Appearance before the Standing Committee on Indigenous and Northern Affairs (INAN) - Bill S-16, An Act respecting the recognition of the Haida Nation and the Council of the Haida Nation (October 21, 2024)

Overview
Issue Papers

Overview

1. Scenario note

Committee: Standing Committee on Indigenous and Northern Affairs (INAN)

Date: October 21, 2024 at 4:30 p.m.

Location: Room 415, Wellington Building, 197 Sparks Street, House of Commons

Witnesses:

(4:30 p.m. – 5:30 p.m.):

The Hon. Gary Anandasangaree, Minister of Crown-Indigenous Relations

Department officials:

Danielle White, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, CIRNAC
Paul Dyck, Federal Negotiations Manager, Negotiations West, Treaties and Aboriginal Government, CIRNAC

Department of Justice:

Bruce Hamilton, Legal Counsel

Committee Members (12):

Patrick Weiler (Lib - Chair)
Jamie Schmale (CPC - Vice-Chair)
Sébastien Lemire (BQ - Vice-Chair)
Jaime Battiste (Lib)
Ben Carr (Lib)
Anna Gainey (Lib)
Brendan Hanley (Lib)
Michael V. McLeod (Lib)
Lori Idlout (NDP)
Eric Melillo (CPC)
Bob Zimmer (CPC)
Martin Shields (CPC)

Planned Agenda:

The Minister will attend in-person.
The Minister, supported by departmental officials, will appear from 4:30 p.m to 5:30 p.m on October 21, 2024. He will provide opening remarks of five minutes and then respond to questions.

Meeting Logistics:

The Minister and departmental officials will be invited to sit at the table by the Chair or Clerk of the Committee.
Quorum to hear testimony requires at least three members, including one member of the opposition and one member of the government.
The Committee Chair will open the meeting and provide instructions for the meeting proceedings. The Chair will then introduce all witnesses and invite the Minister to deliver remarks. This will be followed by a question and answer session.
Haida Nation is expected to appear for the first hour, from 3:30 p.m. to 4:30 p.m.
Time limits for questions (including response) and order of rotation is as follows:
- First round (6 minutes for each Party)
  - CPC
  - Lib
  - BQ
  - NDP
- Second and subsequent rounds
  - CPC (5 minutes)
  - Lib (5 minutes)
  - BQ (2.5 minutes)
  - NDP (2.5 minutes)
  - CPC (5 minutes)
  - Lib (5 minutes)
While this is the standard time allocation for each Party, the committee is the master of its own proceedings and can adopt rules specifying the length of time members have to pose questions to witnesses and the order in which this occurs.
If the appropriate documentation is provided to the Clerk, associate members may substitute as members of the committee; ask questions of the witnesses, move motions, and vote.
The meeting concludes at 5:30 p.m. or at the call of the Chair.

Context:

Introduction and first reading in of Bill S-16 in the Senate occurred on February 8, 2024.
The sponsor of the Bill is Senator Margo Greenwood (ISG, British Colombia), who received a technical briefing by department officials on February 12, 2024. The critic, Senator Yonah Martin (CPC, British Columbia) received a technical briefing on February 27, 2024.
Second reading of Bill S-16 in the Senate occurred on February 29, 2024.
Senators Brent Cotter (ISG, Saskatchewan) and René Cormier (ISG, New Brunswick), in addition to Senator Margo Greenwood, received a technical briefing by department officials on February 15, 2024.
On April 9 and 10, 2024, Bill S-16 was presented at the Standing Senate Committee on Indigenous Peoples (APPA). The Minister and departmental officials appeared at APPA on April 10, 2024. The Bill was reported back to the Senate without amendment. Consideration at APPA was completed on April 11, 2024.
Third reading in the Senate was completed on May 22, 2024.
First reading and Introduction in the House of Commons was completed on June 6, 2024.
The bill was referred to committee on June 19, 2024.
MPs of all affiliations are expected to generally support the proposed initiative as it advances reconciliation and supports First Nation's self-determination.
Other recent legislation to recognize Indigenous self-government has been supported by parliamentarians. For example, Bill C-51, Self-Government Treaty Recognizing the Whitecap Dakota Nation/Wapaha Ska Dakota Oyate Act, received widespread support and received royal assent on June 22, 2023.
The Haida Nation is located on the Haida Gwaii archipelago off the north coast of British Columbia. On August 13, 2021, the Haida Nation, British Columbia, and Canada (the Parties) signed the non-binding GayGahlda "Changing Tide" Framework for Reconciliation (GayGahlda "Changing Tide"), providing a foundation for a renewed process of negotiations for incremental reconciliation agreements.
On July 18, 2023, Canada signed the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (the Recognition Agreement), the first incremental reconciliation agreement reached under GayGahlda "Changing Tide."
- The Recognition Agreement has not yet been tabled in the House of Commons or the Senate.

