How B.C.’s Haida Nation taught a lesson on sovereignty
In The Haida Gwaii Lesson: A Strategic Playbook for Indigenous Sovereignty, journalist Mark Dowie examines the Haida Gwaii’s decades-long battle for sovereignty. It’s the story of a how a small, remote Indigenous band on the northern B.C. coast organized, lobbied and blockaded over 50 years to gain control from governments and logging companies over their islands and their resources. “Blockades don’t work by themselves,” a former president of the Haida Nation remarked. “There needs to be a legal strategy. But a legal strategy won’t work by itself either. We had the courts, our alliances and blockades all working together while we developed and negotiated a land-use plan. Timing was always at the forefront of our minds, and our timing was good.”
If it’s the state that is granting permission to extractive corporations to mine or harvest resources from your land, then the state must be your target as well as the corporation. But where and when to challenge the state becomes the central strategic question. The where is likely in the state’s own courts, but that only works if their courts have enough power, enough authority, that political leaders and corporate executives will abide by the courts’ rulings. That is the case in Canada, but by no means everywhere in the world. The when is the all-important question that requires as much deliberation, skill and talent as preparing your case for court.
One aspect of their strategy that the Haida emphasize is carefully assessing the politics of the government you are dealing with, because where the majority of a legislature or a cabinet stands on economic and social issues will inform your strategy. Throughout the Haida’s long struggle with the province, British Columbia’s politics have swung wildly from right to left and back again. As the premier and legislature shifted suddenly from pro-business to pro-union, and from pro- to anti-environment, the Haida had to shift their strategy, sometimes waiting for the election of a more sympathetic majority, or even longer for courts with more respect for aboriginal rights and sovereignty.
For almost a decade, the Haida wanted TFL 39, the tree farm licence awarded to Western Forest Products, quashed. This was no small item as the licence covered one-quarter of the land base of Haida Gwaii, and logging in the area had exceeded sustainable rates for years. But the B.C. court told them they would have to prove title before they could summarily quash it themselves. So in March 2002, the Haida Nation filed a case with the Supreme Court of Canada asserting aboriginal rights and title to the land, inland waters, seabed and sea of Haida Gwaii.
They also demanded compensation for “profits, taxes, stumpage, and royalty fees paid to the province,” and the withdrawal of “all forestry, mineral and other permits and licenses” on the islands. The court was also asked to decide whether or not the province was required to consult with the Haida Nation before granting new TFLs or other extraction permits to off-island interests.
In court, aligned against the Haida with Weyerhaeuser and big timber were the governments of British Columbia, Alberta, Saskatchewan, Ontario, Quebec and Nova Scotia, alongside the Business Council of British Columbia, the Cattlemen’s Association and several mining companies. In a jointly signed brief, these “friends of the court” argued that economies would fail and livelihoods would be ruined if they were required to consult with the Haida before proceeding with their work on Haida Gwaii.
One of the wisest things the Haida have done is to send one of their own through law school, and, once accredited, to send her back to Ottawa to press the Supreme Court for title. “The cedar tree is our sister,” a tall and striking Terri-Lynn Williams told the seven justices before her, “providing for and sustaining our culture.” Co-counsel Louise Mandell would later comment on the tremendous advantage of having a Haida lawyer, rather than herself, argue this landmark case:
“I don’t think the court ever had the facts rendered the way she presented them . . . from a Haida perspective. I couldn’t do that. I’m not aboriginal. Terri was able to refer to her client, the Haida, her own people, in a personal sense, as in “I” and “we” and “our,” and render the facts from her perspective rather than the way the court is used to. It was a first-time beautiful moment for advocacy, to see an aboriginal attorney speaking about their own rights, their own territory, and their own people, attempting as counsel to persuade the court to see it from their perspective.”
As the Haida awaited a decision from Ottawa, the province of British Columbia stepped forward and offered to release 20 per cent of Haida Gwaii to the Haida, in the form of protected areas. In return, the Haida were to relinquish title to the rest of the archipelago. The president of the CHN (Council of the Haida Nation) dismissed the offer as “mischief . . . They are not offering us 20 per cent of their land,” he said. “They are asking us to give them 80 per cent of our land . . . Our people come from every part of these islands. There is no place we can give up.” The Haida ignored the provincial offer and initiated a “Community Planning Forum” with industry leaders, the province and island communities.
Discussions went on for18 months, two to three days per meeting. The purpose of the meetings was to address power imbalances on the islands and decide how power should work there in the future. Twentynine people participated, representing 15 different interests and sectors. Nine of the delegates were Haida. In over 40 full days of public meetings, topics ranged from protected areas, to old-growth retention, ecosystem integrity, spiritual and cultural values, economic well-being, cedar, tourism and community.
