Overview of the Aboriginal Land Question In BC

Past, Present and Future




Discussion Paper by:
Gordon Prest
First Nations Coordinator
Faculty of Forestry
University of British Columbia
January 12, 1997

Overview of the Aboriginal Land Question in BC
by Gordon W. Prest

INTRODUCTION

With the arrival of the first European explorers on the Atlantic coast in 1497 was the beginning of the aboriginal land question that is being grappled with today in the province of British Columbia in 1997....500 years later.

Canadian common law, English common law, International law or even Natural law are all sources that may be used by the BC First Nations to negotiate Aboriginal land title before a Canadian court. But despite these wide range of legal options and relevant legislation that dates as far back as the Royal Proclamation of 1763, British Columbia is now just approaching a resolution to the question of inherent jurisdiction, aboriginal rights and title on crown lands and natural resources throughout the province.

In recent times, this question has bred anger and resentment in both the aboriginal and nonaboriginal communities. it has created the kind of environment suited to armed blockades, police standoffs and strident political rhetoric. Underlying this unrest is a social and moral imperative to resolve the aboriginal land question that exists in BC today once and for all. Accomplishing this fairly is almost certainly a precondition for improving the desperate socioeconomic conditions in which many Aboriginal communities now live

The issues are complex. Some, like self government have been unilaterally defined by the federal government and others like natural resource management and ownership have been defined by the province of BC. Neither definition has been necessarily agreed to by the BC First Nations and has prompted enormous controversy. Still, even beginning to answer the myriad of questions surrounding these complex issues requires a common understanding of the historical relations between the European settlers, the Province of BC and the Aboriginal people of BC. Within this context the answer begins, at least in a legal sense with the Royal Proclamation of 1763. The Proclamation states, simply, that within the British Empire, "Nations or Tribes of Indians" have continuing rights to traditional territories despite the exertion of British sovereignty. Representatives of the British crown must negotiate agreements or treaties to precede settlement or use of the land by the settlers. Through these treaties, the nations or tribes of Indians would surrender in part jurisdiction to tribal lands to the crown in return for various benefits including tracts of land called Indian reserves. This was the settlement process across Canada until the settlers entered what is known as British Columbia and the making of treaties stopped.

PAST

But, in what would become British Columbia, only 15 treaties were ever made. 14 of these treaties were signed between 1850 and 1854 by James Douglas (first HBC chief factor and colonial governor of Vancouver Island and mainland), and were commonly referred to as the "Douglas Treaties" and covered only 358 square miles of southern Vancouver Island.

The other treaty (Treaty No. 8) was signed in 1899 by the federal government covering the Peace River east to the rocky mountains and northern Alberta. Up until now the remainder of BC has not been negotiated for treaties with BC First Nations; the province and federal levels of government.
After signing the 14 treaties, Douglas gave up treaty Making, and a system of assimilating Indians into colonial education, Christian religion and home steading(or preemption)was begun. In 1864, Douglas retired and two years later, the colonies of Vancouver Island and the Mainland were united as the Colony of British Columbia. In 1871, BC entered confederation with Canada. During this period, Joseph Trutch became the Commissioner of Lands and Works as well as the first LieutenantGovernor of BC and directed the aboriginal land policy in the province.

In Trutch's view, Indians were scarcely better than animals and did not have inherent rights or jurisdiction to land and resources prior to contact with the Europeans. First, he led the colonial legislation to revoke Indian rights to preemption. Then, he sought to impose the Doctrine of terra nullius which denied that precontact ownership and occupation existed, thereby eliminating the notion of aboriginal title to land and resources. With the acceptance of the doctrine of terra nullius by the Province, would in effect deny the relevance of the Royal Proclamation of 1763 west of the Rockies and would eliminate the need to negotiate treaties with the First Nations of BC. Trutch misled the federal government while arranging BC's entry into confederation insofar as the terms of union with Canada made no reference to aboriginal title and suggests that Ottawa believed that colonial lands were unencumbered.

For the next 120 years, terra nullius guided aboriginal policy in BC. In the meantime, the federal Indian policy is best depicted by this quote from Duncan Campbell Scott, deputy superintendent of the department of Indian affairs:
"Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question." That was the official national policy...No more Indians.

With the implementation of the above national policy of assimilation of Indians into Canadian society, many basic human rights were denied to the Aboriginal people under the Indian Act:
Right to vote in BC elections denied until 1951.

Christian residential school system was well established and removal of Aboriginal children from home and family until 1960.
The Potlatch, the major socioeconomic, political institution and govemance body of the coastal people was outlawed until 1951.
It was illegal for Indians to gather or pursue discussions on land claims until 1951. e If an Indian obtained a university education and degree, they were enfranchised as a Canadian citizen and lost their status as registered Indian under the Indian Act.
If an Indian woman married a white man, she lost her status as a registered Indian under the Indian Act as well as her descendants. Conversely, if a white woman married an Indian man, than she would be eligible for Indian status under the Indian Act as well as her descendants.