2. Opening Remarks

Speech for the Honourable Gary Anandasangaree, Minister of Crown-Indigenous Relations
To appear before the House of Commons Standing Committee on Indigenous and Northern Affairs (INAN) Bill S-16 An Act respecting the recognition of the Haida Nation and the Council of the Haida Nation

October 21, 2024

659 words / 5 minutes @ 130 wpm (strict time limit)

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Hello, bonjour, Sángaay 'láa [Sing-ay-la] ["Good day"]

Mr. Chair, I would like to acknowledge that we are on the unceded traditional territory of the Anishinaabeg Algonquin people, and I'm here to speak in support of Bill S-16, An act respecting the recognition of the Haida Nation and the Council of the Haida Nation.

I would like to thank everyone who has worked to get us to this point in this journey, including:

the Council of the Haida Nation;
the Government of British Columbia;
Senators for their thoughtful study and debate of the Bill;
And most importantly, the determination and leadership of the entire Haida Nation, who have advocated for their vision of governance and self-determination for decades.

Legislation supporting Indigenous self-determination is a crucial step toward reconciliation, and Bill S-16 does just that. It is a step that respects the inherent rights of the Haida Nation to control how they govern themselves, and that respects the governing body they have chosen to represent the Nation on matters affecting the lands and waters of Haida Gwaii.

In line with commitments Canada has made under the United Nations Declaration on the Rights of Indigenous Peoples Act, this Bill helps build a future where the Haida Nation can thrive.

If this Bill is passed, it would accomplish two very important things:

It would solidify that both Canada and British Columbia legally recognize that the Haida Nation holds inherent rights of governance and self-determination; and
It would affirm that the Council of the Haida Nation is authorized to make decisions on those rights.

More specifically, it would confirm that the Council of the Haida Nation can exercise its responsibilities as a distinct legal entity, similar to other governments in Canada.

This legislation is backed by years of productive intergovernmental discussions and engagement between the Haida Nation, British Columbia, and Canada.

These conversations began decades ago, and have been especially productive in the last five years. Progress has included:

the 2021 GayGahlda [Gay-gal-tha] "Changing Tide" Framework for Reconciliation, which has served as the foundation for a renewed process of incremental reconciliation negotiations;
and the 2023 Nang K̲'uula • Nang K̲'úulaas [nang koo-la, nang koo-laws] Recognition Agreement, the first tripartite agreement through this process.

These agreements laid the groundwork for Bill S-16, which was co-developed in collaboration with the Haida Nation and British Columbia. I am pleased to say that both parties support the proposed Bill.

In fact, British Columbia has already passed parallel provincial legislation to implement Nang K̲'uula • Nang K̲'úulaas [nang koo-la, nang koo-laws] Recognition Agreement, and recently moved forward on an agreement and legislation to recognize the Haida Nation's Aboriginal title.

Mr. Chair, passing Bill S-16 is the federal government's next step.

