This article was originally published on The Conversation, an independent and nonprofit source of news, analysis and commentary from academic experts. Disclosure information is available on the original site.
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Authors: Ted Palys, Professor of Criminology, Associate Member of Dept. of Indigenous Studies, Simon Fraser University; and Michaela M. McGuire, PhD Candidate, School of Criminology, Simon Fraser University
The Haida Nation and government of British Columbia recently signed the Gaayhllxid/Gíihlagalgang “Rising Tide” Haida Title Lands Agreement, which recognizes and affirms the Haida Nation’s title to the archipelago of Haida Gwaii.
Indigenous scholars have described the agreement as “historic” and “an inspiration to Indigenous Peoples across Canada and around the world.” It’s approach to title departs from the racist assumptions underlying colonization.
However, while this agreement between the Haida Nation and B.C. is laudable, we cannot help but wonder: why has Canada been so slow to get on board?
Undermining Indigenous nationhood
Early European explorers and settlers in what is now known as Canada benefited from their symbiotic relationship with Indigenous Peoples who helped them survive Canada’s harsh climate; offered military alliances that resulted in a British North America; kept the upstart Americans at the 49th parallel; and possessed the hunting prowess that brought riches to both sides in the fur trade.
The seminal role that Indigenous Peoples played in those early years was all but forgotten by the time Canada became a nation in 1867. The new legal order dismissed Indigenous nationhood and created one in which “Aboriginal title” became subservient to Canadian sovereignty, existing only at Canada’s pleasure.
Evolving international law affirmed that any square inch of territory could have only one sovereign authority.
Only European powers — styling themselves as the civilized world — were entitled to that authority, and European colonizers determined who was allowed to be sovereign, and who was not.
Legal scholars proclaimed Indigenous rights of title as subservient to European rights. Any rights Indigenous Peoples enjoyed were considered “delegated” rights “given” to them and could thus just as easily be taken away.
The die was cast in the early 1800s in three United States Supreme Court decisions: the Marshall Decisions. The cases required the court to articulate the relationship between the new United States and Indigenous Peoples. The court’s decisions made clear that the U.S. was the only “sovereign” authority with rights of “dominion” (i.e., governance), while Indigenous Peoples were recognized only as “occupants.”
These decisions would supply the justification that colonizing powers would use to assert that Indigenous Peoples had a right of occupancy, while European powers and their colonial descendants had the right of sovereignty.
In Canada, the first Supreme Court case to speak to the issue of Indigenous title was St. Catharines Milling and Lumber Company v. Ontario in 1887. The court cited the Marshall decisions favourably as relevant precedent, including its decision that Indigenous rights of title were no more than rights of occupancy, with overall sovereignty retained by the Crown.
Indigenous Peoples were rendered “domestic, dependent nations” whose rights would be defined by the colonial state under whose sovereignty they lived. Classifying them broadly as Indigenous Peoples — or “Indians” at that time — further undermined any understanding of their distinct National identities, defining them instead as the “other” who needed to be managed for their own good.
Haida title
The Haida-B.C. agreement represents an important departure from that view. Most importantly, it distinguishes between “Aboriginal title” and “Haida title,” the latter of which is defined as:
The collective inherent right and responsibility of the Haida Nation to maintain, caretake, protect, restore and renew Haida Gwaii and the realms of interconnected existence that are reflected in Haida culture, the hereditary clan system, and the Constitution of the Haida Nation. Haida Title includes ownership of and a right of jurisdiction over Haida Gwaii, and encompasses Aboriginal title protected under Section 35(1) of the Constitution Act, 1982.
This recognition of Haida title is the culmination of decades of work and years of negotiation. Recorded assertions of Haida rights, title and determination to protect Haida Gwaii date back to the early 1900s. The agreement further acknowledges that Haida title extends over Haida Gwaii, and that B.C. is not “giving” the Haida Nation anything that was not already theirs; Haida title is inherent.
B.C. law and Haida law and ways of being will co-exist, and the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) will apply, thereby recognizing the Haida right to self-determination that is the right of all peoples.
As a step in the right direction, the Gaayhllxid/Gíihlagalgang “Rising Tide” Haida Title Lands Agreement, and the definition of Haida title noted above, supports and upholds Haida Nation governance, Haida law and ways of being and the Constitution of the Haida Nation.
But there is still much to do. The agreement kicks off a two-year period where the Haida Nation and B.C. government will negotiate jurisdictional sharing. The agreement states that any disputes that arise in that regard will be resolved based on Haida law and ways of being, dispute resolution and practices.
This is a positive step towards the B.C. government making things right with the Haida, and the Haida for the tremendous patience and sense of purpose that has guided them all these years.
Where is Canada?
The agreement and its approach to title depart from the racist assumptions that underlay colonization. Despite Canada’s repeated calls for reconciliation, Indigenous Peoples must continue to take Canada to court over territorial claims, with Indigenous Peoples having to prove their title while Crown title is assumed.
This agreement between the Haida Nation and B.C. is laudable. However, considering Canada’s history of false promises, delaying responsibilities and differing issues to be addressed in the future, we cannot help but be concerned about the Canadian state’s slow approach to negotiations.
There was Canada’s nine-year delay (from 2007-16) in endorsing UNDRIP. In addition, Canada has failed to meet its own promises in the Truth and Reconciliation Commission’s Final Report; as of 2023, 81 out of 94 Calls to Action are incomplete. The same is true for the majority of the National Inquiry into Missing and Murdered Indigenous Women and Girls calls for justice.
This tendency to take the path of least effort and preference for rhetoric over fundamental change is a point of concern. Will Canada finally live up to its promises and support the inherent rights and title of the Haida Nation? Only time will tell.
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Ted Palys has previously received funding from the Law Foundation of BC, SSHRC and SFU's Community Engagement Fund for research into various Indigenous justice issues.
Michaela M. McGuire receives funding from SSHRC Vanier.
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This article is republished from The Conversation under a Creative Commons license. Disclosure information is available on the original site. Read the original article: https://theconversation.com/the-haida-b-c-agreement-was-a-landmark-deal-but-where-was-canada-233539
Ted Palys, Professor of Criminology, Associate Member of Dept. of Indigenous Studies, Simon Fraser University; and Michaela M. McGuire, PhD Candidate, School of Criminology, Simon Fraser University, The Conversation