These are but a few examples of the harsh treatment that Aboriginal people endured up until very recent times.

PRESENT

In 1969, the federal government under prime minister Trudeau with Jean Chretien as minister of Indian affairs, attempted a grand design for Indian assimilation into Canadian society through a discussion paper called the "statement of the Government of Canada on Indian Policy", or more commonly known as the White Paper of 1969. The federal government proposed the abolition of Indian status; the elimination of the department of Indian affairs within 5 years and the ending of the special responsibility of the federal government to status Indians as a legal concept or responsibility. In effect this was the culmination of the national Indian policy to eliminate the Indian people as a known entity in Canada that was pronounced by Trutch and Duncan Campbell Scott nearly 100 years before.

The White Paper of 1969 was unilaterally denounced by the First Nations people and thus began the self determination process that we are witnessing today in the courts and negotiating tables between the BC First Nations, Canada and the Province of BC.

In British Columbia, the judiciary system has played an important role in recognition of aboriginal rights by both levels of government. The Calder case, 1973 established that aboriginal rights were not extinguished when BC entered confederation with Canada; The Guerin case, 1984 confirmed that the federal government has a "Fiduciary responsibility" to safeguard aboriginal interests and rights; The Meares Island case, 1984 upheld a court injunction to halt logging on Meares Island to support the NuuChahNulth claim that logging would interfere with Aboriginal title and rights; The Sparrow case, 1990 recognized and affirmed aboriginal fishing rights within a modem context as a priority only after conservation goals have been met and The Delgamuukw case, 1993 recognized that aboriginal people have unextinguished nonexclusive aboriginal rights to much of their traditional territories for hunting, fishing and sustenance activities

These landmark court cases established the foundation whereby the province of BC finally recognized aboriginal rights on April 14, 1992 and started the BC Treaty process to resolve the aboriginal land question in BC.

On January 25, 1995 the province of BC developed the "Crown Land Activities and Aboriginal Rights Policy Framework". This interimmeasures policy framework established that any activity on crown land must not infringe on any aboriginal right and the province of BC must consult with the First Nations affected to ensure that their interests and rights have been adequately protected and not infringed upon.
Not until the historic signing of agreement in principle in treaty negotiations with the Nisga'a on February 15,1996 which was negotiated outside of the BC Treaty process, has the aboriginal land question in BC been adequately dealt with by the two levels of government.

FUTURE

For the future, I see the BC First Nations people finally becoming true partners in the socioeconomic development of the BC and stepping forward to take their rightful place at the planning table for our common future and benefit in the province. This will be achieved through the BC Treaty Process and the interim measures policy that is being enacted by provincial legislation to cover BC land and natural resource use until such time as treaties are negotiated and the land question is resolved. The future resolution of the Aboriginal land question, in a large part, has still to be written.... and is being developed at the main negotiating tables of the BC Treaty Process around the Province on a day to day basis. Reference Readings

1. Land mark Court Cases.

2. BC Treaty Commission (BCTC)

3. Crown Land Activities and Aboriginal Rights Policy
Framework

4. Nisga'a Agreement in Principle(AIP) Executive Summary.

Landmark Court Cases

In British Columbia, The courts have played an important role in the ongoing efforts of aboriginal people to
have their rights recognized. Frustrated by the refusal of past provincial governments to recognize
aboriginal rights, and to negotiate treaties that would define those rights, First Nations began turning to the
courts of justice. Beginning with the 1973 Calder Case, a number of landmark rulings by Canadian courts
have gone a long way to define aboriginal rights.
Calder decision, Supreme Court of Canada, 1973
The Nisga'a Tribal council asked the courts to support their claim that aboriginal title had never been
extinguished in the Nass Valley covering their traditional territory. The Supreme Court of Canada ruled
that aboriginal title is rooted in the "longtime occupation, possession and use" of traditional territories.
As such, title existed at the time of original contact with Europeans, regardless of whether or not
Europeans recognized it. As a result of this decision, Canada agreed to begin negotiating a modem treaty
to define aboriginal rights to land and resources within the Nisga'a traditional territory in the Nass Valley
which is reflected in the agreement in principle being signed by the federal and provincial governments on
February 15, 1996(23 years later).
Guerin Decision, Supreme Court of Canada, 1984
The Musqueam First Nation sued the federal crown for breach of trust concerning 162 acres of Indian
reserve land that had been leased to the Shaughnessy Golf Club in the late 1950's. The Supreme Court of
Canada ruled that the federal government, as trustee of the lands, had not provided the Musqueam people
with proper protection of lands held in trust for them by the government under the Indian Act. The ruling
recognized preexisting aboriginal rights both on reserves and outside reserves. It also confirmed that the
federal government has a "fiduciary responsibility" to safeguard aboriginal interests.
Meares" Island, BC Supreme Court, ongoing
The NuuChahNulth First Nation blocked the access to MacMillan Bloedel to Meares Island. The NuuChahnulth First Nation claimed allowing logging on Meares Island interfered with aboriginal title. A court
injunction was sought to halt logging operations until land claims had been resolved.
Sparrow Decision, Supreme Court of Canada, 1990
A member of the Musqueam First Nation (Ron Sparrow) appealed his conviction on a charge of fishing
with a longer driftnet than permitted by the terms aboriginal food fishing under the Fisheries Act. Appeal
was based on that the charge was inconsistent with Section 35 of the Constitution Act, 1982section that
recognizes and affirms aboriginal and treaty rights. The Supreme Court ruled that any government
regulations that infringe on the exercise of an aboriginal right must be constitutionally justified. It further
ruled that