I would like to acknowledge an important point many Senators and witnesses raised at the Senate Standing Committee on Indigenous Peoples: the process to get here has been a 50-year journey for the Haida Nation, including 20 years for this set of negotiations.

With this history, it is now our responsibility to ensure this Bill proceeds in a timely manner.

We're very much guided by the Haida Nation in co-developing this Bill. They have told us that this legislation needs to go forward to clear the way for other negotiations between the Haida Nation and the Government of Canada.

The time of governments telling Indigenous Peoples what to do is over. We can no longer rely on the Indian Act as the legal basis of our relationship. Instead, we need to move towards a true nation-to-nation relationship, and that requires supporting self-determination and self-government.

This isn't a political issue — it is an issue of rights. Rights that the Haida Nation have exercised for millennia.

Throughout this process, Haida have provided a definition of what reconciliation means to them: "good people working together to make things right".

I hope you'll join me in supporting this Bill, and do our part to make things right with the Haida Nation.

Háw'aa. Thank you. Hiy hiy.

3. Bill S-16

Bill S-16 An Act respecting the recognition of the Haida Nation and the Council of the Haida Nation

4. Clause-by-clause analysis

Long Title

Provides for the long title of the Act, "An Act respecting the recognition of the Haida Nation and the Council of the Haida Nation".

Preamble

The preamble sets out the context for the Act, highlighting:

The Haida Nation, British Columbia and Canada entered into the GayGahlda "Changing Tide" Framework for Reconciliation in 2021 to advance their objective of achieving reconciliation through negotiations;
The Parties entered into the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (the Recognition Agreement) on July 18, 2023; and
An Act of Parliament is required to implement sections 5 and 7 of the Recognition Agreement.

Clause 1: Short Title

Provides the short title of the Act, "Haida Nation Recognition Act".

Clause 2: Definitions

Provides definitions that apply throughout the Act, including the Haida Nation, Council of the Haida Nation, and Secretariat of the Haida Nation.

Clause 3: Recognition

Provides that the Government of Canada recognizes the Haida Nation holds inherent rights of governance and self-determination, and the Council of the Haida Nation is the government authorized to act on behalf of the Haida Nation.

Clause 4: Powers

Provides that, in accordance with the Constitution of the Haida Nation, the Haida Nation exercises its governing powers through the Council of the Haida Nation.

Clause 5: Capacity, rights, powers and privileges

Provides that the Council of the Haida Nation is a legal entity with the capacity, rights, powers and privileges of a "natural person".

Clause 6: Immunity and vicarious liability

Provides that no action or other proceeding for damages may be instituted against a representative of the Haida Nation or a public official for anything done or omitted in the exercise or performance of any power, duty or function, unless it is established the person acted in bad faith.

Provides that the Haida Nation, Council of the Haida Nation, or a public entity established by the Council are not absolved from vicarious liability arising out of anything done or omitted by a representative of the Haida Nation or a public official in the exercise or performance of any power, duty or function.

Provides definitions of "public official" and "representative of the Haida Nation" that apply in this clause.

Clause 7: Orders and regulations

Provides the Governor in Council authority to make orders and regulations necessary for the purpose of the Act.

Clause 8: Interests, obligations, etc. vested or transferred

Provides confirmation that, on the coming into force of section 4 of the British Columbia Haida Nation Recognition Act, and the dissolution of the Secretariat of the Haida Nation society under the British Columbia Societies Act, all interests, assets, properties, tenures, obligations and liabilities of the Secretariat are transferred or vested in the Council of the Haida Nation.

Clause 9: Continuation of Agreements

Provides confirmation that agreements that were entered into between the Secretariat of the Haida Nation and Canada before the coming into force of section of 4 of the British Columbia Haida Nation Recognition Act continue in force in accordance with their terms as if the agreements were entered into by the Council of the Haida Nation.

Clause 10: Continuation of legal arrangements

Confirms that the Act does not affect legal arrangements between Canada and the Skidegate Band Council and Old Massett Village Councils or members of the Skidegate band and Old Massett Village Council band.

