OKANAGAN BAND
ABORIGINAL TITLE AND RIGHTS
PUBLIC INFORMATION FORUM
April 28, 2004
Vernon Performing Arts Centre
Brief History of Crown/Aboriginal Relations in British Columbia
Allan Donovan, Donovan & Company
SPEAKING NOTES
I INTRODUCTION
European presence in what is now British Columbia is a relatively recent phenomenon. British and Spanish explorers made first contact on the communities of the coast of British Columbia in the 1790's. An active fur trade soon developed – first with Coastal First Nations and later between Europeans and First Nations in the Interior. The relationship based on trade was a more or less equal one. Aboriginal Nations could, and did, rely on competition between trading companies to extract a good return for their product.
By 1846 England and the United States resolved their competing imperial claims to this land by way of the Treaty of Oregon. This ushered in a period of colonial government and settlement. Ultimately the process led to the Colony of British Columbia joining Confederation in 1871 and the development over the next 135 years of the province as we know it today.
The trouble is this. Aboriginal Nations were already here in 1846. They had been here for untold millenia. They had their own governments, their own land holding systems, and their own distinctive cultures and religions. The colonization of British Columbia was at best oblivious to and at worst antagonistic towards the legal and moral rights of the aboriginal owners of this land.
It is impossible in a short address to cover the wide range of issues between the Crown and Aboriginal Peoples in this province. These include:
- The iron hand of the federal government which jailed Indian peoples for participating in traditional ceremonies such as the potlatch.
- The legislative straightjacket called the Indian Act, as imposed by the Indian Agent, regulated the most minute aspects of the lives of Aboriginal People.
- The government and church led assault on aboriginal peoples, their culture, their language and their dignity through the residential schools process. The residential schools policy saw children taken from their parents and sent to schools often long distances from their home where they were beaten for speaking their own language and often subjected physical and sexual abuse.
- The fundamental infringement of aboriginal hunting, fishing and gathering rights by government regulation, settlement, and environmental damage.
Each of these topics would merit a separate forum. This evening I am going to focus on a different area of Crown/aboriginal relationships that goes to the very underpinnings of the province of British Columbia – the aboriginal land question title.
British law had clearly laid out a series of obligations owed to the aboriginal owners of colonized territory. The starting point was the recognition of aboriginal title. Treaties were negotiated with First Nations. These treaties set apart certain areas for the exclusive use of the Aboriginal Nation. Aboriginal hunting, fishing, trapping and other rights were guaranteed in perpetuity. Monetary and other compensation was provided. In return the Aboriginal Nations normally agreed to surrender their aboriginal title to the balance of the territory and to allow for the peaceful use and occupation of these lands by the settlers.
British Columbia was the odd man out in Confederation. It didn't follow this standard policy. The lion's share of British Columbia remains unceded aboriginal territory and therefore, the subject of unresolved aboriginal title claims.
II THE DOUGLAS ERA
James Douglas was the first governor of the Colony of Vancouver Island and later the Colony of British Columbia. His approach to treaty negotiations was consistent with the British imperial policy of the day. He recognized that aboriginal peoples had title to their territory and proceeded to negotiate treaties. The problem facing Douglas was that the new colony had very limited revenues. Between 1850 and 1854 Douglas was able to negotiate 14 treaties covering certain lands on southern Vancouver Island.
Douglas, recognizing the monetary limits he faced, approached the Imperial Government to obtain further revenues to allow for the treaty process to continue. He was turned down. The Imperial Government advised that colonies were expected to cover their own expenses. This put an end to British Columbia's first treaty negotiation process.
After the conclusion of the treaty process Douglas sought to protect the interests and legal rights of aboriginal peoples by setting aside large tracts of land as reserves. He described his representations made to the Okanagan people as follows:
I made them clearly understand that Her Majesty's Government felt deeply interested in their welfare, and had sent instructions that they should be treated in all respects as Her Majesty's other subjects; and that the local Magistrates would attend to their complaints, and guard them from wrong ...
