With the recent Haida agreement, “Rising Tides,” where British Columbia recognizes Haida title to its lands and waters as “Aboriginal title,” we are forced to wonder: is this the same “Title” that Indigenous Peoples west of the Rocky Mountains have been roadblocking, litigating, and petitioning international courts for?

No doubt the Haida have little intention of relinquishing their inherent ancestral titles and rights, their internationally recognized Peoples’ rights to self-determination and control of their own natural wealth. But reading the Agreement reveals there is no doubt the province intends to minimize its recognition of what that entails.

“Aboriginal title is defined under Section 35 of the Canada Constitution Act, 1982, and by the common law.” That is, Canadian law.

A sharp reading of the Rising Tides agreement would argue that what has been achieved is actually the unprecedented recognition by the Council of the Haida Nation: recognition of Canadian jurisdiction. In the text, Haida nation recognizes all of the province’s existing fee-simple titles, tenures, and jurisdictions – without compensation. They say they are working to reconcile these jurisdictions now.

British Columbia and Canada have already been forced to recognize Indigenous jurisdiction in countless ways, so the statement of the crown’s recognition is, if anything, diminished by the phrasing “Haida Aboriginal title.”

Is Haida Title the same as Aboriginal title? Not according to every preceding generation of Haida matriarchs and chiefs. (Check out an archival collection of Haida roadblocking, negotiating and lawfare at the ROADBLOCK page of The West Wasn’t Won.)

“Our place in our country… is that the native people have their homelands, and have control over their own lives; absolute control, with all the responsibilities over our resources and lands. We have to have control. Otherwise, I don’t see anything changing for us. …But the thing that I find really terrible is that they [the government] plan to give us empty lands with no more resources.” – Lavina White, former President of the Council of the Haida Nation.

Native articulations of their title is typically so categorical.

“We own this land, lock stock and barrel!” – Nisga’a. “We are the rightful owner of our country and everything pertaining thereto.” – Lillooet. “We stand for compensation to us by the British Columbia government for all lands of ours appropriated, or held by them, including all lands preempted or bought by settlers, miners, lumbermen, etc.” – Southern Interior Chiefs.

Beginning in 1973, the Supreme Court of Canada (SCC) has been building its definition of Aboriginal title, to supersede the existing, well-defined, and independently articulated land titles of native nations.

That was the first year that the “BC Indian Land Question” ever had its day in that court, fully one century past the original legal complaint. The Nisga’a sued for a Declaration that their native title had not been extinguished.

Forty years and hundreds of cases later, the SCC made a Declaration of Aboriginal title in the Tsilhqot’in decision, 2014. It’s the first and only one in Canada.¹

The accumulated characteristics of Canada’s Aboriginal title, according to the common law, include that:

• it is sui generis (unusual, not like normal proprietary title)
• it therefore cannot be registered as an interest in land (ie, registered with the Land Titles Office)
• it is “subject to certain carve-outs” (it can be infringed for reasons justifiably important to Canadians)
• the Aboriginal title holders can not sell their land or dispose of it in any way except by sale or cession to the Crown government (unless by the Crown’s explicit agreement)
• it is an Aboriginal right
• it must be proven in court to exist, and part of that proof is continuous, exclusive occupation; and use of the land which is integral to the distinct culture of the Aboriginal people claiming the right
• Aboriginal peoples cannot use their land for any purpose which contradicts that defining, culturally integral aspect
• the consultation and accommodation procedures for development of land subject to Aboriginal rights, as defined in Canadian courts, requires Aboriginal people to participate and be bound by the results

The Tsilhqot’in decision is the first and only example of judicial recognition of Aboriginal title in Canada. The Haida agreement is the first and only example of political recognition of Aboriginal title.

No one can fault the Haida for tempering their position, for seeking a real working solution to saving their future. Hopefully the Rising Tides is only an increment, in an unfolding event that resurrects Haida title.

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The West Wasn’t Won has a new journal!

Archive Quarterly celebrates its first edition this month.

A curated collection in every edition, these journals will each fill a sizable gap in authentic readings available to inform the restitution process between settler society and Indigenous societies today.

AQ’s very first Special Issue will focus on Title, coming June 21.

You can subscribe HERE

Or get the e-book for your mobile HERE

1. As of the time of writing, the Tsilhqot’in decision, 2014, was the only Supreme Court of Canada declaration of Aboriginal title. Since then, at the end of April 2024, a qualified victory by the Nuuchatlaht People was won in BC Supreme Court, where the BCSC made a finding for Aboriginal title to “small spots” within the Nuuchatlaht territory. British Columbia’s “small spots’ theory refers to site-specific places, like a fishing spot or hunting blind, and it is a theory that was specifically rejected by the Supreme Court of Canada in Tsilhqotin 2014. It is also entirely rejected by Indigenous Peoples. However, April 2024 in Nuuchatlaht represents the first time that a BC court has ever made a Declaration of Aboriginal title. In the 2007 BCSC decision in Tsilhqot’in, Justice Vickers gave an opinion on Aboriginal title, but not a Declaration. ↩︎