Moving Forward Together: Haida Title to Haida Gwaii by Consent
Nigel Baker-Grenier, and Veronica Stanford - November 19, 2025
Application for Aboriginal Title by Consent
On September 5, 2025, the BC Supreme Court heard an application by the Haida Nation that proceeded with the consent of the governments of Canada and BC (the “Consent Order”), to reflect recent agreements recognizing Haida title to Haida Gwaii in the litigation seeking Haida title to Haida Gwaii (the “Haida Title Case”) ¹ .
The Court applied the test for declaratory relief, a discretionary remedy which requires that:
1. The Court has jurisdiction to hear the issue;
2. The dispute before the Court is real and not theoretical;
3. The party seeking declaratory relief has a genuine interest in its resolution; and
4. The respondent(s) has an interest in opposing the declaration sought.²
The first three criteria of the test were easily met. The Court obviously had jurisdiction to hear the matter, there was no question that the dispute over who holds Title to Haida Gwaii is real and not theoretical, and the Haida Nation clearly has an interest in resolving its Aboriginal Title. The only criteria which the Court had to pause and reflect on was the fourth point. Because Canada and BC had recognized Haida Title through negotiated agreements ³ , had either passed or were in the process of passing legislation recognizing Haida Title ⁴ , and had consented to the order, they no longer had an interest in opposing it. The Court stated, “In these circumstances, it is arguable that the declaration sought is unnecessary and of no practical utility.” ⁵
However, Justice Giaschi acknowledged that declaratory relief takes on a unique tenor in the context of Aboriginal Title and Rights, because it is the means by which a court can promote reconciliation to restore the nation-to-nation relationship. ⁶ He quoted the Supreme Court of Canada in Shot Both Sides, which said that “reconciliation can be fostered by declaratory relief,” “declaratory relief can assist in providing a clear statement on the legal rights of Indigenous parties, the duties placed on the Crown, and the Crown’s conduct in relation to those sacred promises,” and “clarity on these rights, duties, and conduct can help to uphold the honour of the Crown, guide the parties in the reconciliation process … and assist with efforts to restore the nation to nation relationship.” ⁷ Although the circumstances in Shot Both Sides were different, these statements are relevant to the Haida Title Case and the Consent Order would, “have practical utility in that they recognize and promote reconciliation and uphold the honour of the Crown.” ⁸
The Court added, “I am satisfied there is utility to the declaration sought in that it can inform the remaining issues to be decided in this litigation. Those issues include damages for alleged infringement or interference with Aboriginal title and the extent, if any, of the rights of the Haida Nation to fishing and other marine related resources.” ⁹
The Order
Justice Giaschi issued a declaration that:
The Haida Nation has Aboriginal Title, recognized and affirmed under s. 35(1) of the Constitution Act, 1982, to the terrestrial areas of Haida Gwaii including any submerged lands underlying freshwater or in the intertidal area between the high and low water marks, extending below the surface, and for greater certainty does not include the water column. This represents the common area that both Canada and BC had recognized Haida Title to in the Rising Tide Agreement and Big Tide Agreement.
This represents the common area that both Canada and BC had recognized Haida Title to in the Rising Tide Agreement and Big Tide Agreement. Another term of Justice Giaschi’s order was that the Haida Nation, Canada, and British Columbia will give effect to Haida Title in accordance with the conditions of the Rising Tide Agreement and the Big Tide Agreement. This includes agreement that the Haida Nation, BC and Canada will reconcile their respective laws, jurisdictions, and titles during a transition period. Additionally, the Court suspended its declaration of Haida Title to Gwaii Haanas National Park Reserve and Haida Heritage Site, Lands with Federal Interests (as defined in the Big Tide Agreement), and Indian reserves on Haida Gwaii for a period of two years, to give Canada time to make legislative amendments.
Impact of the Consent Order
This ends a major part of the Haida Title Case, resolving Haida Title to the terrestrial and foreshore areas of Haida Gwaii by negotiated agreements and the Consent Order. The Haida Nation has charted a unique path to reconciliation, through negotiated agreements followed by a consent order. In doing so, it has circumvented the challenges posed by Aboriginal Title litigation and modern treaties in BC, achieving recognition of Aboriginal Title throughout terrestrial Haida Gwaii without surrendering its constitutional rights. Gaagwiis, President of the Haida Nation, reflected on the significance of the consent order:
Today is a good day for the Haida Nation, British Columbia and Canada. Citizens of each government can be proud of how all parties came together to demonstrate gud ad t’alang hlG̲ang.gulx̲a tll yahda • tll yá’adee G̱ii gud ahl t’álang hlG̱ángulaang (good people working together to make things right) to advance reconciliation for all. Haawa to our ancestors and all those who came before us to help lead to achieving this long-awaited declaration of title to the land of Haida Gwaii. ¹⁰
There is a Haida saying that is “gam tlagw tlagaay Ga ga GaagiixanaGangaGan” meaning that “there was no land lying vacant.” This refers to the comprehensive and deep relationship between the Haida Nation and Haida Gwaii, grounded in our language, oral history, and laws. The Consent Order recognizes within Canadian law to what the Haida have always known – that they have inherent Title to Haida Gwaii.
The Haida Nation has amended its pleadings to remove a declaration of Aboriginal Title to the terrestrial and foreshore areas of Haida Gwaii from the relief south. However, the Haida Title Case is proceeding to trial on other issues, including Aboriginal Rights, Aboriginal Title to Haida Marine Territory, and damages arising from Crown infringements of Haida Title and Rights.
Private Property and the Consent Order
A significant portion of media and political coverage of the Consent Order has focused on the relationship between the Consent Order and fee simple property ownership. Several news stories have covered comments by John Rustad, leader of the B.C. Conservatives, who has tied the Consent Order to “instability and uncertainty” regarding the state of private property in British Columbia. ¹¹ Rustad has also said that “Indigenous rights and private property rights cannot coexist.” ¹² Rustad has argued that because the Canadian constitution protects Aboriginal rights but there is no similar constitutional provision for property rights, a future government of the Haida Nation could simply go back on its commitment to honour fee simple private property interests on Haida Gwaii. He said that “I suspect that if a future Haida Nation decide to back away from that, claiming their Indigenous rights under the constitution override private property rights, I suspect they would win that case.” ¹³
As discussed above, the Consent Order explicitly states that the Haida Nation, Canada, and British Columbia will give effect to Haida Title in accordance with the conditions of the Rising Tide Agreement and the Big Tide Agreement. Both the Rising Tide and Big Tide Agreement contain provisions that the Haida Nation consents to and will honour fee simple interests. This means that fee simple private property interests are protected by the Consent Order. The Consent Order is equally as binding on the Haida Nation as it is on British Columbia, and Canada on their future conduct. The Consent Order is an example of how fee simple private property interests can be reconciled with Haida Title by creating a just solution that simultaneously implements Haida rights while creating certainty for all residents of Haida Gwaii.
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¹ Council of the Haida Nation v. HMTK BC & AGC, Vancouver SC no. L020662
² Shot Both Sides v. Canada, 2024 SCC 12, para. 67.
³ the Gaayhllxid / Gíihlagalgang “Rising Tide” Haida Title Lands Agreement and the Chiix̲uujin / Chaaw K̲aawgaa “Big Tide (Low Water)” Haida Title Lands Agreement
⁴ Haida Nation Recognition Amendment Act, S.B.C. 2024. c. 23
⁵ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 7.
⁶ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 8.
⁷ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 9.
⁸ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 10.
⁹ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 11.
