Introduction
Canadian legal precedent dictates that First Nations with a prima facie claim to Aboriginal title are owed a duty of consultation and accommodation by the government. Moreover, the fulfillment of Aboriginal rights generally is motivated, in the view of the courts, by the desire for reconciliation between Indigenous groups and the colonial government. Co-management of lands and resources is a strategy that can fulfill these obligations. However, co-management can only truly work when substantial power imbalances between the colonial government and Indigenous groups have been addressed. Indigenous viewpoints must be considered equally valid to dominant Western frameworks and ways of knowing. Where these power imbalances can be corrected, co-management—true collaborative governance—can be a step toward reconciliation that both fulfills the government’s duty toward First Nations and is respectful toward First Nations’ self-determination.
Haida Gwaii is one such place where true collaborative governance has been achieved. The Haida Nation employed a number of legal, political, and social strategies that forced both the provincial and federal governments to treat them as equal partners at the bargaining table. Analysis of their story makes an instructive case study for those who are interested in achieving Indigenous self-determination and working in true partnership with colonial governments to achieve Indigenous goals of conservation and cultural protection.
In Part I of this paper, I will attempt to outline the broad story of Haida Gwaii from pre-colonial times to the present, drawing special attention to many of the non-legal strategies the Haida people employed to gain control over precious cultural resources post-colonization. In Part II, I will outline the evolution of Canadian legal jurisprudence regarding Aboriginal title and the rights that stem from it, including the rights of consultation and accommodation. Then, in Part III, I will describe the implications of power parity for co-management or collaborative governance regimes, especially those which seek to include Indigenous groups. I will then, in Part IV, analyze co-management or collaborative governance regimes in Haida Gwaii to examine the ways in which the Haida Nation and has used legal and non-legal means to try to achieve power parity with the Canadian government in various iterations of collaborative resource management.
The Haida Gwaii Story
Haida Gwaii is the name of a series of islands off the coast of British Columbia, Canada, and is the traditional homeland of the Haida First Nation. It is home to an incredibly special and unique ecosystem.
The last of twenty or so Pleistocene glaciations began its retreat from the archipelago [Haida Gwaii] around 16,000 BCE, about two thousand years earlier from the rest of the North American glacial masses. . . . Because of the way the place was covered with ice, Haida Gwaii is regarded by nature historians as a ‘partial refugium,’ a refuge for plant and animal species that pre-existed and survived the Ice Age.[1]
The ice receded at about the same time that humans first appeared on the islands.[2] Haida oral history on the islands goes back over 10,000 years to a time before the Ice Age,[3] and scientists have found rock formations they believe to be old fishing weirs that date back to around 13,800 years—the oldest evidence of human habitation in Canada.[4] The current ecosystem has thus been growing and evolving alongside the Haida and their ancestors since the Ice Age.
At the height of Haida Gwaii’s population in the late nineteenth century, the islands comfortably supported around fifteen thousand inhabitants.[5] Due to the introduction of smallpox, that fifteen thousand was reduced to less than six hundred by end of the century.[6] With such greatly reduced numbers and so much suffering, it was suddenly all too easy for the British colonial government to claim sovereignty over the islands without Haida consent in 1853, renaming Haida Gwaii the “Colony of Queen Charlotte Islands.”[7] After British Columbia officially became part of Canada in 1871 the affront to Haida sovereignty continued, as the colonial government forced the remaining population into small “postage stamp” sized “Indian Reserves” that consisted of only two of the 126 villages on their traditional lands, and set up a residential school system on the islands designed to “kill the Indian in the child” and “sever First Nations peoples’ ties to the land.”[8]
The decimation of the population and the physical relocation of the Haida community meant that the natural resources on the islands were suddenly accessible to industry.[9] So began an era where resources were ruthlessly extracted from the islands. Of particular interest to Canada were the vast timber resources on the islands, which were subject to clearcutting for much of the first half of the Twentieth Century and formed the backbone of the provincial economy after World War II.[10]
The importance of the forests on Haida Gwaii to the Haida people cannot be underestimated. Beyond the trees’ importance to a variety of cultural and subsistence practices, their importance to the island’s ecosystem, and the cultural sites located within the forests themselves, one has to consider that the forests have been tended to and protected by the Haida people for literally thousands of years. As Mark Dowie writes,
It’s hard to wander about Haida Gwaii today, fighting your way through one of the densest rainforests in the world, an ecosystem that by weight supports more biomass than any other on the planet, and imagine it without a single tree anywhere in sight. But it was that way even as it was first settled by humans, who evolved so closely for four or five thousand years with primeval conifers like the monumental Sitka spruce and the red cedar that the trees are almost regarded as blood relatives by the Haida today.[11]
Oral history of the Haida Nation recalls the coming of the first tree on the islands;[12] the forests of Haida Gwaii have never been without their human caretakers. And the forests reciprocated by taking care of the people: The Haida Nation has used the trees for sustenance, shelter, transportation and cultural practices for most of its history.[13] It is therefore no surprise that the trees played such a large role in the political and cultural revival of the Haida people.
