Should Be OK ... Maybe

The BC government is giving 100% of Haida Gwaii to the Haida Nation, who live in 2 villages (Old Masset and Skidegate) with a combined population of about 1,360 (according to Indigenous Services Canada). Another 1,140 or so Haida members live on the islands, off-reserve. Haida Gwai’s total population is around 5,000 – half are Haida members and half are non-members.

According to the Business In Vancouver report, BC's Haida Nation to have title over all of Haida Gwaii, former Attorney General and indigenous treaty expert, Geoff Plant, doesn’t see a problem:

“The result of being able to do this by negotiation is you can be very clear about excluding private land, local government and public infrastructure from this declaration of title, for now,” Plant said.

“They carved out private lands, so that question does not arise right now. There is an ample opportunity over time for the Haida to sort out what the right regime will be for land use and resource use on Haida Gwaii. But the question doesn’t arise today.

“In the long run, these things are going to have to be sorted out, but I don’t think that they are necessarily a problem now.”

He might think differently if he owned Haida Gwaii property and was one of the roughly 2,500 non-members who just found out that their fee simple life savings will now be tied to aboriginal title. Will they be able to sell, and at what reduced price? Many of those who just lost real estate equity also work in the natural resource sector, and their jobs are now on shaky Crown Lease ground as well.

Our leaders are full of surprises on their path towards divestment of the province to First Nation interests. Last month it was your nearby parkland and docks, today it’s your actual backyard. The law firm Cassels, in their article A Great Unknown: Government Of British Columbia Creates Considerable Uncertainty With Recognition Of Aboriginal Title To Private Land, concludes:

The Province’s position with respect to the Agreement, and its departure from defending private property interests creates significant uncertainty for those with private lands everywhere in British Columbia, including Haida Gwaii, and for those who rely on the stability and long-term nature of Crown land use authorizations for their business operations. Contrary to the assertions of the Province, the Agreement creates even greater uncertainty than litigation by fashioning a version of Aboriginal title which is, to date, unknown at law.

So, the era of absorbing private land into aboriginal title has begun and where it may end is unknown at law. Mr. Plant suggests that the Agreement has avoided major legal confrontation between government and the Haida, but it has likely opened an ongoing Pandora’s Box of matters to be contested in the courts. A constitutional challenge from the affected private land owners will likely start the long legal journey into uncharted territory.

Plant’s position that property rights aren’t a problem for now, is laughable. The announcement surely caused overnight devaluation for the private lands involved. When those fettered rights fully unravel down the road, it will get even worse. Haida Nation will do whatever Haida Nation wants to, and there will be little that non-member residents, excluded from voting, are able to do about it.

And if you think this is a one-off situation in BC, you haven’t been watching very closely.