Geoffrey Moyse: Haida land deal enabled by legal subterfuge

An undated photo taken in the Haida Gwaii archipelago, formerly known as the Queen Charlotte Islands. Both the B.C. NDP government and the federal Liberals secretly negotiated with the Haida to give the First Nation title to about a million hectares of land, water and seabed, writes Geoffrey Moyse. Photo by Murray Foubister / Government of B.C.

Article content

In a recent op-ed in the National Post, Josh Dehaas of the Canadian Constitution Foundation wrote: “Last September, many Canadians were shocked to learn through a Haida Nation news release that British Columbia and Canada had gone behind closed doors in judges’ chambers and signed an agreement that recognized Aboriginal title over all of Haida Gwaii. Without having to prove their title in court, the Haida gained constitutionally protected rights over the entire archipelago.”

Article content

Article content

His basic point was that governments have been negotiating Aboriginal title and then seeking court declarations of such title over vast parts of British Columbia — areas that would almost assuredly never pass the test of being subject to Aboriginal title if litigated in the courts.

Article content

Article content

Article content

The legal subterfuge to which Dehaas alluded — a process of concurrent bilateral negotiations between the Haida and the provincial and federal governments — goes back more than a few years.

Article content

Both the B.C. NDP government and the federal Liberals secretly negotiated with the Haida independent but largely mirror agreements, with the goal of legally recognizing Aboriginal title over the entirety of the Haida Gwaii archipelago (formerly called the Queen Charlotte Islands), including both Crown and private lands, rather than continuing to insist that the title claim be proven in the courts.

Article content

The Haida refused to negotiate a treaty (which would have involved proper tripartite negotiations with B.C. and the federal government), and instead negotiated and finalized in July 2024 a bilateral agreement with the B.C. government called the “Rising Tide Agreement.”

Article content

Article content

At the same time however, they also negotiated a very similar agreement with Ottawa for the same territorial Aboriginal title recognition. This was finalized with the federal government in November of 2024 and is called the “Big Tide (Low Water) Agreement.”

Article content

Article content

On Sept. 5, 2025, the B.C. Supreme Court was asked by the Haida and the federal and provincial governments to recognize the “negotiated” agreements and issue a Consent Order declaring Aboriginal title recognized and affirmed by Section 35 of the Constitution to the entirety of the Haida archipelago, including all private fee simple lands.

Article content

This Aboriginal title consent declaration covers about a million hectares of land, water and seabed. By comparison, the Cowichan case in Richmond, B.C., found Aboriginal title to about 324 hectares of land.

Article content

The Consent Order regarding Aboriginal title to Haida Gwaii was not a court declaration borne of a lengthy Aboriginal title trial ultimately decided by the courts as in the Cowichan case, but rather a court deferring to what it was told those three parties had “agreed to” for a title outcome on Haida Gwaii.