The Haida people never stopped pushing for their sovereignty, but it was a dispute in 1974 over the logging of an area “known to be an important cultural and archaeological site by the Haida and a source of immense ecological diversity”[14] that spurred them to create a governing body they called the “Council of the Haida Nation.”[15] They found allies in a growing environmental movement that had taken an interest in the unchecked logging of British Columbia’s forests.[16] In 1980, the Council drafted a constitution: “[I]ts most essential order was that the council strive for ‘full independence, sovereignty and self-sufficiency.’”[17] In 1981 the Haida Gwaii Watchmen program was created to “guard and protect the natural and cultural heritage” of particular sites around Haida Gwaii.[18]
The newly created council took several steps to restore sovereignty and check logging on the islands, including submitting a land claim demanding aboriginal title to the Canadian government, calling for a fifty percent reduction of logging on the islands, and physically “moving into abandoned village sites on the southern part of the archipelago to protect the surrounding forests.”[19] When none of these strategies succeeded in stopping the logging, “it was time to draw a line in the sand.”[20] When a site of particular cultural significance (Athlii Gwaii, or Lyell Island) to the Haida people was threatened to be logged in 1985, the Haida set up a blockade. Seventy-two Haida were arrested for blocking the road, including a number of tribal elders. As “images of old people in button blankets and regalia, being taken off a logging road by RCMP [Royal Canadian Mounted Police] officers for protecting their land” hit the news, awareness of and support for the plight of the Haida people increased across Canada.[21]
As a result of the blockades and the Haida’s successful media campaign, the federal government began negotiations with the Haida. This resulted in the 1993 Gwaii Haanas Agreement, “a nation-to-nation agreement that established a co-operative management body called the Archipelago Management Board (AMB) and outlines both nations’ commitment to preserve Gwaii Haanas for future generations, maintain the continuity of Haida culture, [and] establish a marine protected area in the future . . . .”[22] In the agreement, the parties essentially “agree to disagree” on the issue of Aboriginal title to the islands, emphasizing the importance of collaboration and reconciliation regardless of the parties’ inability to agree on who holds absolute sovereignty over the lands.[23] The Gwaii Haanas National Park reserve, a space totaling 147,000 acres, is the first of its kind to be co-managed by a First Nation and the federal government.[24]
In order to protect other areas of the islands subject to excessive logging, the Haida and their allies in the environmental movement made a strong case to the provincial government as to why they should consult with First Nations generally. During the nineties, environmentalists began an intense global market campaign in protest of British Columbia’s clearcutting and excessive logging practices, which encouraged a boycott of companies purchasing wood from the thirty-five million acres of temperate rainforests along British Columbia’s central and northern coast. [25] Many large investors cancelled orders as a result of this campaign, causing logging companies “to defer logging in 140 valleys in order to negotiate a resolution with environmentalists.”[26] In 2003, eight First Nations communities came together to form the Turning Point Initiative, which opposed excessive logging and promoted “respect for Aboriginal rights and title, increased local control, and implementation of sustainable ecosystem-based management.”[27] The resulting pressure on the provincial government’s economy and political support caused the government to sit down with industry, labor, local government, First Nations and environmental groups to find a workable solution.[28] Using this agreement as leverage, the Haida were able to get the Province of British Columbia to commit to establishing a collaborative, ecosystem-based land use planning process alongside the Haida Nation, which was codified in the Haida Protocol on Interim Measures and Land Use Planning.[29]
In 2007, the Haida were able to negotiate an even stronger co-management agreement with the province, which subjects fifty percent of the islands to ecosystem-based management by the Haida Nation.[30] In 2010, the Haida reached an agreement with the federal government to protect the marine area off of the Gwaii Haanas (the co-managed federal National Park Reserve). The government designated the area as a National Marine Conservation Area Reserve. The Archipelago Management Board, the entity in charge of co-managing Gwaii Haanas, was expanded to include another Haida representative and a representative from the Department of Fisheries and Oceans Canada [DFO] in order to manage the marine area.[31]
That same year, the Haida invited the then-Premier of British Columbia, Gordon Campbell, to a totem-raising ceremony on the islands.[32] At the ceremony, the name Queen Charlotte Islands was given back to the province in a traditional bentwood box.[33] The Premier was told, respectfully, that the islands were once again to be known as Haida Gwaii.[34]
“What we are really doing here is unwinding colonialism,” President Guujaaw [President of the Haida Nation] added. Premier Campbell, according to onlookers, was visibly shaken. Guujaaw continued: “After a hundred years of conflict, we are setting the ground for a more productive era of peace. The interesting part is yet to come. How do we make this work? I think we can do it. And the world needs these little places to start turning the tide. I think we have a good chance to set an example.”[35]
