(Andrew Hudson/Haida Gwaii Observer)

(Andrew Hudson/Haida Gwaii Observer)

Haida title case to be heard in two phases

Trial may begin as early as October

A B.C. Supreme Court judge has agreed to try the Haida title case in two phases in the hopes of saving time and legal costs.

No date has been set yet, but the trial could start as soon as October.

At the same time they asked the judge to split the trial into two parts, lawyers for the Haida Nation confirmed that they do not want to eject property owners from the islands or to cancel land tenures and permits here — they only want B.C. and Canada to compensate them for losses related to their Aboriginal title and rights.

In a Feb. 22 ruling, B.C. Supreme Court Justice Andrew Mayer called the Haida title case “incredibly expansive and complex.”

Justice Mayer noted that the case will raise several legal issues that no Canadian court has ever dealt with before, including a claim of Aboriginal title over private lands and lands submerged by the sea.

Aside from saving time and money in a complex case, Justice Mayer said he hopes that having two phases will encourage all three parties — the Haida Nation, B.C., and Canada — to reach a settlement after some key issues are resolved in Phase 1.

“While Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests,” he wrote, quoting the Supreme Court’s decision in the TFL 39 case — another Haida Nation case that set a precedent for how Canada should consult First Nations about natural resources.

2018bcsc277 by Andrew Hudson on Scribd

When it goes to trial, Phase 1 of the Haida title case will deal with the Haida Nation’s principle claim — that the Haida hold Aboriginal title and rights over all of Haida Gwaii, including the land, waters, seabed, airspace, and all its living creatures.

According to the claim, B.C. and Canada mainly infringed on the Haida’s Aboriginal rights and title through forestry, fisheries, and by alienating the Haida from parts of the land.

Phase 2 will be a sort of accounting phase, where the court will count up any damages against the Haida, and also the revenues that B.C. and Canada have collected from the islands’ natural resources.

Even in two phases, the Haida title case is expected to take a long time to hear.

In 2015, when the Ahousaht trial was similarly divided, the first phase took 124 days of court time, and the second phase took 152.

While Justice Mayer agreed with the Haida Nation that splitting the case in two phases is a good way to manage it — a move that B.C. and Canada also generally supported — he did not agree that Phase 1 should determine the Haida Nation’s Aboriginal rights in a broad way, without also looking at how Canada and B.C. may have infringed on those rights in the past, and whether those infringements were justified.

In his ruling, Justice Mayer mentioned that he will likely be the judge to hear the Haida title case.

A former vice-president of commercial and regulatory affairs for the Port of Prince Rupert, Mayer was appointed to the B.C. Supreme Court last April.

In 2011, while acting as the Port’s in-house counsel, he negotiated with the Coast Tsimshian to compensate them for infringements on their land rights caused by the expansion of the Fairview Terminal.