The Haida Nation has lost an appeal about how the Haida title case will go to trial.
Given how complicated it is, the Haida, B.C., and Canadian governments all agreed it would save time and money to hear the case in two phases.
The hope is that if phase one goes well, the parties can settle without phase two, or can at least keep it short.
But the parties disagreed on what each phase would deal with.
Writing last Tuesday as part of a three-judge panel with the B.C. Court of Appeal, Justice John Hunter said that first of all, higher courts can only overrule the way a trial court judge chooses to hear a case if there is a serious injustice or error in principle.
“For the reasons given in this judgement, I am of the view that no error of law or principle has been established to warrant interference by this Court,” he said.
Haida Nation v. British Columbia (Attorney General), 2018 BCCA 462 by Haida Gwaii Observer on Scribd
In its appeal, the Haida Nation argued that the way the trial judge organized the case would lead to a return of the so-called “small spots” or “postage-stamp” approach to Aboriginal rights.
That is an approach where courts only consider specific Aboriginal rights to specific parts of a territory, which has the effect of freezing the rights in time and narrowing them to particular areas.
But Justice Hunter and the other Court of Appeal judges said that is not the trial judge’s intention.
Related: Haida title case to be heard in two phases
Although the case will deal with some specific issues in phase one — alleged damages to five marine species, one forest area, and seven properties over which the Haida Nation claims title — they said the idea is not to take a “postage stamp” approach, but to look closely at a few examples of alleged damages so any remedies can be scaled-up to account for the whole of Haida Gwaii.
The Court of Appeal judges also found that in the context of a lawsuit such as the Haida title case, courts can’t declare Aboriginal rights in the broad, abstract way the Haida Nation was seeking to do in phase one, without also considering possible justifications that the B.C. or Canadian governments may have had for infringing those rights.
Although Section 35 of Canada’s 1982 Constitution Act includes protections for Aboriginal title and rights, it does not strictly define them. They are instead defined on a case-by-case basis.
On that point, Justice Hunter followed the trial judge in quoting an earlier court decision where the Cheslatta Carrier First Nation sought a court declaration that it has an existing Aboriginal right to carry out Cheslatta fisheries.
“It is clear that any aboriginal ‘right to fish’ that might be subject of a declaration would not be absolute,” wrote the judge in Cheslatta.
“Like other rights, such a right may be subject to infringement or restriction by government where such infringement is justified.”
“The point is that the definition of the circumstances in which infringement is justified is an important part of defining the right itself.”
While the provincial government sought to uphold the existing organization for the case, the federal government did not take a position on the issue.
andrew.hudson@haidagwaiiobserver.com
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