Consultation, Accommodation, and Aboriginal Title
Part of the Haida’s success stems from the fact that they have a strong prima facie case for Aboriginal title. “Aboriginal title is a legal property interest in the land that arises because of prior occupation of the land before the assertion of Canadian sovereignty and includes a right to determine the use of the land.”[36] Historically, Aboriginal title was viewed as having been granted by the Crown in Britain’s 1763 Royal Proclamation. As codified in St Catherine’s Milling and Lumber Co. v. The Queen in 1887, Aboriginal title was conceived only as the right to use and occupy land; it existed only at the pleasure of, and could be extinguished at any time by, the Crown.[37] This view persisted and informed government policy toward First Nations peoples until the latter part of the twentieth century. The government did not recognize Aboriginal title, and so signed no new treaties with First Nations.[38] In 1969, then-Prime Minister Pierre Elliot Trudeau “categorically rejected the notion that Aboriginal peoples had rights other than those accorded to other Canadian citizens.”[39] A government policy paper released the same year (the infamous “White Paper” of 1969)[40] asserted that “aboriginal claims to land … are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to the Indians as members of the Canadian community.”[41] Canadian policy was thus to reject the notion of Aboriginal title in pursuit of its colonial assimilationist goals.
This policy shifted dramatically in 1973, when the Supreme Court of Canada decided Calder et al. v. Attorney-General of British Columbia.[42] The Nisga’a people sued the Province of British Columbia for a declaration that their title to their traditional lands had never been lawfully extinguished.[43] While this declaration was not granted, six of the seven justices on the Court agreed that the Nisga’a people held Aboriginal title to their land prior to colonization[44]—negating the supposition in St Catherine’s that this title was granted by the colonial powers. They did not agree on what had happened to this Aboriginal title since then: Three justices ruled that while Aboriginal title existed prior to and at the time of Britain’s 1763 Royal Proclamation, it had since been extinguished by virtue of confederation and colonial control over the land; three justices affirmed the tribe’s Aboriginal title; and the seventh justice dismissed the case on a technicality.[45] Seven months later, this new acknowledgment of Aboriginal title spurred the federal government to create a comprehensive claims process for handling grievances related to Aboriginal claims to land for First Nations that did not have existing treaties settling land claims.[46] R v. Guerin, decided by the Supreme Court of Canada in 1984, established that the federal government has a fiduciary duty to First Nations.[47]
Then, in 1997, the Supreme Court of Canada decided Delgamuukw v. British Columbia.[48] The claim was brought by the Gitksan and Wet’suwet’en First Nations for Aboriginal title to 58,000 square kilometers of their traditional land.[49] All that was held in this decision was that a new trial should be called.[50] The rest of the opinion is technically dicta. However, the dicta marks the first recognition of Aboriginal title by Canadian courts, and has gone on to be affirmed by other cases.
In the dicta, the majority first states:
[A]boriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group's attachment to that land.[51]
The majority also states that “Aboriginal title at common law is protected in its full form by s. 35(1) [Section 35 of the Canadian 1982 Constitution Act],”[52] which recognizes and affirms “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada.”[53]
The Delgamuukw majority also laid out the test for proving Aboriginal title, stating that “(i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.”[54] The majority placed Aboriginal rights protected by section 35 along a spectrum, with Aboriginal title being the pinnacle for said rights. This is because Aboriginal title confers not just the right to use the land for certain traditional, cultural practices (site-specific rights); it “confers the right to the land itself.”[55]
However, the majority indicated that Aboriginal title may be infringed by the government in certain cases. “First, the infringement of the aboriginal right must be in furtherance of a legislative objective that is compelling and substantial.”[56] The majority then provided examples of government objectives that may meet this test, on a fact-specific basis, such as the development of agriculture or forestry.[57] However, even when the government has a compelling and substantial legislative objective, the infringement must still be “consistent with the special fiduciary relationship between the Crown and aboriginal peoples.”[58] This fiduciary relationship gives rise to two additional components when Aboriginal title is infringed: The duty to consult with the Aboriginal title holders about activities on title land, the nature and scope of which varies with the burden the activity will impose of the title holders;[59] and the requirement to provide fair compensation to the Aboriginal title holders for government infringement on that title.[60]
