Register Wednesday | August 23 | 2017
Island Inherent Photograph by Benson Hilgemann.

Island Inherent

The fight for Haida Gwaii is more than a matter of land.

IN SKIDEGATE, BRITISH COLUMBIA, a small village on Haida Gwaii, the Spirit Lake Trail winds its way from the island’s main highway, near the ferry terminal that connects Canada’s most westerly region to the mainland.

I follow it through the lush understory, weaving between the gnarled tops of wide tree stumps—the handiwork of loggers plying their trade sometime over the last century. From the tops of the trees, jet-black ravens scan for prey and places to land below, squawking loud objections to my presence. It’s almost as if they’re reminding me to be respectful; that this is a holy place.

Whether it’s the ancient cedar and spruce trees towering above mountainous terrain that continues to thrust ever higher above salt-water waves, or the aging totem poles that dot the many beaches, Haida Gwaii has a sacred quality that’s hard to define. But the area’s indigenous residents are hoping that sacred connection will help them gain control over land they’ve occupied for millennia.

Once called the Queen Charlotte Islands, Haida Gwaii is now the focal point of one of the most advanced Aboriginal rights and title cases in Canadian history, where First Nations and the Crown could create a new, sustainable model for managing the land they share. The Haida people, who have been fighting for control over their traditional territory for decades, contend that they legally own these lands and waters—and that could mean major challenges for industrial projects like the Enbridge Northern Gateway pipeline. The Haida are generally open to industry and development if it is sustainable and aligns with their values, but they argue this pipeline and tanker project should not go ahead, and are taking legal action to stop it.

According to Peter Lantin, president of the Council of the Haida Nation (CHN), Northern Gateway representatives have failed to understand the Haida Nation’s responsibility to sustain Haida Gwaii’s healthy ecosystems—a responsibility, he says, that stems from a culture inextricably linked with the natural environment.

Those arguments have traditionally carried little weight with governments or businesses that base their decisions primarily on the monetary bottom line. But the Haida have an advanced land claim sitting before the Supreme Court, and that means those cultural objections could prove formidable on Haida Gwaii. 

IN THE TWENTIETH CENTURY, fishing and mining operations flourished on Haida Gwaii. But logging was the real golden goose of resource extraction, with forestry companies cashing in on a bonanza of old-growth trees. Between 1900 and 2004, more than 100 million cubic metres of wood floated away on barges—enough to build a pole, six feet wide, that could wrap all the way around the Earth. The intensive logging led to rampant ecosystem degradation, land-slides and polluted salmon streams. 

In response, the CHN was formed in 1974. Their aim was to establish Haida title to the islands and surrounding waters, and to end the destructive logging that threatened to destroy the area’s eco-systems. But a year later, the BC government renewed a tree farm license to log Lyell Island—one of the last remaining old-growth areas on Haida Gwaii.

The CHN filed a lawsuit against the BC Minister of Forests, asserting that Haida rights had not been taken into consideration. The lawsuit was unsuccessful. So, in October 1985, a rag-tag group of Haida protesters, clad in rain jackets and muddy rubber boots, locked arms across the logging road on Lyell Island’s Windy Bay, stopping loggers from getting to work. Pacing to stay warm in the chilled morning fog, they argued across their line in the dirt with a tough group of local foresters. The Athlii Gwaii blockade dragged on for two years. During that time, more than seventy people were arrested. Bruce Cockburn, Pete Seeger and other musicians staged a cross-Canada benefit concert in support of the Haida. The protest attracted international media attention, but as expected, the coverage displayed the “either-or” scenario of environmental disputes at the time: economy versus environment; jobs versus nature.

For Haida protesters, this was a cultural issue as much as an environmental one. They weren’t against all forestry; only unsustainable logging. They resented being shut out of management decisions for, and profits from, resources they felt were legally theirs. On July 11, 1987, the BC government finally pronounced the area in question—plus a whole lot more—protected from logging. In 1993, after some administrative fine-tuning, the Gwaii Haanas National Park Reserve and Haida Heritage Site was declared, a protected region that covers much of the southern half of Haida Gwaii and is collaboratively managed by the Canadian government and the Haida Nation. 

GWAII HAANAS MEANS “Islands of Beauty” in the Haida language. It is a pristine archipelago where towering mountains overlook dense, mossy valley forests and interlocking inlets and bays. The Hecate Strait, due east, is relatively shallow, while to the west, the land drops off dramatically, plunging more than two-and-a-half kilometres below the ocean waves, providing unique habitats for some 3,500 marine species—including deep-water sablefish and massive schools of swarming herring, sustaining the chinook and coho salmon that have kept the Haida people alive for centuries.