I also explained to them that the Magistrates had instructions to stake out, and reserve for their use and benefit, all their occupied village sites and cultivated fields, and as much land in the vicinity of each as they could till, or was required for their support; and that they might freely exercise and enjoy the rights of fishing the Lakes and Rivers, and of hunting over all unoccupied Crown lands in the Colony; and that on their becoming registered Free Miners, they might dig and search for Gold, and hold minig claims on the same terms precisely as other miners: in short, I strove to make them conscious that they were recognized members of the Commonwealth.
Approximately nine months after this auspicious meeting, in June 1861, W.G. Cox laid out the Colonial Reserve towards the northern end of Okanagan Lake, including a substantial segment of what is now the city of Vernon.
In 1864 Governor Douglas resigned and was replaced by Frederick Seymour. Seymour relied heavily in the implementation of land policy on Joseph Trutch, his Chief Commissioner of Lands and Works. Trutch is widely viewed as possibly the most malevolent influence in aboriginal policy in the history of British Columbia. Trutch quickly put an end to Douglas's policy of setting apart large segments of good land for reserves. He refused to recognize aboriginal title and began the process of clawing back the reserves that had already been allotted by Douglas.
Rumours of the new colonial policy created a significant outcry amongst the aboriginal population and resulted in 3,500 aboriginal people from all around the province gather at New Westminster on the occasion of the Queen's birthday. They petitioned the new Governor to leave their reserves alone. In response to this petition, Governor Seymour responded:
My Indian Friends:
I am glad to see you, and to find that so many have come down to show their loyalty to Our Queen. You are right. The Queen has a good heart for the good Indians. I shall be good to them but harsh and severe to the bad ones. I will punish them as they deserve.
...
As you say there is plenty of land here for white men and Indians. You shall not be disturbed in your reserves. I shall protect you both from bad whites and from bad Indians.
I am glad that you wish to be civilized and raised to an equality with the white men. Cultivate your lands, send your children to school, listen to what the clergymen tell you and believe in it.
I am a stranger here and don't yet speak your language; but I am as good a friend to you in heart as my predecessor.
Had the promise to leave the Douglas Reserves been honoured the history of British Columbia might have been significantly altered. Sadly, it was not.
In the years to follow, under the guidance of Trutch, the Colony of British Columbia broke this promise again and again. The new colonial administration purported to cut back reserve after reserve that had been set apart by the Douglas administration. While there were those within the colonial government who felt that the Aboriginal Nations should be compensated for the land carved from their reserves, the harsher majority view won the day. In the end, the new colonial administration simply denied the validity of the earlier colonial reserves and purported to issue new smaller and less valuable reserves in their place.
The pattern played itself out according to script in the Okanagan. The colonial reserve was carved back to a fraction of its earlier size excluding the most valuable segments. These cut off lands were then open to preemption – a situation the local settlers were happy to take advantage of.
III CONFEDERATION
British Columbia joined Confederation in 1871. The rules governing the creation of this new province were set out in a document called the Terms of Union. Article 13 of the Terms of Union, which many suspect was drafted by Trutch, was a deceptive provision. It provided for a continued setting apart of reserve lands that would be guided by a "policy as liberal as that hitherto pursued by the British Columbia government". Interesting wording given that the revised colonial policy had been anything but liberal.
IV THE JOINT RESERVE COMMISSION (1876 – 1878)
After extensive debate between the province and Canada over the extent of acreage that should be allotted as reserves the two governments struck up the Joint Reserve Commission (with one representative from each government and a neutral chair). The Commission had no authority to make treaties with Aboriginal Nations. They had no authority to address issue of aboriginal title. Rather, they were instructed to set apart areas of land as Indian reserves for particular Aboriginal Nations. These reserves were to be held in trust by Canada for the Aboriginal Nations in question.
In the Okanagan area the Joint Reserve Commission had to move quickly. Tribes of the Shuswap and Okanagan Nations had tired of awaiting the resolution of their land grievances and gathered at a Great Council at the Head of Okanagan Lake to debate whether to go to war to drive the whites from the Interior. Word of the Council caused a near panic among the sparse population of the settlers who appealed to Victoria for help. The Reserve Commission was dispatched on an expedited basis to the Interior but found villages all but deserted. The bulk of the people were attending the War Council.
