Haida Nation lawyer Terry-Lynn Williams-Davidson told an audience in Queen Charlotte Thursday (Nov. 27).
The presentation, second in a series sponsored by the Gowgaia Institute, focused on the title case now before the courts and its implications.
“What this opportunity is, is for all of us to take Haida Gwaii out of concealment and say ‘this is the model that we have created collectively together, that we can hold to the rest of the world, and say this is a way for us to live together on the land, that is sustainable for the whole world, not just for Haida Gwaii,” Ms Williams-Davidson said.
The presentation began with lawyer Louise Mandell outlining a brief history of aboriginal/constitutional law in Canada, then focusing on the Haida title case filed in court last month.
Ms Mandell said unlike in the rest of Canada, very few treaties were reached with aboriginal people in British Columbia, although British law from 1763 on required that pre-existing native rights had to be respected, and that if the colonizers wanted to acquire the land, they should have done so through treaties.
“Â…the colonizers, who then became the colonial government, abandoned any effort to try and make treaties. And what they started to do was to just steal the landÂ…” Ms Mandell said, justifying such action through numerous excuses which only became apparent in the last few years as aboriginal rights trials have made them clear. The excuses included that aboriginal people were so low on the scale of civilization that they could be ignored, to the aboriginal peoples interest in the land was wiped out when they moved onto reserves. Ms Mandell pointed out that in court case after court case in the last few years each and every such excuse has been found not to be valid.
“The Supreme Court of Canada said ‘let’s face it, we are all here to stay’ and put a duty on the government to negotiate,” she said of the 1997 landmark Delgamuukw court ruling. But even after that, the province was slow to adjust. “The government went into its huddle and come out with a whole new theory of how all that law didn’t matter at all. The Delgamuukw decision and the principles of reconciliation, the removal of extinguishment arguments from the equation, none of that mattered, said the province, none of that is grounded, it is all theory in the air, it doesn’t really affect us until a First Nation proves their title in court, ” she said, “you have to prove your title for us to be required to consult, for us to be required to accommodate, for us to create a reconciliation before interest in the land is taken away, for us to recognize aboriginal people, you have to go to court to prove your title.”
After that, the Haida launched what has since come to be known as the TFL 39 case . “What the court said is ‘you’re right’ there is a sound case that the province and Weyerhaeuser ought to have considered prior to issuing or renewing TFL 39,” Ms Mandell said, “so the court placed a duty on Weyerhaeuser and the province to negotiate and accommodate in good faith with the Haida people.
That decision as a matter of law created a number of consequences, the biggest of which being the province, for the first time, has been forced to deal with the problem of coexisting title and try to take the next step towards reconciliation prior to the proving of title.”
Against this background, the Haida announced last Spring that they would take their title case to court, and the statement of claim was filed in mid-November. Ms Mandell pointed out that the statement outlines what the Haida intend to prove and what they hope to win. It will be followed before the trial by a statement of defence from the province.
“What is new about this from the point of view of aboriginal law,” Ms Mandell , who has been active in First Nations’ lawsuits since the late 1960’s said, ” is that the map goes into Hecate Strait. It takes up an area of ocean, not just land. Prior to this all of the land title cases that we are aware of have not extended out to the ocean, but we are going to prove title to the ocean because that’s a very integral piece to how the Haida people have occupied Haida Gwaii.”
The title case also will prove that the Haida people exclusively occupied Haida Gwaii in 1846, a key legal date when British law came into force here.
“The Haida Nation in 1846 lived on the land, they harvested from various resource areas, they exercised their laws,” Ms Mandell said, “we speak about in the claim and we will prove they maintained a spiritual relationship with the beings and the spirits of the earth and the forest, the sea and the sky. They established trade relations with other indigenous nations and they governed Haida Gwaii
according to their laws.”
“This is our claim,” Ms Mandell added, noting that in court, evidence will be presented to show that from several sources, including Haida oral history, logs of ships which visited the islands in past centuries and the photographs taken at the turn of the last century by G.M. Dawson.