5. Questions & Answers

Q1. What is the purpose of the proposed Haida Nation Recognition Act?

A1. The purpose of the proposed legislation is to implement sections of the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (Recognition Agreement) between the Haida Nation, British Columbia and Canada that require legislation.

The Recognition Agreement commits Canada and British Columbia to develop legislation to implement sections of the agreement that relate to the legal status and capacity of the Council of the Haida Nation, and liabilities and accountabilities of Haida representatives and public officials.

British Columbia passed the provincial Haida Nation Recognition Act in May 2023. The proposed federal legislation would fulfill Canada's part of the commitment.

Q2. What is the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement?

A2. The Recognition Agreement is the first reconciliation agreement reached between the Haida Nation, British Columbia and Canada under the GayGahlda "Changing Tide" Framework for Reconciliation (GayGahlda "Changing Tide").

Under GayGahlda "Changing Tide", the parties agreed to an incremental process to advance their common objective of achieving reconciliation through negotiations.

Through the Recognition Agreement, Canada and British Columbia recognized that the Haida Nation holds inherent rights of governance and self-determination, and exercises governing powers through the Council of the Haida Nation.

The Recognition Agreement also committed Canada and British Columbia to develop and introduce legislation required to implement certain sections of the agreement.

Q3. What will this legislation change for the Haida Nation?

A3. Once federal and provincial legislation are in force, governments and third parties will have added clarity to engage with the Council of the Haida Nation as the government of the Haida Nation. This will support the Council of the Haida Nation in exercising its responsibilities and relationships as a governing body.

The legislation also confirms that the Council of the Haida Nation is a legal entity, which provides a basis for entering into agreements and contracts, and acquiring and holding property. It also provides a basis for transferring agreements, assets and liabilities to the Council of the Haida Nation that are held by the Secretariat of the Haida Nation, a society registered under British Columbia's Societies Act.

Lastly, the legislation confirms that Haida public officials and representatives will be immune from any legal action for damages related to the performance of their responsibilities, as long as they have not acted in bad faith.

The proposed legislation does not change the status of Haida band councils, which will continue to operate in accordance with existing legal arrangements. It also does not change the status of Haida band members or their eligibility for related programs, services or benefits.

Q4. How is this legislation different from British Columbia's legislation?

A4. The proposed legislation has been co-developed with the Haida Nation and British Columbia to ensure federal and provincial legislation are aligned and working together to implement the Recognition Agreement.

One of the primary differences is the provincial legislation is required to dissolve the Secretariat of the Haida Nation, currently registered as a society under British Columbia's Societies Act, as a prior step to transfer existing agreements, assets and liabilities to the Council of the Haida Nation.

Q5. Are there other examples of similar legislation?

A5. Elements of the proposed legislation that relate to the legal capacity and powers of the Council of the Haida Nation are common features in self-government legislation, including recent legislation for the self-government treaty with the Whitecap Dakota Nation.

Due to the incremental nature of the Recognition Agreement, the legislation is narrower in scope than most self-government legislation. Further legislation is anticipated as the parties negotiate other reconciliation agreements.

Q6. How does this legislation relate to specific areas of Haida jurisdiction such as core governance or child and family services?

A6. Unlike most self-government agreements, the Recognition Agreement does not address specific jurisdictional matters, which will be the subject of future negotiations. Accordingly, jurisdictional matters are not addressed in the proposed legislation.

The Recognition Agreement will serve as a step toward other reconciliation agreements regarding Haida governance and jurisdiction, starting with the Haida Gwaii terrestrial area. Additional legislation is anticipated for the implementation of future agreements between Haida Nation, British Columbia, and Canada.

Q7. How will this legislation relate to land and marine matters?

A7. The Recognition Agreement focuses solely on Haida governance. Accordingly, the proposed legislation only relates to matters concerning Haida governance, and in particular, the Council of the Haida Nation, Haida representatives and public officials.

