Land Claims and Final Agreements. A Long and Winding Road.

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It was the practice of Britain to extinguish the proprietary rights of the local Indigenous peoples prior to giving land title to new settlers. On Vancouver Island, this became the task of Hudson’s Bay Company (HBC) Chief Factor James Douglas who then negotiated a series of 14 historic agreements between 1850 and 1854 on Vancouver Island with the Esquimalt, Songhees, Sc’ianew (Becher Bay), T’Sou-ke, Tsawout, Tsartlip, Pauqhachin, Tseycum, Snuneymuxw, Kwakiutl, Malahat, Nanoose, Namgis, K’ómoks, and Gwa’sala-’Nakwaxda’xw. In exchange for trade goods like blankets, these nations agreed to share most of their territories for settlement while retaining specific rights to their village sites, fields, and traditional hunting and fishing.

Now referred to as the Douglas Treaties these agreements are today relied on by the courts to uphold Aboriginal hunting, gathering and fishing rights. Each of the 14 written “deeds of conveyance” contains nearly identical terms. Under these documents, First Nations:

• Surrendered their claim to specific tracts of land to the Crown.

• Retained ownership of their village sites and enclosed fields.

• Were granted the right to hunt over unoccupied lands and “carry on fisheries as formerly”.

However, as is often repeated in Canadian history, the oral histories from Indigenous elders indicate that the treaty documents do not reflect what was actually agreed upon.

The First Nations involved view the agreements as a framework for sharing the land and its resources—and securing mutual peace—rather than a permanent surrender of title.

At the time the Douglas Treaties were made, James Douglas had the indigenous leaders sign blank papers and had the text of the Treaties written in after the fact (except in the case of the Saalequun Treaty, which was left blank). The language later written in by James Douglas suggests the signatories sold their land to the Crown completely and forever. While Indigenous Peoples have disputed this language, the courts have continued to describe the Douglas Treaties as surrendering part of the territories of the signatories.

Another interesting fact is that the Douglas Treaties, along with Treaty 8, which was signed in 1899 between the federal government and Indigenous peoples and included the northeast area of the province, are the only historic treaties in British Columbia. Thus, the majority of the province was not subject to any treaty understandings (or therefore land surrenders). Immediately prior to Confederation and in the subsequent years following British Columbia’s becoming part of the fledgling nation of Canada, the province adopted the view that Aboriginal Title had been extinguished and therefore there was no need to reach any further treaty understandings with any indigenous people.

Following Confederation, the federal government focused on developing the railway as a means of linking B.C. to the rest of Canada. The railway also was the foundation for driving settlement in what later became Alberta, and Saskatchewan. Notwithstanding the provincial authorities in B.C. saw no need to negotiate with First Nations and merely assumed title over the land needed for the railways.

In 1887, a delegation of Nisga’a and Tsimshian chiefs traveled to Victoria, British Columbia, to confront provincial government officials about the encroachment of settlers, miners, and loggers on their traditional territories. This event marked a significant, early protest in what became known as the “Indian Land Question” in British Columbia. When the chiefs tried to visit the then premier, William Smithe the legislature, they were turned away. They later met with Smithe at his home. Despite their persistence and the legitimacy of their claims, the government refused to recognize their title to their traditional lands.

Although the delegation was dismissed in 1887, the effort fostered closer ties between the First Nations in B.C. and led to the establishment of the first Nisga’a Land Committee in 1890.

The government did however appoint a commission of enquiry (Commission of Enquiry into the Conditions of the Indians of the Northwest Coast). This Commission’s work included visiting the territories in dispute as part if the “Indian Land Question”, but Premier Smithe instructed them to ignore claims of Indian title and to enforce the idea that the land was solely Crown land. This flew in the face of the Royal Proclamation (1763) but remained government policy in B.C. for decades to come.

One of the Chiefs Charles Russ had this to say: “We took the Queen’s flag and laws to honour them. We never thought when we did that that she was taking the land away from us.” The Nisga’a were willing to give up most of their land, so long as what remained - together with a limited right to self-government - was confirmed by treaty. “We want the words and hands of the chiefs on both sides, Indian and Government, to make a promise on paper – a strong promise - that will be not only for us, but for our children and forever.”1 At that time, the government’s response was “No”!

The Nisga’a Land Committee, finding no success with local BC or federal governments, submitted a petition to the British Privy Council in London in 1913, directly appealing to the Imperial authorities. They were again not successful.

In 1927 the Indian Act was amended to prohibit First Nations’ groups from raising money to hire lawyers or more specifically hiring lawyers to represent them in land claims cases. This effectively ended any hope for intervention from the Privy Council and drove the land claims issues in B.C. underground. However, as Canadians have come to appreciate the First Nations have resilience and they take the long view with respect to asserting their rights. In 1960, Secwepemc leader George Manuel and Nisga’a leader Frank Calder presented briefs to the Joint Committee for the Review of Indian Affairs Policy demanding recognition of Aboriginal Title and compensation for lost lands. The Committee later recommended the establishment of an Indian Claims Commission to handle land claims, (which is established in 1969).

In the meantime, the Nisga’a had decided, following amendments to the Indian Act [1951] that gave them access to legal relief, to take their land claim to court in 1968. The case winds its way through the system and ends up before the Supreme Court of Canada who render their decision in 1973. In Calder v. the Attorney General of British Columbia the Supreme Court of Canada recognized Aboriginal title and affirms the Nisga’a held title to their land before the province was formed. However, the court split on the question as to whether or not that title had been extinguished following the founding of the province. In response Prime Minister Pierre Elliot Trudeau establishes a new federal policy to negotiate land claims. This included both Specific Claims (pertaining to reserve lands) and Comprehensive Claims (pertaining to land under Aboriginal Title). In B.C. this has led to the negotiation of some modern treaties including the following:

• Nisga’a Final Agreement – Effective May 11, 2000

• Tsawwassen First Nation Final Agreement – Effective April 3, 2009

• Maa-nulth First Nations Final Agreement – Effective April 1, 2011 - Includes five independent Indigenous governments: Huu-ay-aht First Nations, Toquaht Nation, Uchucklesaht Tribe Government, Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations and Yuułuʔiłʔath Government (Ucluelet First Nation)

• Tla’amin Final Agreement – Effective April 5, 2016

This brief history of B.C. and the province’s relationship with the Indigenous people shows how the issue of land claims has been a controversy for well over a century and is not something that has somehow just emerged in recent years. The Indigenous claims have been around for a long time and it demonstrates the resilience in not letting go of the sacred attachment to the land. The denial of Aboriginal Title in B.C. was not based on legal theory but rather was caused by simply ignoring the realities of the Royal Proclamation and the true nature of Aboriginal Title, because it was inconvenient. The history in B.C. while unique is also demonstrative of the increasing complexity of the relationship as it has evolved.

While government policy at both the federal and provincial levels is constantly shifting Trudeau (the elder) had the right instinct in trying to move disputes out of the courts and into a forum of treaty negotiations. Today other modern treaties are being negotiated throughout Canada and are similarly complicated, and we are making progress towards final agreements. This is a key step in not only reconciliation but also improves Indigenous communities ability to contribute to Canadian society and the economy in meaningful, positive ways.