SGang Gwaay, one of the region’s southern islands and a UNESCO World Heritage Site, features the remains of SGang Gwaay Llnagaay, or Nan Sdins, a Haida village abandoned 130 years ago. The weathered monument poles and foundations of old cedar long houses are a testament to the thriving communities that covered this island before disease decimated the Haida population in the 1880s—from pre-contact populations estimated in the tens of thousands to under 1,000 people by the end of the nineteenth century.

The Gwaii Haanas Agreement was the culmination of long-term efforts to create some form of co-management that would reconcile Crown and Haida titles. “It’s based on an agreement to disagree,” says Ernie Gladstone, Gwaai Haanas superintendent since 2001. “There are two completely different views of ownership, but one common effort to protect the area.” It’s a unique model for other regions in Canada, he says, because it shows how groups with differing viewpoints can work together cooperatively. The six-member Archipelago Management Board, a team with equal Haida and government representation, manages Gwaii Haanas by consensus. “There are certainly challenges with cooperative management,” says Gladstone, who is one of the board members. “But at the end of the day, the decisions are always better, and the public is more supportive of them.” Both parties are now working toward an integrated land and sea management plan to be completed by 2015.

Gwaii Haanas is certainly the most visible example of a collaborative spirit of management, but it’s not the only one. In 2007, the BC government and the Haida Nation signed the Haida Gwaii Strategic Land Use Agreement, offering a long-term vision and blueprint for managing island resources using ecosystem-based management principles—an ecologically sensitive model for decision-making that recognizes all aspects and interconnections of an ecosystem, not just impacts on humans. The 2009 Kunst’aa Guu–Kunst’aayah Reconciliation Protocol is similarly focused on conserving natural resources, but its main purpose is to affirm the commitment of both the Haida Nation and the provincial government to work together to reconcile their differences with respect to competing claims to the land base. Though each party disagrees on who owns the land, they both agree on establishing a mutual way forward to protect the island’s most important ecological, cultural and spiritual areas.

The Haida have made headway toward reconciling title and shared land management. But CHN President Peter Lantin says that Enbridge’s proposed Northern Gateway oil pipeline project throws a wrench into these initiatives and jeopardizes not only the people of Haida Gwaii, but reconciliation throughout the country. For years, the Haida people were not involved in managing resources on the island, and they didn’t benefit from the resource extraction that did occur. “There was a negative connotation related to that history and that legacy, and it still remains,” Lantin says.

If proponents for Northern Gateway get their way, supertankers carrying diluted bitumen—a substance, often called “dilbit,” created by mixing bitumen with condensate light crude oil to make it flow freely—would regularly traverse the churning Hecate Strait and ocean waters that surround the island. It’s a scenario that most residents are unwilling to accept. “This is our home, our backyard,” Lantin says. “How would you feel if your home was threatened by an oil spill?”

SINCE THE 1,177-KILOMETRE Northern Gateway pipeline would stretch across two provinces before loading oil tankers, bound for Asian markets, at Kitimat, BC, the decision to approve it rests with Canada’s federal government. That approval—conditionally given in June—was never really in question: Prime Minister Stephen Harper, along with other key officials and industry proponents, has been touting the project’s benefits for years. From a purely economic standpoint, their case is strong. 

The pipeline would carry about 525,000 barrels of crude a day from Alberta’s tar sands—the third-largest oil reserve in the world, after Venezuela and Saudi Arabia—and help to ensure the valuable, but land-locked, product can reach a voracious world market. Oil production in the region is expected to double between 2012 and 2022. Currently, most tar sands crude only makes it to refineries in the southern United States where it is heavily discounted due to excess supply. The Canadian Association of Petroleum Producers claims the transportation bottleneck costs the Canadian economy about $40 million every day in lost revenue.

Beyond alleviating this supply glut, Enbridge officials argue that Northern Gateway would be a boon for Canada’s economy—with an estimated $4.3 billion in labour-related income during construction, $2.6 billion in tax revenues and over one thousand long-term jobs across the country, as well as a major economic boost for First Nations along the route. “When you combine our total commitment to Aboriginal communities—in terms of equity, skill development and training and other opportunities—it represents $1 billion,” says Northern Gateway communications manager Ivan Giesbrecht. “Our equity offering alone will generate approximately $280 million to these communities over the next thirty years.”

Northern Gateway would cross the territories of some fifty First Nations holding constitutionally protected rights that the government must respect—an especially contentious issue in BC, since, unlike much of the rest of Canada, ownership of most of the province’s land and resources changed hands without treaties ever being signed. That potential legal landmine was surely top-of-mind when the Ministry of Natural Resources appointed Douglas Eyford as Canada’s special envoy on west coast energy issues in March 2013. 

Asked to identify ways to increase First Nations participation in major resource projects in the west, he travelled extensively throughout Aboriginal communities to get a first-hand point of view.

