By Heidi Bevington-The Council of the Haida Nation's aboriginal title case is baseless and should be dismissed, according to both the federal and provincial governments, which have filed their statements of defence against the Council of the Haida Nation's title claim.
The CHN filed a statement of claim in November 2002 with the BC Supreme Court, claiming aboriginal title to the land, air and water of the islands, and marine area surrounding the islands. Both the federal and provincial governments submitted their statements of defense in June; these statements have just been made public.
Both the feds and province say the Council of the Haida Nation has no valid claim to the islands, and in any case it waited too long to complain.
Not only does the provincial government deny the CHN has a claim to the islands, it denies the existence of a Haida Nation. The federal government admits the Haida Nation exists, but denies it has any claim to the islands.
"British Columbia denies that prior to and since1846, the Queen Charlotte's has been occupied and possessed communally and exclusively by a unified, single Aboriginal group, whether known as the Haida Nation or otherwise, and puts the Plaintiffs to the strict proof thereof," says the province's statement.
The statements admit that aboriginal people who shared a common language did live on the islands at the time of first European contact, but that they had no common political identity. "British Columbia says that at or before the time persons of European ancestry first made contact with Aboriginal people who spoke the Haida language, these Aboriginal people lived in small autonomous family groups which were widely dispersed and were not politically unified or organized," says the statement.
Both the federal and provincial governments argue that because Haida society consisted of small, separated villages, that title could only be claimed at those village sites. "Canada says that occupation or possession and any title which might have been generated thereby was or is limited to small, widely separated village or resource gathering sites held by autonomous kin groups rather than the Haida Descendants or the Haida Nation as a whole, and never extended to the whole of the Claim Area," states the federal statement of defense.
In any case, because the original inhabitants of these villages abandoned them long ago, their descendants lost any claim to these lands, say both levels of government.
Both statements go on to argue that the federal and provincial governments have the legal right to control all the resources of the islands, and that the Haida people have not suffered any damages as a consequence of government actions.
Finally both argue that the CHN's claim to the land and to damages is too late.
"The delay has been of such a length and extent that a reasonable expectation has arisen that the defendants, including British Columbia will not be held to account for the ancient obligations that the Plaintiffs allege existed and were breached. Further the Plaintiffs have, instead of bringing suit in a timely fashion, slept on their alleged rights with the result that the public interest required that the action be barred," states the province's statement of defense, and the federal government makes a similar argument.
In one area the federal and provincial governments differ. The province says any claim must be made against the federal government because all aboriginal people are wards of the Crown and "any responsibility of the Crown to provide for the welfare and protection of native peoples are as a matter of constitutional law, fundamentally an obligation and a responsibility of the Crown."
On the other hand, Ottawa's statement says the province must be held liable, because it has received the financial benefit from the resources of the islands.
Both statements ask for the action to be dismissed by the court.
A lengthy period of evidence gathering in preparation for the case is now likely. It earlier was predicted that the case would be heard by the BC Supreme Court in the fall of 2004. It is likely to be appealed to the Supreme Court of Canada, regardless of how that decision goes, meaning a clear resolutions is several if not many years away.