The Commissioners formulated a strategy of dividing aboriginal groups and structuring reserve allotment decisions so as to break up the Confederation that had developed. Under this policy of seeking what Reserve Commissioner Sproat called "a wedge of division", reserves were allotted to the various Okanagan and Shuswap tribes in a way that would undermine the growing aboriginal unity.
In this area the Okanagan Band was allotted nine reserves totaling over 50,000 acres. This included a reserve of over 25,000 known as the commonage reserve or Indian Reserve No. 9. Just over a decade later, however, that reserve was to be taken away by the provincial and federal governments without either consultation or compensation with the Okanagan Band.
History had repeated itself. The reserve creation process was never about making Treaties and addressing aboriginal title. British Columbia denied that aboriginal title existed so it could hardly negotiate its extinguishment. Instead the reserve creation process was provided a land base to the Indian population by way of setting apart a portion of the Traditional Territory as reserve land. In the case of the Okanagan the word of the Queen was dishonoured not once, but twice, as Crown officials cut back Okanagan reserves both before and after Confederation.
V SUBSEQUENT RESERVE COMMISSIONS (1878 – 1907)
After the dissolution of the Joint Reserve Commission, Canada and British Columbia continued the process of allotting reserves to Aboriginal Nations through an Indian Reserve Commission. The process continued to ignore the issue of aboriginal title and focused instead on the provision of certain parcels of land to aboriginal communities.
The process was hapharzard at best. At one point a Reserve Commissioner was fired because, in the view of his employer, he had been marking out Indian reserves without bothering to attend at the place. At other times the Reserve Commissioner would visit at a time when most of the aboriginal community was away fishing or hunting. As a result the reserve allotments were small and inadequate. Very often the best areas of land were held back for non-native settlement instead of included in the reserve allotment process.
Not surprisingly the process provided no resolution of aboriginal title. Rather it unilaterally provided First Nations with a small segment of their Territory leaving the balance open to alienation and third party use.
VI THE MCKENNA MCBRIDE COMMISSION
The issue of the size and location of Indian reserves in British Columbia remained a matter of dispute between Canada and British Columbia. British Columbia consistently took the position that the reserves allotted were too large and could be cut back. Canada noted that reserves hadn't even been allotted to many First Nations within the province and were unwilling to see reserves unilaterally cutback. The matter was put to a typically Canadian solution – a Royal Commission. The McKenna McBride Commission was established to review the reserve holdings of all First Nations in British Columbia to recommend the creation of new reserves, or the cutoff or alteration of existing reserves.
The process generated a great deal of confusion throughout the aboriginal community. Many viewed this as the Crown finally coming to address the issues of aboriginal title. They were disappointed to find that that was not the case at all. The following exchange between the Haisla Nation (the Kitamaat Indian Band) and the Reserve Commission was typical:
MR. COMMISSIONER SHAW briefly explained to the Indians the scope and purpose of the Commission.
GEORGE ROBINSON and PHILIP WILLIAMS were jointly sworn as Interpreters.
CHIEF JOHN BOLTON said: - "We are troubled about our land. It is not straight to us somehow. It is ours because here we were born and our fathers and forefathers had it before us. We want you to understand about it. We want to know how the Government got that land outside of the Reserve.
THE CHAIRMAN: We have not anything to do with the land outside of the Reserves. We have no authority to settle that question at all. It is no use bringing it before us. We are appointed only to settle matters affecting the Reserves. Of course you will understand from what Mr. Shaw stated a moment ago, that where it is desirable that the Indians should have more land attached to their reserves because they have not enough, then we can, if we deem it necessary, recommend that those reserves be made larger. That is all the power we have with respect to land outside the Reserves.
CHIEF JOHN BOLTON: We are troubled about how the Government has gone and sold the land outside our reserves. We know it is our land and not the Government's, and they have gone and sold it and done what they liked with it. There is lots of land outside the Reserves where we had houses and villages and camping places and all these have been taken from us. I have no land to put myself on. We have not got as much as 4 acres apiece. There is no place in British Columbia where the Reserves are so small.
AMOS SAID: This is what I wish to know. I heard about you coming here to see about this trouble of land here. There is lots of places where our forefathers had their habitation and different places where different ones of us were born. The government at Victoria put their hand down on these places and did what they liked with them. They gave us a small piece of land and the rest they sold away. We want to come before you before you cut it up. We don't want you to cut it up.