“Mr. Eyford’s task was to help the federal government understand First Nations’ perspectives,” says Art Sterritt, executive director of Coastal First Nations, an alliance of Aboriginal communities throughout BC’s northwest, including Haida Gwaii. “Why were our communities— some tackling high unemployment—not universally embracing these projects? How had the review of the proposed Northern Gateway oil pipeline become so adversarial?” In his fifty-four page report sent directly to the prime minister, Eyford noted that while Aboriginal leaders are aware that resource developments could improve economic conditions in their communities, they are generally only supportive if they believe the projects will be safe and environmentally sustainable

MANY FIRST NATIONS LEADERS, including Sterritt and Lantin, argue the pipeline would encourage increased development in the tar sands and drastic increases in carbon emissions causing climate change. They also stress that Enbridge hasn’t properly assessed the potential for major spills of diluted bitumen in the deep waters along the BC coastline, a concern that has been expressed by many scientists as well. In the 2010 Kalamazoo oil spill near Marshall, Michigan, a pipeline rupture sent over 3 million litres of dilbit from Alberta’s tar sands into the river system, and heavy rains carried the toxic substance over 56 kilometres downstream. More than four years after the spill, Enbridge is still dredging parts of the river to remove oil that has mixed with sediment on the bottom.

Enbridge representatives downplay the potential risks of an oil spill from tankers leaving Kitimat. “BC’s marine transportation industry is already very safe,” Giesbrecht says. “Especially the oil tanker industry, which has one of the best safety records in the world.” And Enbridge is creating new world-class marine safety protocols, he says, which will include ship inspections, improved navigation systems and double-hulled tankers.

Those arguments have yet to convince Lantin and many other Aboriginal leaders, who question the legitimacy of the decision-making process itself. The people of Haida Gwaii would be burdened with catastrophic costs from potential oil spills, says Lantin, so they should be able to decide whether oil tankers travel through these waters.

Art Sterrit says Eyford’s attempt to sketch a way forward was welcomed by many First Nations, but in the case of Northern Gateway, it is simply too late. He singles the Enbridge project out as an example of how not to proceed: minimal engagement with Aboriginal communities in the early stages and then a hurried effort to get them on board later on. First Nations must be involved before major planning begins, Sterritt argues, and that engagement must be sustained formally in government-to-government relationships based on recognition of Aboriginal rights and title. 

ABORIGINAL TITLE is a legal concept that has never been well understood in Canada, says lawyer Louise Mandell, a specialist in aboriginal law. The Supreme Court of Canada first recognized Aboriginal title in the 1973 Calder decision, a ruling based on the Nisga’a land claim in northwestern BC. Named after Frank Arthur Calder, a Nisga’a elder and politician who brought the case to court, the Calder ruling made it clear that these rights to the land pre-dated European colonization.

In 1997, Aboriginal title was affirmed more definitively in the Delgamuukw decision, which ruled on another land claim filed by Gitxsan and Wet’suwet’en First Nations, covering 58,000 square kilometres of land in BC’s northern interior. (The name was derived from Chief Delgamuukw, a hereditary leader of the Gitxsan people and one of the key Aboriginal leaders in the case.)

Delgamuukw did not resolve the land dispute in question, but the ground-breaking legal case set out the criteria for how Aboriginal title could be proved in future claims. The judges ruled that in addition to First Nations’ constitutionally protected rights to use the land—to fish and hunt, for instance—they also possessed a communal right to the land itself. “Aboriginal title is an inherent right; it’s not dependent on government recognition,” Mandell says. The ruling stated that no activities should interfere with the ability of future generations to exercise their rights and traditional ways, and that Canadian governments must consult with First Nations whenever land-use decisions affect their rights or title.

For the Haida, the legal implications of Delgamuukw were borne out in 1999, when the BC government renewed another license to harvest trees without consulting them—this time transferring tenure to Weyerhaeuser, a large American forestry company. As they had in the eighties, the CHN challenged the province in court, but this time they won the case. The court ruled that because of the Haida’s strong case for Aboriginal title, the province and Weyerhaeuser were obligated to consult with the Haida Nation before making any major land-use decisions in the region.

Although Delgamuukw clearly defined Aboriginal title in modern Canada, no court had ever, at that time, granted title to any First Nation. In 2002, the CHN submitted its Statement of Claim to the Supreme Court of British Columbia, aiming to finally establish Haida title in a court of law. It’s the same legal challenge that the Tsilhqot’in Nation won last June, in a unanimous Supreme Court decision that granted them title to a large tract of land southwest of Williams Lake, BC— the first time Aboriginal title has been granted in Canadian history. Although the Haida Nation is hoping to establish legal title to a much larger area (the island of Haida Gwaii is more than 10,000 square kilometres) the Tsilhqot’in case sets a very important legal precedent.