The Recognition Agreement, and this legislation, are important steps toward future reconciliation agreements regarding Haida governance and jurisdiction, starting with the Haida Gwaii terrestrial area.

Matters involving the marine area are among those that will be addressed as part of a longer term negotiation agenda.

Q8. Will Haida citizens support this legislation? Could there be negative response by Haida citizens?

A8. The proposed legislation fulfills a commitment in the Recognition Agreement between the Haida Nation, British Columbia and Canada. The legislation was co-developed with representatives of the Haida Nation and British Columbia, and introduced with their support.

While some negative response is always possible, the Government of Canada is not aware of any that has been expressed or reported publicly since the legislation was introduced.

The Government of Canada expects the Haida Nation would address any concerns expressed by Haida citizens in a similar way as was done after the signing of the Recognition Agreement.

After the signing of the Recognition Agreement, Haida leadership responded to concerns expressed by some Haida citizens and matriarchs through its own internal governance and communications channels. This included targeted communications through the Haida Laas newsletter, and verbal and written statements provided by the President of the Haida Nation.

These are just a few ways Haida leadership is engaging with Haida citizens throughout the negotiations, including regular community engagement meetings and reporting sessions, and the Haida House of Assembly.

Haida representatives are best placed to provide further detail on the possibility of negative response and actions to address any concerns of Haida citizens.

Q9. Will this legislation impact the Haida Nation's hereditary governance?

A9. The proposed legislation implements sections of the Recognition Agreement that relate to the legal powers and capacities of the Council of the Haida Nation, which is the body the Haida Nation has chosen to exercise governing powers. In this manner, the Recognition Agreement, and the legislation, respects how the Haida Nation has chosen to govern itself and conduct external affairs in accordance with the Haida Constitution.

The legislation does not address or alter the relationship between elected and hereditary leadership or matriarchs, which are matters internal to the Haida Nation.

Haida representatives are best placed to provide more detail on these aspects of Haida governance.

Q10. Will this legislation affect other residents and third parties on Haida Gwaii?

A10. Local governments and other third parties that engage with the Haida Nation will benefit from the added clarity provided by the federal and provincial legislation. This includes confirmation that existing obligations and liabilities currently held by the Secretariat of the Haida Nation will transfer to the Council of the Haida Nation.

The legislation will not otherwise affect third parties or non-Haida residents operating on Haida Gwaii.

Q11. Will this legislation affect other Indigenous groups?

A11. The Recognition Agreement focuses solely on governance matters internal to the Haida Nation. Accordingly, the legislation will not affect other Indigenous groups.

Other Indigenous groups may be interested in the incremental approach to governance and self-determination that the Recognition Agreement and this proposed legislation supports.

Q12. Are there any outstanding taxation issues for the parties to resolve?

A12. Due to the incremental nature of these negotiations, work remains to build upon understandings achieved through the Recognition Agreement and more fully support the exercise of Haida governance and self-determination. This includes priority work regarding taxation, which is one of the topics the parties are examining in the current stage of negotiations.

The Recognition Agreement and proposed legislation do not address potential tax consequences that may arise due to the dissolution of, and transfer of assets from, the Secretariat of the Haida Nation to the Council of the Haida Nation. This matter continues to be under consideration by the parties.

The Haida Nation is supportive of Canada's legislation proceeding without delay, on the understanding that the parties are committed to reviewing and assessing potential tax consequences, if any, that may arise from these transitional steps.

Canada's goal remains to support the Haida Nation in exercising its inherent rights and governing powers as it has chosen to do through the Council of the Haida Nation.

Q13. How will the Haida Title Lands Agreement between the Haida Nation and British Columbia affect the proposed legislation?

A13. The Haida Title Lands Agreement between the Haida Nation and British Columbia is not anticipated to affect the proposed legislation.