In 2014, the Supreme Court actually granted Aboriginal title for the first time in Tsilhqot’in Nation v. British Columbia.[61] The court held that the Tsilhqot’in peoples’ title to the claimed portion of their traditional homeland should be recognized, and held that the province of British Columbia breached its duty to consult with the Tsilhqot’in people.[62] In doing so, it upheld the test articulated in Delgamuukw with the caveat that when analyzing sufficiency, continuity and exclusivity, especially for traditionally semi-nomadic peoples, “the court must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.”[63]
The court held that Aboriginal title confers the right to decide how the land will be used, to enjoy and occupy the land, to possess, pro-actively use and manage the land, and to the economic benefits of the land.[64] Those seeking to use land burdened by Aboriginal title must either obtain the consent of the Aboriginal title holders, or establish that “the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.”[65] Justification requires the government to show “(1) that it discharged its procedural duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group.”[66]
III. Collaboration, Co-Management, and Power-Sharing
Whereas the policy of the Canadian government was once geared toward assimilation and the denial of differentiated Aboriginal rights, the law now defines reconciliation as “‘one of the fundamental purposes’ of protecting Aboriginal rights.”[67] The aim of recognizing Aboriginal title, and Aboriginal rights to consultation and accommodation, is to achieve reconciliation. Reconciliation is “marked by a commitment to closure on a violent history and a new beginning based on trust and healing”; “those people who have been denied a voice in history may define the ‘truth’ in history ‘while seeking to fashion a solution that is both workable and just in our own time.’”[68] At best, co-management regimes provide an opportunity to create space for Indigenous voices and return control over important resources and cultural sites to Indigenous peoples as a way of moving toward reconciliation.
Without care, however, collaborative processes can perpetuate colonial violence against Indigenous peoples by devaluing Indigenous knowledge systems and ultimately keeping decision-making power out of Indigenous hands. In practice, co-management regimes often fail to adequately address power imbalances between First Nations and colonial governments, and fail to make space for any real kind of Indigenous self-determination or reconciliation.[69] Instead, these agreements “tend to confuse collaborative management (without any very much devolution of the central government planning and regulatory role) or mere forms of public participation with co-management.”[70] In the very process that is meant to achieve reconciliation, the government ends up reasserting its dominance over Indigenous peoples.
“Many see Aboriginal rights as justifying shared decision-making, not merely consultation, yet the Crown sees ‘no ultimate duty to reach agreement’ and rejects the idea that First Nations have ‘veto over what can be done with land.’”[71] However, co-management is much less likely to be successful, and much less likely to result in significant gains for Indigenous people, where consultation or collaboration occurs without any real attempt to place parties on equal footing.[72] True collaborative governance requires an organizational structure which mitigates the undue influence of a powerful party on the collaborative decision-making process, and equalizes each party’s access to and control over knowledge and information. Collaborative governance thus requires power parity, which “is reached when each group is unable to impose its proposed solution on another, leading to mutual dependence and the potential for stalemates, which can motivate problem-solving efforts.”[73]
This issue is especially salient for collaborative governance involving Indigenous groups, who have to contend with a long history of colonialism and violence that places Indigenous peoples and Indigenous ways of knowing on unequal footing. [74] “Collaborations involving Indigenous communities must respect traditional knowledge and affirm Indigenous communities’ decision-making powers, necessitating a greater degree of power-sharing, participation, and intercultural purpose than those involving only non-Indigenous stakeholders and communities.”[75] Therefore, something more than the concept of consultation without a duty to reach agreement is needed to create effective co-management regimes.
Power parity has significant implications for the way that Indigenous knowledge is respected and utilized in resource management strategies. Where First Nations do not have adequate control over final decisions regarding resource management, empirical knowledge derived from traditional ecological knowledge (TEK) may be stripped from its context and misinterpreted.[76] Non-natives may devalue aspects of TEK that may seem foreign to our understanding of ‘scientific’ facts, such as the way that TEK may be intimately interconnected with religious or spiritual beliefs.[77] Policy documents that “refer to the cultural rights of First Nations or rights to protect sacred spaces for the purpose of ritual” may still “not allow for the full accommodation of alternative land ethics.”[78] Marc Stevenson argues that where governments set the terms on which co-management is to take place, First Nations are placed in a position where they must adopt the language of the colonizer in order to affect change; co-management becomes a colonial process of assimilation.[79] A methodology for collaboration that only recognizes that which can be readily integrated into pre-existing Western frameworks for environmental management is fundamentally incomplete. In order to effect a true reconciliation between Indigenous peoples and colonial governments power-sharing in co-management strategies is necessary.
