Iihldaa: Digital Transformation in the Haida Title Case


Iihldaa: Digital Transformation in the Haida Title Case

Iihldaa is the Haida word for transformation. Iihldaa is prominent in Haida art, laws, oral histories, and in the digital era, Aboriginal Rights litigation. In the Haida worldview, Haida Gwaii is a living landscape of SGaana kii dads (Supernatural Beings). The process of iihldaa reveals the inter-connectedness between human beings, the natural and SGaana kii dads. Iihldaa is a process with many intermediate states; applying this perspective to litigation incrementally transforms it.

The Council of the Haida Nation (“CHN”) filed a claim in 2002, asserting Aboriginal rights and title to the lands and waters of Haida Gwaii (the “Haida Title Case”). Until Canada fully respects the Truth and Reconciliation Commission’s Calls to Action 47, and Article 26 of UNDRIP, the Haida Nation must amass evidence to prove exclusive use and occupation of Haida Gwaii and the surrounding ocean. In 2002, CHN directed legal counsel to prepare its evidence for an electronic trial (“e-trial”). Since then, counsel have worked with CHN to digitize and disclose historical documents, including oral histories, utilizing Artificial Intelligence software (“AI”). In 2021, CHN will complete electronic document (“eDocument”) discovery (“eDiscovery”) using even more powerful AI for the collection and review of millions of eDocuments. AI helps to reduce the number of duplicates, near-duplicates, and not-relevant documents; prioritize the most relevant documents; and increase quality control of the discovery process. Today’s AI learns simultaneously with the user, ranking and assessing documents based on on-going legal review, and prioritizing and suggesting documents that fit within the lawyers’ evolving criteria for relevancy. AI saves time and is the most efficient means of eDiscovery. In fact, AI is arguably the only way to sift through the Haida Nation’s massive evidentiary record.

In addition, although a trial date has not yet been set, the parties to the litigation are finalizing recommendations for an e-trial. Should the trial judge and Court agree, technology will replace all or some of the traditional paper processes. E-trials make it easier to store and locate documents and are environmentally friendly. CHN could not sacrifice the old-growth forests that it has worked so hard to protect in other litigation, Haida Nation v. BC (Minister of Forests) 2004 SCC 74, for paper evidence and legal argument.

While Aboriginal rights litigation must necessarily look back in history, there is no reason why legal counsel must remain in the past. Yet, currently, only four trials in BC are proceeding via some degree of e-trial, three of which are Aboriginal rights cases. This is likely to change as society’s increasing use of technology permeates into the legal system.

The CHN is no stranger to technology. Haida Elders have employed SmartBoards to tender evidence in depositions, and adapted Google Earth for the display of place names and their associated historical record and as a platform for digital travels throughout Haida Gwaii. Recently, Haida Elders embraced iPads and Zoom to continue their efforts to preserve the endangered Haida language during the COVID-19 pandemic.

This serigraph by acclaimed Haida artist Robert Davidson, illustrates an eagle in the process of iihldaa, revealing its true self. Similarly, the Haida Title Case, through its use of AI and a full e-trial, is among a few cases that could pave the way for an iihldaa of Indigenous litigation. And, more importantly for the Haida Nation, the digital iihldaa will ultimately increase Haida citizens’ access to an unprecedented breadth of Haida knowledge. This iihldaa will help reveal the authentic Haida Nation — before residential schools and colonization impacted knowledge — thereby contributing to the further revitalization of Haida culture and laws.