IN LATE FEBRUARY 2012, residents shook off the damp morning cold and gathered in the warmth of the village community hall in Old Massett, where new and old totem poles dot the island’s northern shore and traditional carvers seem to outnumber everyone else. The first of a series of public hearings held by the Enbridge Joint Review Panel (JRP), an independent body appointed by the Minister of the Environment and the National Energy Board to assess the environmental effects of the pipeline, it was a chance for the people of Haida Gwaii to air their objections to Northern Gateway.

Former CHN president Guujaaw, a highly respected Haida leader and a driving force in the Athlii Gwaii blockade thirty years before, was one of the first to testify. “The witnesses and myself are here to try to make you understand how a culture is born, how it’s developed ... Our culture is about how close we can be to the earth. And that’s where our songs come from, our language, our dance, all of our crests and all of the material culture is directly from the earth.” Guujaaw recalled sixty years of heavy industrial development and the effect on the islands. “We’ve seen those things unleashing the lack of respect for other life: for the salmon-bearing streams, for the continuance of fish stocks and all the things that we held dear to us.” For Guujaaw and others who testified, it’s not simply a matter of weighing economic pros and environmental cons, but a struggle to protect Haida culture itself, which is wholly dependent on sustaining the island’s healthy ecosystems.

After more than a thousand people on Haida Gwaii had expressed their objections to the Northern Gateway project through eight separate public hearings, Peter Lantin submitted the Haida Nation’s final arguments to the Enbridge JRP in June 2013. His objective, he said, was to “humanize the process,” to bring the focus back to the people who would be most affected.

Lantin’s argument focused, primarily, on the Haida’s lengthy fight to establish title to the island. He described the project’s review process as “flawed” because it did not recognize the Haida’s strong case for Aboriginal title.

The results of the 1999 Weyerhaeuser legal challenge, along with the positive Supreme Court ruling in the Tsilhqot’in decision, give Haida leaders strong reason to believe their twelve-year-old case is on solid legal footing. To strengthen the claim, the Haida Nation can point to Haida Gwaii’s distinct boundaries, and the extensive archaeological evidence, such as old poles and other cultural artifacts, which prove the island has been the Haida’s homeland for thousands of years. Indeed, compared to many other land claims throughout BC and Canada, the Haida’s case is uniquely advanced.

For Lantin, the fact that the Haida have already proven their “good faith” in working collaboratively with government adds even more justification for their case for title. “[We] are more than willing to work hand-in-hand with the Crown to begin reconciling our interests, and to tackle the larger, strategic-level decisions to avoid conflict at the operational level,” he wrote in his final arguments to the JRP. “As reconciliation proceeds, our strong case cannot be ignored ... It is in the mutual interests of the Crown and the Haida Nation to pursue reconciliation rather than conflict.”

Those final arguments—along with similar objections from other communities along BC’s northwest coast—did not sway the panel or the federal government, which argued in its final decision that the Northern Gateway project is in Canada’s national interest. 

The government’s conditional approval drew immediate ire from Aboriginal leaders, and the onset, just one month later, of about a dozen separate court cases challenging the legality of the decision—including a new challenge from the Haida Nation, filed to the Federal Court of Appeal. It could amount to a legal nightmare for Enbridge, tying up Northern Gateway in multiple court battles for years to come.

BACK IN SKIDEGATE, I have a sandwich in the parking lot of the Haida Heritage Centre—a beautiful building on the outskirts of town. A raven has tracked me down here, walking upright and chattering as he follows me to the main entrance, looking for scraps. 

In the centre’s museum, I view old canoes and carved poles on display, and Haida masks and tools from years gone by. The rest of the facility is bustling with activity, and at one end, past a series of classrooms where Haida culture is taught, there’s a covered outdoor space where young Haida artists and carvers are working. In this shed, a new pole was carved to commemorate the twentieth anniversary of the Gwaii Haanas Agreement.

In August 2013, people from all over Haida Gwaii, along with Parks Canada and other government representatives, got together to heave the 42-foot Gwaii Haanas Legacy Pole into place, where it now overlooks Windy Bay on Lyell Island. Lead carver Jaalen Edenshaw, Guujaaw’s son, chose the Legacy Pole’s design to depict the interconnections between “land, sea and people,” a theme at the heart of Gwaii Haanas. The pole features an eagle at the top and a sculpin, a bottom-dwelling fish, at its base to represent the agreement’s goal to protect Gwaii Haanas from sea floor to mountaintop. Among other symbols, the pole depicts five people standing together, in honour of those in the Athlii Gwaii blockade.

The first pole to be raised on Gwaii Haanas in over 130 years, it tells the story of how Canada and the Haida Nation came together to protect the region. “Consider the rare occurrence,” Guujaaw tells me later, “where the outcome of a conflict can be celebrated by all sides.”