- Consultation and Co-Management in Haida Gwaii
The Haida Nation’s various co-management agreements have been able to “[progress] much further than most planning efforts in terms of levelling power imbalances.”[80] The Haida therefore provide an example for ways that co-management regimes that aim to advance reconciliation with Indigenous groups may be structured, and analysis of the various iterations of co-management and the way the Haida Nation succeeded in producing that level playing field is instructive. The Haida Nation has seen three iterations of co-management with the federal and provincial governments in the past thirty years, starting with the 1993 Gwaii Hanaas Agreement, followed by the 2001 Haida Protocol on Interim Measures and Land Use Planning and its 2010 successor, the Haida Gwaii, or Kunst'aa guu – Kunst'aayah, Reconcilation Protocol.
In the 2001 agreement, British Columbia and the Haida Nation committed to establishing a collaborative, ecosystem-based land use planning process. The Council of the Haida Nation, the Haida’s governing body, were to co-manage and co-chair the process, and had significant influence over the design of the process itself.[81] “A consensus-seeking, inclusive community planning forum was jointly established by the two governments and charged with making recommendations for land use.”[82] The forum was made up of people representing different interests and sectors, including the Haida Nation, Haida cultural values, cultural heritage tourism, terrestrial and aquatic ecosystems, industry representatives, local governments, local labor concerns, and the government, among others.[83] Outstanding matters after the forum were to be “dealt with through a government-to-government negotiation process between the Province and the Council of the Haida Nation.”[84] Final recommendations were to be guided by the Ecosystem-based Management Framework[85] and the Haida Land Use Vision.[86]
However, “despite the ‘soft’ institutional infrastructure of social collaboration and democratic deliberations, the hard infrastructure of property, legal frameworks, and policies derived from dominant structural understandings reigned supreme.”[87] As the collaborative process began, some issues, such as pre-existing forest tenure arrangements and provincial contracts and regulations, were quickly established to be off limits.[88] Industry representatives were not willing to compromise or change the status quo;[89] provincial law dictates that foresters can only be compensated for reductions in the annual allowable cut if they opposed such reductions rather than voluntarily accepting them, which clearly disincentives industry representatives from being open to change.[90] Industry representatives trivialized the concerns raised by Haida and non-Haida community members, citing unwillingness “to discuss certain technical issues with ‘non-experts’” and insisting “that community members did not understand the immense socio-economic impacts of their recommendations.”[91] In the end the province paid deference to the forest industry’s portrayal of risk to ecosystems in favor of the status quo, inserting industry’s preferred plan wholesale into the final recommendations document without discussion or consensus.[92]
In this iteration of co-management between the province and the Haida, many of the concerns outlined above about inadequate power-sharing were realized. Though the Haida were able to design a theoretically inclusive collaborative process, without final decision-making power or a consensus requirement, First Nations’ traditional knowledge and community input were not placed on equal footing with existing legislative and legal frameworks designed to preserve the status quo. This was in direct conflict with the Haida view of the co-jurisdictional approach, which “would involve the establishment of nation-to-nation protocols and institutions based on the recognition of Aboriginal title, rather than its extinguishments.”[93] Co-management would mean the Haida Nation and the province coming together as two governments, on equal footing, and “sharing policy-making powers.”[94]
Anticipating that the province would undermine the co-management process, the Haida Nation had already brought a legal action against the rovince that was moving through the courts. In Haida Nation v. British Columbia (Minister of Forests), the Canadian Supreme Court held that the Crown’s duty to consult and accommodate the asserted Aboriginal interest “is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.”[95] In other words, even where title has not been proven, the government has much the same duties to a First Nation with a strong prima facie case of aboriginal title as it does to a First Nation where title has been proven. The Court held in the same case that the Haida have a strong prima facie case for Aboriginal title, and therefore the government owes the Haida a duty to consult and accommodate.
Perhaps of equal importance, two days before the hearing, the mayors of the two largest non-Haida communities on Haida Gwaii signed an agreement with the Council of the Haida Nation which recognized Haida title to the islands while guaranteeing individual property rights for non-Haida residents and committed to shared island governance.[96] Non-Haida islanders had more faith in the Haida than the province to sustainably manage the forests. The Haida also embarked on a full-scale media campaign against the province.[97] Logging blockades rose once more and the Haida seized timber belonging to the logging company Weyerhaeuser “estimated to be worth $5-10 million Canadian.”[98]
With the premier of British Columbia up for re-election, a Supreme Court decision against the province, and the sympathy toward the plight of First Nations and environmentalists and concomitant rising public backlash against the province, the office of the Premier soon began negotiations with the Haida. The negotiations resulted in “interim protection for all fourteen Haida Protected Areas, cultural and archaeological cedar stands and bird nesting habitat as identified in the Haida Land Use Vision. In addition, the Haida were offered a volume-based forest tenure of 120,000 [cubic meters] per year, and $5 million as preliminary compensation for resources extracted from the islands.”[99] The Haida Gwaii Strategic Land Use Agreement was signed in 2007, under which “the total area of protected areas and ecosystem-based management reserves on Haida Gwaii encompassed an unprecedented 52% of the Islands, while the annual allowable harvest was reduced to 800,000 cubic metres or roughly half of the allowable cut level prior to the blockade.”[100]
The 1993 Gwaii Haanas agreement is considered a successful exercise in co-management with the federal government to this day. The agreement that created the park reserve also created the Archipelago Management Board (AMB). The AMB “reviews all aspects of the park, including management plans, operational policies, … human resources…[and] plays a significant role in the allocation of park funding.”[101] The AMB is composed of two representatives from the Council of the Haida Nation and two representatives from Parks Canada; its decisions require a consensus.[102] This means that the CHN, the Haida Nation’s governing body, has an equal say in every aspect of the park’s operation and management.