Aboriginal and treaty rights are capable of evolving over time and must be interpreted in a generous and liberal manner.
Governments may regulate existing aboriginal rights only for a compelling and substantial objective such as conservation, and management of resources; and,
After conservation's goals are met, aboriginal people must be given priority to fish for food over other
user groups.
Delgamuukw Decision, BC Court of Appeal, 1993
The Gitksan Wet'suwet'en First Nations asked the BC Supreme Court to recognize their ownership of
57,000 sq. kilometers of traditional lands, the right to govern their traditional lands and to receive
compensation for loss of lands and resources. The McEachran decision ruled that aboriginal rights were
extinguished at the time of confederation, but as such, the province had a legal obligation to permit
aboriginal sustenance activities on unoccupied crown land until the land was dedicated to another
purpose. The Gitksan Wet'sewet'en First Nations took their case to the BC Court of Appeal, and this court
reversed much of the earlier McEachran decision and ruled that the Gitksan Wet'suwetian First Nations do
have "unextinguished nonexclusive aboriginal rights, other than the right of ownership," to much of their
traditional territory. In addition the court strongly recommended that the scope and content of those rights
would be best defined through negotiation rather than litigation. This was attempted and negotiations
failed and it has been resumed for decision to the Supreme Court of Canada to further define
unextinguished, non exclusive aboriginal rights on crown lands.
For further information contact:
Ministry of Aboriginal Affairs,
Communications Branch
1st Floor, 908 Pandora Avenue,
Victoria, BC V8V 1X4
Telephone: (604) 3560330 Fax: (604) 3871785
BC Treaty Commission

Treaty Negotiations in British Columbia

The Province of British Columbia has finally entered into negotiating modem day treaties with BC First Nations. Treaties that will clarify Aboriginal rights and title to lands and resources and address such issues First Nations selfgovernment and the social, economic and environmental concerns of all parties. Settling Aboriginal issues at the negotiation table rather in the courts will create social stability for all British Columbians. The role of the BC Treaty Commission(BCTC) is to facilitate the negotiation of treaties between the BC First Nations people; the Province of BC and the Federal government. A six stage process has been adopted by the BCTC for negotiating treaties.

1. The Statement of Intent.
2. Preparation for Negotiation.
3. Negotiation of a Framework Agreement.
4. Negotiation of an Agreement in Principle
5. Negotiation of a Final Agreement. 6. Implementation of a Treaty.

Stage 1Statement of Intent
This begins the process. It must cover three things: identify the First Nations people;
geographic area of their traditional territory and the formal contacts for communication.
43 Statements of Intent have been accepted by the BCTC.

Stage 2Preparation for Negotiation
Within 45 days of receiving a Statement of intent, the BCTC must convene an initial
meeting to start preparing a negotiating table. 36 First Nations are at stage 2.

Stage 3Negotiation of a Framework Agreement
The Framework Agreement is, in effect, the "table of contents" for a treaty negotiation. It
is a negotiated agenda that identifies all that is to be negotiated. 7 First Nations at
Stage 3.

Stage 4Negotiation of an Agreement in Principle
This is the stage at which all parties begin substantive negotiations. The goal is to reach
the major agreements that will form the basis of the treaty. Agreements must be ratified
by all three parties. It is anticipated that a number of First Nations will enter stage 4
in 19967

Stage 5Negotiation to a Final Treaty
The treaty will formalize the new relationship the parties and embody the agreements
reached in the AIP. Treaty will be signed and formally ratified at the conclusion of this
stage.

Stage 6-Implementation of the Treaty
Long term implementation plans to be developed to incorporate the treaty agreement.

The BCTC is comprised of 5 appointed Commissioners:
Alec C. Robertson As Chief Commissioner.
Barbara L. Fisher is the Provincial Commissioner.
Carole T. Corcoran is the BC First Nations Commissioner.
Wilf Adams is the other BC first Nations Commissioner. Peter A. Luztig is the Federal Commissioner.