“And then we say that in spite of the intended disregard of the Haida people and their title, the Haida people continue to maintain a substantive relationship to Haida Gwaii today. And we’ll do that by showing all that the people have done, even in spite of the difficulties created by the government’s issuance of tenure, in continuing to live on the land, continuing to use it, continuing to try to manage it, continuing to evolve political institutions, continuing to maintain laws,” she said, “and we’ll also show that the Haida Nation has resisted colonization, and has since the very earliest times served notice to the government from 100 years and on, of how they have remained open to seeking appropriate solutions to harmonize crown and aboriginal title. And they have also protested, repeatedly protested the Crown simply taking the land and the resources away and allocating them to third parties.”
Ms Mandell said homeowners on the islands need not worry that the case is about taking back private property. The case, she said, is about the fact that the government gave away various tenures, to logging companies for example, which excluded the Haida people and ended up damaging the land unlawfully under the constitution of Canada, all of which has caused harm to the Haida.
“So we go to court and we win. What do we get?” she said, “what we get are certain declarations” including one saying that the Haida Nation has aboriginal rights and title to Haida Gwaii within the meaning of the constitution. Ms Mandell said also that the Haida want a declaration that the province’s title is encumbered, that the province does not own all the land, mines, minerals and royalties they claim, and that the Haida will be seeking an order for damages or compensation resulting from past unlawful activity.
“This case isn’t about money,” she said, “this case is primarily about the declaration of rights that are at stake.” However, she added that since the province continues to maintain the position that it will not recognize title or pay any money for compensation for past wrongs, that position “as a matter of law needs to be corrected.”
On third party tenures, Ms Mandell said as they exist today, they are irreconcilable with the existence of Haida title and that if there is no accommodation with certain tenure holders, then the Haida would ask that the tenure be invalidated “as the price to start over againÂ…”
But she noted some positive signs happening outside the court process, namely that Haida title is manifesting itself on the islands, that islanders are becoming aware of its implications and adjusting themselves to it.
“The people of Haida Gwaii may very well move a lot quicker than the Crown moved in trying to make the shape of the relationship happen,” she said, “Â…hopefully when the case has finally come to fruition and we are in court we may very well have a remedy that everyone in Haida Gwaii would find to be an acceptable coexistence, which would really be ideal.
The other CHN lawyer then made her presentation. “As a Haida person involved in this litigation I have come behind many people who have created a path to follow,” she said, mentioning Alfred Adams and Arthur Kelly.
She said that despite the burden of laws limiting Haida freedoms over the years, “Haida people have prevailed and tried to make a future for Haida people here on Haida Gwaii.”
The constitution of Canada has created an opportunity for the Haida to challenge laws which infringe on aboriginal right and title, she said.
“And that is what it is really about. It is not so much as claiming Haida Gwaii as belonging to Haida people as it is (about) upholding our responsibility to take care of the land for future generations,” Ms Williams-Davidson said. She pointed out that court decisions such as Delgamuukw have affirmed and strengthened aboriginal rights over the land, but have said such rights are communal, meaning a First Nation is obliged to protect the land for the future.
“If Haida people cannot live on the land and exercise title over the land in a way that prevents future generations from using the land, then our view is that no one else can,” she said, “anything that occurs on Haida Gwaii in the future must be sustainable in order not to infringe on Haida title.”
The title case is an opportunity to pull all islanders together and come up with a model for the future, she said.
“So this case is about finding the heart of human people,” she said, “there is no other opportunity in Canada where we can bring in traditional principles of looking at the land, traditional ways of living with the land and injecting it into the resource management regime,” she said, “there is no opportunity out there. And looking at the various environmental avenues available, it is the only way to do it.”
“What we will be doing is defining a very delicate balance between our relationship with Haida Gwaii.
A very important principle in Haida belief is ‘the world is as sharp as the edge of a knife’,” Ms Williams Davidson said, “and what I feel we are doing with this litigation is finding that very delicate balance on the edge of a knife, where we balance Haida traditional views with scientific evidence, with archaeological evidence, with all other people’s world view of how we are going to live together on this edge of a knife that is Haida Gwaii. What I think we are doing with this case is going back to the original name of Haida Gwaii, ‘islands out of concealment of the supernatural beings’. This is a very special place where we lived totally in relationship with the supernatural beings. Our existence came about because of the supernatural beings bringing Haida people to live on this land and care for it for the future.”
She closed by saying “what this opportunity is for all of us to take Haida Gwaii out of concealment and say ‘this is the model that we have created collectively together, that we can hold to the rest of the world , and say this a way for us to live together on the land, that is sustainable for the whole world, not just for Haida Gwaii.'”