On the face of it, someone saying to you, “I acknowledge you own your own home” seems ridiculous. Intuitively, you know if you visit another’s home that it is their home and their rules. So… Why all the hubbub with the B.C. Crown finally affirming the Haida own Haida Gwaii?
Haida title to Haida Gwaii has always been pursuant to Haida law. The Haida word for law, kil 'yahda, means “saying it right, or with truth.” How perfect is that?
Haida law is dynamic and adaptive. Kil 'yahda has always interacted with other nations’ legal history. The glorious recent affirmation of Haida title is but a moment in legal history where, yet again, a nation respectfully affirms and uplifts kil 'yahda.
We all have neighbours. Whether you are Bolivia or Lithuania or Nisga’a, we have always had neighbours and existed in an ever-evolving body of international law. To ignore this fact is infantile, like a baby that perceives discovery as he sees the world moment by moment. But we are not infants, we are nations. And we know if we have neighbours, we respect them, or they do not respect us.
It is so simple.
So, how did such a simple recognition become such a big deal?
If you read conservative-minded lawyers, or believe certain party leaders or their media ghost writers, you might be convinced that our world is threatened by the uncertainty. There are no warnings in Haida Gwaii that “all residents of Sandspit should run to their panic rooms because the Haida are coming.” It is all a bit Orwellian.
Should we panic? No.
Is there fear mongering? Yes.
Is the fear mongering true? No.
Hasn’t Haida law always co-existed with other laws? Yes.
Can Haida title co-exist with fee simple (current land ownership)? Yes, and it always has.
In fact (and please find it yourself online), the Haida Agreement has very simple and readable language that specifically says that “the Haida Nation consents to and will honour fee simple interests, including those held by the Haida citizens.” And again: “The Haida Nation consents to fee simple interests on Haida Gwaii continuing under British Columbia jurisdiction.”
So, is this affirmation a big deal? Yes and no.
Yes, it is a big deal. In a legal history where concepts like “doctrine of discovery,” “terra nullus” (ain’t nobody living here so I can take it) and other racist lies that enabled theft of continents from rightful owners in frightful ways—it’s a big deal.
It is the first small step for colonial kind, and a giant leap for Canadian history. Haida affirmation of title is legal truth that should echo in our ears.
Intellectually, no, it is not a big deal. If you can chew gum and walk at the same time, then you understand that two things can occur at once. If you can be glad and sad, two feelings can happen at the same time. And, yes, in Canada, we have more than one law operating at any given time. It’s called “legal pluralism”—whether it is common law, civil law, provincial law, federal law, territorial law or Indigenous law, we already exist in a legally plural Canada.
Legal pluralism is reality. Where we are now on this mutual path is the slow and incremental acceptance of this reality. “We are plural, we are plural, we are plural” may need to become the mantra of our Peoples, our judiciary, our leaders and our citizens. There is strength in “we.” But, when we divide, we are weakened.
Why is this Haida Agreement so politicized? Fear.
The truth is that fear is often exploited to gain votes. If there is something to fear, there needs to be a protector. Fear sells newspapers. Fear gains votes. Fear has people running to their lawyer if there is legal uncertainty. It is sad, but in this election cycle, fear of First Nations-Crown reconciliation is weaponized. This fear is igniting racism. And reconciliation requires courage.
There is a wager being made that on entering the voting queue that fear can sway the common voter to put their mark on the ballot beside a Conservative name to stop this progress.
Can the Haida Agreement serve as reconciliation precedent? It depends.
It depends on the next B.C. government. It depends on First Nations governments reconciling among ourselves. It depends on if we all have the courage to see that fear is an impoverished approach to our children’s futures.
The BC Conservatives have promised to repeal the Declaration on the Rights of Indigenous Peoples Act, even though they unanimously supported it in the B.C. legislature. BC Conservative leader John Rustad has broadly criticized the BC NDP government’s approach in title affirmation, even though much of this long-negotiated work occurred during his decades in office as a BC Liberal and when he was the actual minister of Indigenous rights and reconciliation.
Many hope the NDP government will continue this progressive and measured work. The truth is the work of reconciliation remains at its infancy and there is so much more work to be done.
For First Nations, there is much work ahead to getting beyond the foreign concepts of overlapping traditional territory maps borne of the B.C. treaty process and a dated consultation process. The imaginary lines on maps are not true representations of the rich First Nations legal orders that address joint title and shared territories, and our own laws of redress when we do not respect our neighbours. We must reinvigorate international treaty making among ourselves. If we do so, the opportunities for more title affirmation can occur.
There is much work to be done for all of us, but we must find courage. We must find a shared path that inspires generations. We must govern our respective jurisdictions to create a long-term prosperity beyond an election cycle.
A courageous journey will create the proud history that “says it right and with truth.”
Merle Alexander is Heiltsuk-Tsimshian, and principal of the Indigenous law group at Miller Titerle + Co.