The Government of Canada is not a party to the Haida Title Lands Agreement, and the agreement is not intended to affect federal interests, such as federal lands or infrastructure on Haida Gwaii.

The proposed legislation is focused solely on matters related to Haida governance, and in particular, meeting the Government of Canada's commitment to introduce legislation required to implement select sections of the Recognition Agreement. The Recognition Agreement, and the proposed legislation, do not address matters related to lands or jurisdictions on Haida Gwaii.

Q14. Will Canada negotiate a similar title lands agreement with the Haida Nation?

A14. Negotiations under GayGahlda "Changing Tide" are taking place in the context of Aboriginal title and rights litigation, which remains active while negotiations proceed.

GayGahlda "Changing Tide" includes a process for managing the relationship between negotiations and litigation, and contemplates the possibility of the parties reaching reconciliation agreements that address subject matters in the litigation.

The Government of Canada is continuing discussions with the Haida Nation and British Columbia on further agreements for the recognition and implementation of the Haida Nation's Aboriginal title and rights, and how the outcomes of negotiations could be reflected in the litigation.

Issue Papers

6. Overview

Background

The Haida Nation is located on the Haida Gwaii archipelago off the north coast of British Columbia, with a registered population of approximately 4,942 members. The Haida Nation has a formalized governance system as set out in the Constitution of the Haida Nation (Haida Constitution), and consists of 14 elected representatives and two representatives appointed by the Haida Old Massett Village and Skidegate band councils. The Haida Constitution also vests the governing power of the Haida Nation in the Council of the Haida Nation.

On August 13, 2021, the Haida Nation, British Columbia, and Canada (the Parties) signed the non-binding GayGahlda "Changing Tide" Framework for Reconciliation (GayGahlda "Changing Tide"), providing a foundation for a renewed process of negotiations for incremental reconciliation agreements as an alternative to the Haida Nation's Section 35 Rights litigation, which was initiated in 2002 and remains active while negotiations proceed. In GayGahlda "Changing Tide," Canada and British Columbia set out principles recognizing inherent Haida Title and Rights throughout terrestrial Haida Gwaii, and the Parties committed to a negotiating process to address Haida priorities, as well as an approach for managing litigation and negotiations.

On July 18, 2023, Canada signed the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (the Recognition Agreement), the first incremental reconciliation agreement reached under GayGahlda "Changing Tide". The Haida Nation and British Columbia signed the Recognition Agreement on April 4 and 24, 2023 respectively. The Recognition Agreement is a legally binding agreement in which Canada and British Columbia recognize that the Haida Nation holds inherent rights of governance and self-determination, that the Council of the Haida Nation is the government of the Haida Nation, and that the Council of the Haida Nation is the entity authorized by the Haida Nation to make decisions regarding Haida Title and Rights.

Legislation

Signing the Recognition Agreement formalized Canada and British Columbia's recognition of the Haida Nation as a rights-bearing collective, and the Council of the Haida Nation as the government of the Haida Nation. Both federal and provincial enabling legislation are required for sections 5 and 7 of the Recognition Agreement to be given the force of law and apply to third parties.

Accordingly, on May 9, 2023, the Government of British Columbia passed Bill-18, Haida Nation Recognition Act, to implement sections 5 and 7 of the Recognition Agreement. The proposed federal legislation would also implement these specific sections of the Recognition Agreement.

Engagement process

The Haida Constitution sets out consultation requirements, including through the official national publication of "Haida Laas", to keep its citizens and community informed, and commits to pursue the goals of the Haida Nation through negotiations and diplomacy, including with regards to international agreements.

Following the negotiation of the Recognition Agreement, the Haida Nation followed an approval process that included a staged process of community consultation, recommendations by the Haida Lands & Title Committee and Hereditary Chiefs Council, and final approval by the Council of the Haida Nation.