Also running concurrent to the Supreme Court’s deliberations was an event in Vancouver billed as the Turning Point Conference. Thirteen Pacific coastal First Nations, including the Haida, met and signed a declaration which read in part, “The connection of land and sea with the people has given rise to our ancient northwest cultures. The life force [of this region] is under threat like never before, and all people must be held accountable.” The Turning Point Declaration eventually led to the protection of the Great Bear Rainforest (GBR), the lush, temperate forest that borders the entire coast of British Columbia. It also gave rise to a new coalition called Coastal First Nations (CFN), which remains a powerful negotiating forum for the Haida and their neighbours on the Pacific coast. CFN regards itself as the ultimate guardians of the GBR.
In June 2003, the federal and provincial governments filed separate counterstatements to the 2002 Haida title case. Both argued that the Haida’s case was “baseless” and should be dismissed. Both said that the Council of the Haida Nation had no valid claim to the islands. The provincial government even denied the existence of a Haida Nation, and despite convincing archeological evidence to the contrary, said that prior to 1846 the islands were never occupied or possessed communally and exclusively by a single unified aboriginal group.
The province did admit that people who all spoke the Haida language lived on the islands at the time of European contact, but they “lived in small autonomous family groups which were widely dispersed and not politically unified or organized.” As if it were some mere coincidence of nature that they spoke the same language. The federal government did recognize the Haida Nation’s existence, but denied it had claim to the islands.
Title, both governments argued, could only be claimed by an individual village “or resource-gathering site held by an autonomous kin group . . . rather than the Haida Nation as a whole.” And title, they said, could “never (be) extended to the whole of the Claim Area.” Allowing title to individual native settlements — “small spots” — while denying it to hunting grounds, fisheries, and intervillage space, has been a common practice of imperial governments throughout the world. The Haida contested the idea, on Haida Gwaii and everywhere else, and they are committed to the principle that the land and water between settlements is as vital to island and forest peoples’ livelihoods as their homes and villages, and thereby deserve to be included under aboriginal title.
Both governments, in Ottawa and Victoria, also argued that “because the original inhabitants of (so many of ) these villages abandoned them long ago, their descendants lost any claim to these lands.” Virtually none of the vacant villages on Haida Gwaii were “abandoned”; their entire populations were wiped out suddenly by smallpox. There are mass graves of rapidly buried victims to prove that at most of the village sites, which were never resettled for fear that the virus was still there.
Both federal and provincial governments claimed a legal right to control all resources on the islands, and argued that the Haida people have suffered no hardships as a consequence of their extrac- tion, or of related government actions. “Further, the Plaintiffs have, instead of bringing suit in a timely fashion, slept on their alleged rights” — i.e., they were late.
The province argued that any financial claims “must be against the federal government, because all aboriginal peoples are wards of the Crown, and any responsibility of the Crown to provide for the welfare and protection of native peoples is, as a matter of constitutional law, fundamentally an obligation of the Crown.” (The provincial government of British Columbia has no problem describing itself as “the Crown” when it has need to flex its power.) The federal government disagreed, saying that the province was liable because it received all financial benefits (stumpage) from the extraction of resources on the islands.
For two long years, the Haida assumed that both governments were deaf to their oral traditions and blind to their archeological ruins, thanks to the country’s and province’s disregard of overwhelming evidence that the Haida people had hunted, fished and cultivated the land, water and resources of Haida Gwaii for thousands of years. Canada and its westernmost province were, in effect, refusing to recognize the very existence of a unique and productive civilization, and to acknowledge the resilience, knowledge, capabilities and expertise that qualified the Haida to manage their own land and govern their own nation.
Then, on Nov. 18, 2004, when the Haida truly believed that Ottawa had abandoned them, the Supreme Court of Canada handed down a surprising judgment in Haida Nation v. British Columbia, ruling unanimously (7-0) that the province must consult with the Haida before issuing tree farm licences (or, for that matter, any extractive licences). “Put simply, Canada’s aboriginal peoples were here when Europeans came, and were never conquered,” wrote Chief Justice Beverley McLachlin. “Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants’ inherent rights … Where the government has knowledge of an asserted Aboriginal right or title, it must consult the Aboriginal peoples on how the exploitation of the land should proceed.”
And McLachlin admonished the province for presenting “an impoverished vision of the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof … When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded. This is not reconciliation. Nor is it honourable.”
Terri-Lynn Williams couldn’t have worded that opinion better herself. One First Nation chief commended her work and described the outcome as “a tremendous victory felt throughout the indigenous world.”