The Royal Commission eventually concluded its work but the issue of aboriginal land rights was left completely unresolved.
VII ORDER IN COUNCIL 1036
In 1938 British Columbia conveyed its underlying title in Indian reserves to Canada in trust for Indian Bands to whom the reserves had been allotted. This resolved the jurisdictional problem between Canada and British Columbia. It may well be that the government of British Columbia saw the "Indian land question" as being resolved by this transfer. In fact, this transfer did nothing to resolve the deep-rooted issue of aboriginal title. Aboriginal peoples had legal rights to their Territories and nothing in the reserve creation process had done anything to alter this.
VIII THE TURNING POINT
In 1973 the Supreme Court of Canada decided a case called Calder. In that case the Nisga'a Nation had put forward its claim on surrendered aboriginal title to its entire Territory. The Supreme Court of Canada unanimously held that the Nisga'a Nation had once had aboriginal title. The justices split evenly, however, on the question of whether that title had ever been lawfully extinguished. That decision sounded a warning note to both the federal and provincial governments. It was no longer safe for these governments to ignore the realities of aboriginal rights and title in British Columbia. The cases that followed including Sparrow, a Supreme Court of Canada decision recognizing and affirming aboriginal fishing rights, and Delgamuukw, the 1997 decision finding that aboriginal title had never been extinguished in British Columbia, confirmed this.
As a result of these developments in the Courts, and as a result of the growing understanding within Canada and British Columbia that past policies had been fundamentally unjust to aboriginal peoples, both Canada and British Columbia started seriously thinking about these issues. Canada developed a Specific Claims Process dedicated to resolving, out of court, the range of specific outstanding lawful obligations (often relating to Indian reserves) owed by Canada to First Nations. Canada developed the Comprehensive Land Claims Process which was meant to resolve the broader question of aboriginal title.
Finally, in 1993, British Columbia joined the process of attempting to resolving aboriginal rights and title issues by entering, along with First Nations and Canada, the British Columbia Treaty Commission Process (the "BCTC Process"). The jury is still on both the Specific Claims Process and the BCTC Process.
While the Specific Claims Process has resolved many specific legal grievances of First Nations (including a number of successful claims resolutions in the Okanagan area), the process today has become hopelessly gridlocked. Canada has allowed a huge backlog of claims to develop and hasn't dedicated the necessary resources to addressing these claims. The waiting list to have a claim addressed has increased from a few years to several decades. Ultimately, without serious reform, the process will simply become in itself, another legitimate grievance of First Nations. It is at risk of becoming yet another broken promise to aboriginal peoples.
The British Columbia Treaty Process is even more fundamentally flawed. The Process has been in place for over a decade but has yet to produce a single Treaty[1].
While it is described as a negotiation, both British Columbia and Canada often come to the Process with fixed and inflexible mandates on a number of critical issues. This "one size fits all" approach to treaty negotiation denies the individuality of First Nations across this province. Further, the province currently has dedicated the lion's share of its Treaty negotiation resources to what it describes as four "lead tables". Other First Nations are expected to wait patiently by as British Columbia moves through the Treaty process at a glacial pace.
A number of First Nations have already opted out of the Treaty Process and gone to the Courts to commence the long and adversarial process of proving their aboriginal rights and title in Court. This isn't the first choice of most First Nations but it is a choice that is made more and inevitable by the approach that British Columbia and Canada are currently taking to treaty negotiations.
IX CONCLUSION
British Columbia is a house built without a foundation. It has to be rebuilt from the bottom up. It would have been easier to build the house properly from the outset. But that is a luxury that British Columbians don't have.
Today, in 2004, with the exception of the Nisga'a Territory, aboriginal title in British Columbia remains as unresolved as it was in 1846. It is up to British Columbians today to urge our governments in Victoria and Ottawa to act properly and honourably to resolve these outstanding, legitimate, and fundamental legal grievances. If we do, then we are building up the foundation to the house and it will stand and prosper in years to come. If we don't we are leaving this ever more difficult task of reconstruction to our children and theirs.
[1] British Columbia's only modern day Treaty is the Nisga'a Treaty – negotiated outside of the BCTC Process.