Key elements of the proposed bill

The proposed legislation would affirm the following:

The Government of Canada's recognition of the Haida Nation as the holder of inherent rights of governance and self-determination;
The Council of the Haida Nation as the government of the Haida Nation;
The Council of the Haida Nation as a legal entity with the capacity, rights, powers and privileges of a natural person; and
The Haida Nation, Council of the Haida Nation, or other entities established by the Council may be held vicariously liable for loss or damage caused by Haida representatives or public officials.

Additionally, the proposed bill would demonstrate the Government of Canada's commitments to recognize Indigenous rights and support self-determination consistent with obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act passed in 2021.

Next steps

The Government of Canada will continue to advance the next negotiation priorities with the Haida Nation and British Columbia, in collaboration with implicated departments and agencies. Future reconciliation agreements are projected for the negotiation of Haida Title and Rights and are intended to remove matters from the Haida Nation's Section 35 Rights litigation, starting with the Haida Gwaii terrestrial area.

Negotiations will continue on priority topics that include Haida Title lands, protected areas, core governance, and financial arrangements for the Haida Gwaii terrestrial area. Other subject matters, such as those related to the Haida Gwaii marine area, are projected for a longer-term negotiations agenda.

7. History

On August 13, 2021, the Haida Nation, British Columbia, and Canada (the Parties) signed the GayGahlda "Changing Tide" Framework for Reconciliation (GayGahlda "Changing Tide"), providing a foundation for a renewed process of negotiations for incremental reconciliation agreements as an alternative to the Haida Nation's Section 35 Rights litigation, which was initiated in 2002 and remains active while negotiations proceed. Through GayGahlda "Changing Tide," Canada recognized inherent Haida Title and Rights throughout the Haida Gwaii terrestrial area, and the Parties committed to a negotiation process to address Haida priorities, and an approach for managing the relationship between negotiations and litigation.

On July 18, 2023, the Parties executed the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (Recognition Agreement), the first incremental reconciliation agreement reached under GayGahlda "Changing Tide". The Recognition Agreement is a legally binding agreement in which Canada and British Columbia recognize that the Haida Nation holds inherent rights of governance and self-determination, that the Council of the Haida Nation is the government of the Haida Nation, and that the Council of the Haida Nation is the entity authorized by the Haida Nation to make decisions regarding Haida Title and Rights.

Haida Section 35 Rights Litigation

The Haida Nation's claims regarding title and rights to Haida Gwaii were first accepted for negotiation by Canada in 1986. In 1993, the Haida Nation entered the British Columbia Treaty Process, represented by the Council of the Haida Nation.

In 2002, the Haida Nation initiated legal action against Canada and British Columbia (Haida Section 35 Rights litigation) seeking a declaration of Aboriginal title and rights to the entirety of the Haida Gwaii archipelago, as well as to submerged lands and marine areas, water column and surmounting airspace, and an area of the sea that comprises part of Canada's Exclusive Economic Zone. A trial is currently scheduled for early 2026.

Courts have held that Aboriginal rights are protected by Section 35 of the Constitution Act, 1982 and include Aboriginal title, which conveys ownership rights to the land, including the right to decide how the land will be used, the right of enjoyment and occupancy of the land, the right to possess the land, the right to economic benefits of the land, and the right to proactively use and manage the land. The 2004 Supreme Court of Canada decision, Haida Nation v. British Columbia (Minister of Forests), indicated the Haida Nation has a prima facie case for Aboriginal title and rights within Haida Gwaii.

In this context, the Recognition Agreement will serve as a step toward other incremental reconciliation agreements that more fully recognize and affirm Haida governance and jurisdiction, with the potential for reducing the scope of the Haida Section 35 Rights litigation. The agreement includes a commitment by the Parties to negotiate other reconciliation agreements that would further clarify Haida governance and jurisdiction, and the relationship between the Council of the Haida Nation and Crown governments, laws, jurisdictions and management within Haida Gwaii. Substantive elements regarding governance and jurisdiction will begin to be addressed in this next stage of negotiations.