The Haida Nation has achieved significant protection for cultural sites and cultural activities performed within the park through the AMB.[103] Moreover, the Haida Gwaii Watchmen, the Haida-initiated program at Gwaii Haanas National Park Reserve (NPR), which “protect[s] and preserve[s] sensitive sites within Gwaii Haanas NPR while providing safety information and educating visitors about the natural and cultural heritage of the area,” has been acclaimed as “a prime example of the inclusion of TEK into the daily park operations.”[104] The AMB launched a training program for the park in the early 2000s to ensure that local people were properly trained; local Haida now form more than half the staff working for the park.[105] Parks Canada, the Council and the Province have recently built a $20 million Haida Heritage Center in the park which provides “facilities for interpretation, training, a museum, artists, food, gifts, and cultural performances.”[106] Researchers have found that the Haida people generally perceive the co-management of the park to be adequate and transparent, and that “generally, people were pleased with the amount of information available and opportunities for participation.”[107]
Moreover, the act of co-managing the park has been used to support further claims by the Haida to exert control over the islands. In 2010, a protected marine area off the coast of the park was designated, and the Haida and the Department of Fisheries and Oceans Canada (DFO) negotiated a similar co-management agreement. In 2015, the Haida were granted an injunction challenging the DFO’s decision to open fisheries on Haida Gwaii despite predicted low herring stocks.[108] The AMB had failed to reach a consensus on a recommendation for whether the fisheries would be opened that year.[109] Parks Canada, after two decades of terrestrial co-management on Haida Gwaii, did not support the DFO’s decision and felt that “the relationship will fail and the intent of the GHA [1993 Gwaii Haanas Agreement] will be undermined if one party exercises their authority unilaterally.”[110] In granting the injunction,
the judge placed weight on the long-term co-management relationship between Canada and the Haida Nation in Gwaii Haanas, concluding that ‘there is a heightened duty for DFO and the Minister to accommodate the Haida Nation in negotiating and determining the roe herring fishery in Haida Gwaii, given the existing Gwaii Haanas Agreement, the unique Haida Gwaii marine conservation area, the ecological concerns, and the duty to foster reconciliation with and protection of the constitutional rights of the Haida Nation.’[111]
Conclusion
Communities attempting to influence policies affecting them must seek the power to do so using a variety of strategies. “It is useful to conceptualize co-management as a process and sharing of power as an outcome that can occur at any stage of the co-management process.”[112] Through a combination of legal challenges, political negotiations, and public protest, the Haida nation were able to give their legal rights to consultation and accommodation a kind of substance that actually reflects their right to self-determination. Their story is an important reminder to lawyers that litigation does not operate in a vacuum; legal action is only one piece in a larger story of resistance. Like in the case of the Haida building a system of collaborative governance out of a consultation right, political and social maneuvering is sometimes required to give real substance to legal rights. Achieving equal footing required a variety of strategies for the acquisition of power in and outside the legal system.
In 2018, the Haida Nation brought another claim against the province of British Colombia, this time for a declaration of Aboriginal title to the Islands and their surrounding waters.[113] They seek an accounting of all benefits collected by the Province in connection with Haida Gwaii and compensation for unlawful infringements of their Aboriginal title.[114] After already receiving a Supreme Court decision recognizing their strong prima facie case for Aboriginal title, it seems all but certain that the Haida Nation will win this claim. Perhaps after this last bargaining chip is won they will finally be able to stop fighting and enjoy control over the Islands they have inhabited for the last ten thousand plus years. More likely, this will only be one more step in a process toward reconciliation that will be ongoing as long as colonial governments in their present form continue to exist. But Haida sovereignty has continued to flourish and grow in the face of all obstacles and will likely continue to be an inspiration and model to Native and non-Native people fighting for change for many years to come.
[1] Mark Dowie, The Haida Gwaii Lesson: A Strategic Playbook for Indigenous Sovereignty 3 (Jennifer Sahn & Jessica Gardner eds., 2017).
[2] Id.
[3] Louise Takeda, Islands' Spirit Rising: Reclaiming the Forests of Haida Gwaii 4-5 (2015).
