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Court tosses notice requests in Haida title case

B.C.’s Supreme Court has rejected B.C. and federal government requests to formally notify all landowners and tenure holders on Haida Gwaii that their holdings may be negatively affected by the Haida title case.
(Joe Mabel/Flickr photo, cropped)

B.C.’s Supreme Court has rejected B.C. and federal government requests to formally notify all landowners and tenure holders on Haida Gwaii that their holdings may be negatively affected by the Haida title case.

Writing as the case management judge, Justice Barbara Fisher ruled on Sept. 20 that, first of all, requiring the Haida Nation to send formal notices to owners of all 3,285 private properties on Haida Gwaii would “make an already complex case unmanageable.”

Furthermore, the judge said it would be a step back for reconciliation.

“Ultimately, requiring the plaintiffs to give the notice sought would, in my view, create unnecessary fear in the non-aboriginal community in Haida Gwaii given that actions for ejectment may never actually be brought,” Justice Fisher wrote.

“Moreover, similar to requiring private landowners to join the action, giving notice would have a negative effect on the objective of reconciliation.

“This is especially so here, where the Haida Nation has in the past largely focused on reconciliation, as evidenced by their agreement with the Crown defendants to formally protect 52 per cent of the land base of Haida Gwaii and share and jointly manage almost the entire land base.”

It was the two Crown defendants in the Haida title case — the province of B.C. and the Attorney General of Canada — who argued that the Haida Nation should send formal notices to the private-property and tenure holders.

B.C. and Canada both argued it would be unfair if, after the title case is resolved, the Haida Nation retained the right to take more legal action against those third parties. On Haida Gwaii, the total value of private property is assessed $485.5 million.

The province, in particular, tried to argue that if the Haida Nation doesn’t serve notice now, it should give up any future legal action against those parties.

In response, the Haida Nation said as far as the title case goes, they are only seeking relief from the Crown — not third parties.

Representatives for the Haida Nation also said it’s much too early to say what, if any effect a future declaration of Haida aboriginal title might have on landowners or tenure holders down the road.

The Council of the Haida Nation v. British Columbia, 2017 BCSC 1665 by Andrew Hudson on Scribd

Justice Fisher agreed, echoing a similar ruling made two weeks earlier in a Cowichan title case.

Both judges found that in such aboriginal title cases, the interests of third parties are best left for another day — the court has other ways to make sure private landowners and tenure holders are dealt with fairly.

In fact, on April 7, the Haida Nation changed its original suit against B.C. and Canada to drop an order for the province to cancel all the Crown land tenures, permits, and licences issued without proper accommodation since the Haida first filed suit in 2002.

The Haida Nation has also acknowledged in court that if they succeed in the title case, there can be no further legal action against third-party tenures the Crown has already paid compensation for.

The Haida title case is expected to go to trial late this fall, 15 years after the Haida Nation first sued the Crown to declare aboriginal title and rights over all of Haida Gwaii, including the land, waters, seabed, and air space.

The Haida Nation makes the claim as the only people to occupy Haida Gwaii before Europeans asserted sovereignty here in 1846.

The claim includes damages and compensation from the Crown for unlawful occupation and appropriation of Haida Gwaii, unjustified infringement of the Haida Nation’s title and rights, plus trespass and nuisance for unlawful interference.

As Justice Fisher noted in her ruling, although the 1973 Calder case, the 1997 Delgamuukw case, and 2014 Tsilhqot’in case have all developed the law regarding aboriginal title, the Haida title case will be the first to clarify what aboriginal title means for lands that include private property.

While the Haida Nation has said aboriginal title and private property can co-exist, B.C. and Canada argue that the two are inconsistent.

“The fundamental issue at play here concerns the meaning and scope of a declaration of aboriginal title and rights over lands that include those held by private interests,” Justice Fisher said.

“This is a complex issue that will be determined much later in the course of this litigation.”