In the meantime, the Recognition Agreement does not recognize any specific title or rights within any specific area of Haida Gwaii.

8. Engagement Process

On July 18, 2023, the Haida Nation, British Columbia and Canada entered into the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (Recognition Agreement), the first incremental reconciliation agreement under the GayGahlda "Changing Tide" Framework for Reconciliation (GayGahlda "Changing Tide"). The Haida Nation and British Columbia signed the Recognition Agreement on April 4 and 24, 2023 respectively. The Recognition Agreement is a legally binding agreement in which Canada and British Columbia recognize that the Haida Nation holds inherent rights of governance and self-determination, that the Council of the Haida Nation is the government of the Haida Nation, and that the Council of the Haida Nation is the entity authorized by the Haida Nation to make decisions regarding Haida Title and Rights.

Consultation and Parliamentary Ratification

The Government of Canada has collaborated with the Haida Nation and British Columbia as legislation was being drafted. The Recognition Agreement came into effect at the time of signing, except for sections 5 and 7, which require provincial and federal legislation to implement. British Columbia passed Bill-18, Haida Nation Recognition Act on May 9, 2023.

In November 2023, the Government of Canada shared the draft legislative proposal with the Haida Nation and British Columbia. The Haida Nation and British Columbia have signaled their support for the draft proposal, which has been developed collaboratively.

The proposed legislation is required to implement sections 5 and 7 of the Recognition Agreement and would need to be passed by Parliament. If the proposed bill is passed, it comes into effect upon Royal Assent.

9. Key Elements of the Bill

The proposed legislation would implement certain sections of the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (Recognition Agreement), and in particular, make sections 5 and 7 of the Recognition Agreement binding on all persons and bodies.

Recognition

The proposed legislation would affirm that the Government of Canada recognizes that the Haida Nation holds inherent rights of governance and self-determination, and that the Haida Nation exercises its governing powers through the Council of the Haida Nation.

Legal Status and Capacity

The proposed legislation would also affirm the Council of the Haida Nation as a legal entity with the capacity, rights, powers and privileges of a natural person.

Liability and Accountability

Under the proposed legislation, the Council of the Haida Nation and the Haida Nation may be held vicariously liable for loss or damage caused by Haida representatives or public officials.

Existing agreements, interests and obligations

The proposed legislation confirms that, on the coming into force of section 4 of the British Columbia Haida Nation Recognition Act, existing agreements, interests, and obligations held by the Secretariat of the Haida Nation incorporated under the provincial Societies Act would continue and transition to the Council of the Haida Nation.

Other Acts

No amendments to other acts, including the Indian Act, are required as a result of the proposed legislation. Existing legal arrangements between Canada and the Haida Old Massett Village Council and Skidegate bands will continue under the proposed legislation.

Orders and Regulations

If passed, the legislation would confirm that the Governor in Council may make any orders and regulations that are necessary for the purpose of the Act.

10. Implementation and Next Steps

Implementation

The Haida Nation, British Columbia, and Canada (the Parties) have agreed to an incremental approach to reconciliation negotiations. The proposed legislation is an important step in a process to recognize that the Haida Nation holds inherent rights of governance and self-determination, and to recognize the Council of the Haida Nation as the government of the Haida Nation.

If the proposed legislation is passed, it comes fully into force upon Royal Assent.

Next Steps

The Government of Canada will continue to advance the next negotiation priorities in collaboration with implicated departments and agencies. Future incremental agreements are projected for the negotiation of Haida Title and Rights, and are intended to remove matters from the Haida Nation's Section 35 Rights litigation, starting with the Haida Gwaii terrestrial area.

The Parties also have initiated a working group for addressing taxation matters, including those related to sections of the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement that could have tax consequences following the dissolution of the current Haida society under British Columbia's Societies Act and resulting transfers to the Council of the Haida Nation.

The Parties have agreed to reassess their negotiation progress in early 2025.

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Date modified:: 2025-02-18