[4] Mark Miller, 13,800-Year-Old Haida Site Found Underwater in Canada, Ancient Origins (Dec. 22, 2014,12:44 AM), https://www.ancient-origins.net/news-history-archaeology/13800-year-old-haida-site-found-underwater-canada-002485 [https://perma.cc/H59L-YCHY].
[5] Dowie, supra note 1, at 15.
[6] Id. at 20.
[7] Lindsay Galbraith, Making Space for Reconciliation in the Planning System, 15 Plan. Theory & Prac. 453, 460 (2014).
[8] Dowie, supra note 1, at 20–21; Galbraith, supra note 7.
[9] Galbraith, supra note 7, at 460.
[10] Louise Takeda & Inge Røpke, Power and Contestation in Collaborative Ecosystem-Based Management: The Case of Haida Gwaii, 70 Ecological Econ. 178, 180 (2010).
[11] Dowie, supra note 1, at 5.
[12] Takeda, supra note 3, at 5.
[13] Id.
[14] Takeda & Røpke, supra note 10, at 180.
[15] Id.; Mark Dowie, Wanna Save the Planet? Follow the Haida Nation’s Example, Nation (Aug. 16, 2017), https://www.thenation.com/article/wanna-save-the-planet-follow-the-haida-nations-example/ [https://perma.cc/LRV6-KQQE].
[16] Takeda & Røpke, supra note 10, at 180–81; Caitlyn Vernon, We Gathered to Say Haw’aa, Tyee (Nov. 25, 2010), https://thetyee.ca/Life/2010/11/25/SayHawaa/print.html [https://perma.cc/F54Y-KWSG].
[17] Dowie, supra note 15.
[18] Lin Weich, How the Watchmen of Haida Gwaii Preserve the Past, Reader’s Digest Can., https://www.readersdigest.ca/travel/canada/haida-gwaii-watchmen/ [https://perma.cc/4SRK-8B3R] (last visited Jan. 6, 2020).
[19] Dowie, supra note 15.
[20] Vernon, supra note 16.
[21] Id.
[22] Shyanna Sawyer, Gwaii Hanaas Report: 25 Years of Good People Working Together, Haida Gwaii Observer (Aug. 4, 2018, 9:30 AM), https://www.haidagwaiiobserver.com/opinion/gwaii-haanas-report-25-years-of-good-people-working-together/ [https://perma.cc/3QM9-Q3HP].
[23] Galbraith, supra note 7, at 461–62.
[24] Takeda & Røpke, supra note 10, at 180.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Dowie, supra note 15.
[31] Russ Jones et al., Strategies for Assertion of Conservation and Local Management Rights: A Haida Gwaii Herring Story, 80 Marine Pol’y 154, 156 (2017).
[32] Dowie, supra note 15.
[33] Jack Litrell, Gallery: Giving Back the Name With Respect Ceremony, Vancouver Sun (June 18, 2010), http://www.vancouversun.com/Gallery+Giving+Back+Name+With+Respect+Ceremony/3168318/story.html [https://perma.cc/78X6-UR7E].
[34] Dowie, supra note 15.
[35] Id.
[36] Jones et. al., supra note 31, at 157 (citation omitted).
[37] First Nations & Indigenous Studies, Univ. of B.C., Aboriginal Title, Indigenous Foundations, https://indigenousfoundations.arts.ubc.ca/aboriginal_title/ (last visited Jan. 8, 2020) (hereafter Aboriginal Title); St Catherine’s Milling and Lumber Co. v. The Queen, [1887] 13 S.C.R. 577 (Can.).
[38] Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights 3 (Hamar Foster, Heather Raven, Jeremy Webber, eds., 2011).
[39] Id.
[40] “The 1969 White Paper (formally known as the “Statement of the Government of Canada on Indian Policy, 1969”) was a Canadian government policy paper that attempted to abolish previous legal documents pertaining to Indigenous peoples in Canada, including the Indian Act and treaties, and assimilate all “Indian” peoples under the Canadian state.” The White Paper, 1969, The Canadian Encyclopedia, https://www.thecanadianencyclopedia.ca/en/article/the-white-paper-1969 (last accessed Jan. 28, 2020).
[41] Let Right Be Done, supra note 38 (quoting Statement of the Government of Canada on Indian Policy, 1969).
[42] Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313 (Can.).
[43] Id.; Let Right Be Done, supra note 38, at 4.
[44] Id. at 4-5.
[45] Id. at 4-6.
[46] Id. at 6; Aboriginal Title, supra note 37.
[47] First Nations & Indigenous Studies, Univ. of B.C., Guerin Case, Indigenous Foundations, https://indigenousfoundations.arts.ubc.ca/guerin_case/ (last visited Jan. 8, 2020); Guerin v. The Queen, [1984] 2 S.C.R. 335.
