Aoleus

The Haida Title Act is being debated in the Legislature this week. If passed, it will relinquish British Columbia’s ownership and jurisdiction to over 10,000 square kilometres of land and resources on Haida Gwaii. Haida laws and customs will govern the territory. It will call into question the validity of every tenure ever granted without Haida consent. And contrary to the Premier’s claims, the agreement does not protect private property rights either. It's a big deal. So we should probably talk about it outside of the Legislature too. The Conservative Party of BC is not alone in sounding the alarm. Tom Isaac, who has written 12 books on aboriginal law and been cited by the Supreme Court of Canada, is warning that the Haida Agreement has ambiguous and conflicting provisions which include a recognition of Haida title over fee simple lands. This could tie the province’s hands in the ongoing litigation (the agreement will *not* settle the Haida’s court claims) or if the Haida decide to assume control over private lands in the future. Over the next two years, the Haida’s leaders and laws will replace British Columbia’s. This will mean roughly *half* the population, who are not Haida members, will be governed by rulers who they do not elect. Nor is it clear to what extent the Charter rights of these British Columbians will be enforceable against the laws and other actions taken by their new government. Wave goodbye to democracy on Haida Gwaii. This is precisely what the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) foresees: that all lands previously owned, occupied or otherwise acquired be given to people with indigenous ancestry or compensation paid in lieu. And it is precisely what the NDP is busy implementing across the entire province, aligning BC laws with UNDRIP under the Declaration on the Rights of Indigenous Peoples Act (DRIPA), a law the Conservative Party of BC has committed to repealing if elected in October. Does the dream of UNDRIP look like moral progress to you? Not to me. Not anymore. As a lawyer, I dedicated the first dozen years of my career helping indigenous clients to achieve these goals. I had the best of intentions, believing as I’m sure the NDP do now, that since indigenous people had lost power in the past the only ethical thing to do was to give it back to them. But there’s a missing variable in this moral arithmetic. Indigenous inhabitants did lose ownership and control of these lands to Great Britain and successor governments. But they and their descendants got something in return. Keys to the modern world. The wheel, the lightbulb, the microchip. Modern medicine, which has tripled human lifespans from 25 to 75 years. And every right possessed by their fellow British Columbians. How could one ever quantify that? Will they be returned under the Haida Agreement? We cannot turn back the clock. Our history is complex, with leaps forward as well as setbacks. And I understand as well as anybody that there are legal realities we need to face. So let’s acknowledge the racist boxes that have historically defined us and ask: Will we dig them deeper? Or will we extract ourselves, gracefully and collaboratively, from those boxes and onto firmer ground? We must choose. I believe we can have reconciliation now. If we recognize our common humanity. If we refuse to calculate a “balance owing” from our distant past. And if we instead build on the legacy of our mutual trade, cooperation, and empowerment. Let us rise above our racial distinctions and walk as equals on the path to peace, prosperity, and good government.