Such a Long Journey: The Haida's Struggle for Justice
David R. Boyd
  Dancers wearing spectacular wooden masks swirled about as drums pounded. Eagle down floated in the air. An emotional and symbol-laden ceremony in Vancouver last week marked the start of what may be one of the most important lawsuits in Canadian history.
  The Haida Nation is seeking a court declaration of aboriginal title to the land, water, and resources of the archipelago known to the Haida as Haida Gwaii (meaning "islands of the people"). Although Haida Gwaii, known to most Canadians as the Queen Charlotte Islands, occupies a remote corner of the nation, the outcome of this legal battle goes to the heart of one of Canada's most vexing problems. Author John Ralston Saul identifies Canada's inability to reach reconciliation with aboriginal people as our greatest failure as a nation.
  In B.C., the colonial government abandoned treaty negotiations with native people in the mid-nineteenth century, creating a dilemma that remains unresolved 150 years later. For more than a century Haida leaders have peacefully argued, in Victoria and Ottawa, that they retain a legal right to their land and resources. Negotiations have gotten them nowhere and they have, understandably, turned to the courts to recognize and protect their rights.
  The Haida seek to regain control of the lands and resources of Haida Gwaii so that they can be managed in a sustainable manner, and so that the local community, both Aboriginal and non-Aboriginal, can enjoy a fair share of the economic benefits. The Haida have watched as literally billions of dollars worth of timber left their islands on barges bearing names like the Haida Brave. Yet reserve villages Massett and Skidegate still lack basic amenities like sidewalks.
  Canadian management of natural resources, dictated from Victoria and Ottawa, has failed the Haida time and time again. Brutal logging practices permitted by the provincial government devastated once-rich salmon runs. Because of over-logging, cedar trees of sufficient age and girth to craft canoes and totem poles are now rare. Over-fishing approved by the federal government hammered the rich marine resources that provided sustenance to the Haida for millennia.
  There has been extensive media and political commentary suggesting that the filing of the lawsuit is motivated by a desire to share in the riches of offshore oil and gas development. These suggestions betray a profound ignorance of Haida history, culture, and values.
  As the Haida Constitution states, "We owe our existence to Haida Gwaii. The living generation accepts the responsibility to ensure that our heritage is passed on to following generations." The Haida's deep commitment to ensuring the sustainability of their land was demonstrated by their leadership in creating Gwaii Haanas (South Moresby) National Park, now co-managed by the Parks Canada and the Haida.
  It should also be noted that the Haida have made it clear to all of the non-aboriginal people living on Haida Gwaii that they have nothing to fear from the Haida lawsuit. People who own homes or land will not be displaced. Thousands of local residents have signed the Haida's Unity Book, expressing support for their Aboriginal neighbours.
  In 1997's Delgamuukw decision, the Supreme Court of Canada set forth the requirements for proving Aboriginal title, which has never been successfully done in a Canadian court. The Haida must prove exclusive occupation and use of the land dating back to 1846 (the date of Crown sovereignty), and demonstrate an ongoing connection to the land. Once these tests are met Aboriginal title is established, meaning a unique legal interest, similar to ownership, in the land, water, and resources.
  The Haida have a compelling case. In a recent court decision involving a successful Haida challenge of a logging licence, the B.C. Court of Appeal observed that it was an inescapable conclusion that the Haida would establish the required facts. Archaeologists have unearthed evidence that the Haida occupied these lands for roughly 10,000 years. Linguists have determined that the Haida language is distinct from other coastal First Nations and belongs to an entirely different language group. Haida legend tells of the first tree growing after the last ice age. Before Europeans arrived, bringing diseases like smallpox that reduced the native population by up to 90%, the Haida lived in 23 villages spanning the full length of the islands.
  A decisive court victory acknowledging the Haida's Aboriginal title is the best hope of reinvigorating the moribund B.C. treaty process, which started in 1993 but has yet to produce a single final agreement. The Nisga'a treaty was the result of separate negotiations dating back to 1973. The Achilles heel of the current treaty process is that there is insufficient motivation for the provincial and federal governments to make reasonable or fair offers. The status quo is heavily weighted in governments' favour, as they receive all the royalties from resource use and control all of the decision-making. Further undermining governments' resolve is the fact that treaties are lightning rods for criticism from all sides, as the controversial Nisga'a deal demonstrated.
  For the Haida, the compelling factual and legal strength of their case is like holding four aces in a poker game. In these circumstances, Canada and B.C. have nothing to gain from a protracted court battle, and much to lose. Provincial and federal representatives should stop paying lip service to the treaty process and make a genuine effort to negotiate an honourable agreement with the Haida people. As the Supreme Court concluded in Delgamuukw, negotiation is the path to reconciliation.
  For many of the Haida's elders and hereditary chiefs who have passed away, justice delayed has meant justice denied. The Haida's long struggle is not yet over but with the filing of their momentous lawsuit, judgment day is finally drawing near.
  David R. Boyd is a senior associate with the University of Victoria's POLIS Project on Ecological Governance, and an Adjunct Professor in the School of Resource and Environmental Management at Simon Fraser University.
Victoria Times-Colonist, March 15, 2002.
Photo: Central Council of the Tlingit-Haida Indian Tribes