[48] Delgamuukw v. British Columbia [1997] S.C.R. 1010 (Can.).
[49] Id.
[50] Id.
[51] Id. at para. 117.
[52] Id. at para. 133.
[53] Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (U.K.) s. 35.
[54] Delgamuukw, S.C.R. 1010 at para. 143.
[55] Id. at para. 138.
[56] Id. at para. 161.
[57] Id. at para. 165. The Court names “the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.” Id.
[58] Id. at para. 162.
[59] Id. at para. 168.
[60] Id. at para. 169.
[61] Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257 (Can.).
[62] Id. at paras. 66, 95.
[63] Id. at para. 32.
[64] Id. at para. 73.
[65] Id. at para. 76.
[66] Id. at para. 77.
[67] Galbraith, supra note 7, at 455 (citing R v. Van der Peet, [1996] S.C.R. 507, para. 49 (Can.)).
[68] Id. at 454 (citations omitted).
[69] Donna Craig, Recognizing Indigenous Rights Through Co-Management Regimes: Canadian and Australian Experiences, 6 N.Z. J. Envtl. L. 199, 253 (2002).
[70] Id.
[71] Galbraith, supra note 7, at 456 (citation omitted).
[72] Craig, supra note 69, at 253.
[73] Ngaio Hotte et al., Influences on Trust During Collaborative Forest Governance: A Case Study From Haida Gwaii, 49 Can. J. Forest Res. 361, 362 (2019) (citations omitted).
[74] Id.
[76] Nicolas Houde, The Six Faces of Traditional Ecological Knowledge: Challenges and Opportunities for Canadian Co-Management Arrangements, 12(2) Ecology & Soc’y 34, 37–38 (2007). For a full understanding of how so-called scientific facts may be intertwined with and inseparable from cultural beliefs of indigenous peoples, and how science and policy-makers have devalued this type of knowledge, see Rebecca Tsosie, Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights, 87 Wash. L. Rev. 1133 (2012) (“For example, many Native peoples in the Pacific Northwest maintain an impressive scientific knowledge of the wild salmon runs and their cycle from ocean to inland waterways. However, they also consider salmon to be one of their First Foods and a sacred resource, describing salmon within their indigenous language as a distinct ‘people.’ Thus, the salmon harvest may be viewed ‘scientifically’ as a set of management strategies designed to promote sustainability of a ‘resource.’ But, it would be equally accurate to view tribal salmon management as an ethical system with corresponding rights and duties between the human and non-human ‘peoples’ that affects systems of governance.”) (footnotes omitted).
[77] Houde, supra note 76, at 40.
[78] Id.
[80] Takeda, supra note 3, at 9.
[81] Takeda & Røpke, supra note 10, at 182.
[82] Id.
[83] Id.
[84] Id.
[85] A “common set of scientific resources for the development and implementation of ecosystem-based management” developed by an “independent multi-disciplinary body.” Id.
[86] The Haida Land Use Vision “presents a contemporary indigenous vision of nature-society relations as an alternative to the decontextualized, exchange-value dominated discourses of land and forests.” Id.
[87] Id. at 183.
[88] Id.
[89] Id.
[90] Id. at 184.
[91] Id.
[92] Id. at 183-84.
[93] Tony Penikett, Six Definitions of Aboriginal Self-Government and the Unique Haida Model, Paper prepared for the Action Canada Northern Conference, 7–8 (Sept. 2012).
[94] Id.
[95] Haida Nation v. British Columbia (Minister of Forests), [2004] S.C.R. 511, para. 39 (Can.).
[96] Takeda & Røpke, supra note 10, at 184.
[97] Id. at 185.
[98] Id.
[99] Id. at 186.
[100] Id.
[101] Eugene Thomlinson & Geoffrey Crouch, Aboriginal Peoples, Parks Canada, and Protected Spaces: A Case Study in Co-Management at Gwaii Haanas National Park Reserve, 15 Annals Leisure Res. 69, 78 (2012) (citations omitted).
[102] Id.
[103] Id. at 80.
[104] Id. at 81 (citation omitted).
[105] Id. at 82 (citation omitted).
[106] Id. (citation omitted).
[107] Id. at 81.
[108] Jones et. al., supra note 31, at 160–61.
[109] Id. at 160.
[110] Id. at 161 (footnote omitted).
[111] Id. (footnote omitted). Fisheries negotiations following the 2015 election of Justin Trudeau’s Liberal government appear to be going somewhat more smoothly for the Haida. See id.
[112] Id. at 155.
[113] Haida Nation v. British Columbia (Attorney General), [2018] B.C.C.A. 462 (Can.).
[114] Id.
