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A Quick History of the Aboriginal Land Question in British Columbia

Jim Hendrickson

By Dr. Jim Hendrickson. A retired history professor from the University of Victoria.

Accession Number Interviewer SSI Historical Society Address
Date October 13, 1998 Location Central Hall
Media tape Audio CD mp3 √
ID 138 Duration



yes, 11.03.2024

Molly Akerman

Speaker 0:03 [Introduction chatter]

Jim Hendrickson 0:31
I'm very glad to be here. I really didn't know what to expect in terms of the kind of audience that I was speaking to or anything else. What I have done is I brought a few copies of an outline along, I will be happy to distribute it people that may help you follow. The people in the back especially can you hear me? If you can’t, please wave or whatever.

JH 1:25
Actually, I realized when I was thinking about this, the title I had suggested to Barb is an impossible title. It's misleading, it's wrong. It's not going to be a quick history or a brief history. Because I'm going to try to do the impossible, I think, to try to sketch at least the highlights of the history of what in British Columbia is been known for 100 years or more as the Aboriginal land question in British Columbia. It's a very topical item, I think. And I commend people who are interested in this or interested in informing themselves about this. My apology in advances because this is such a complex issue. I made the statement before I don't think there are three people in 1000 in this province that really appreciate what all is involved in this Aboriginal land question. And one of the things I ended up doing at UVic, when I got my courage screwed up enough, was to try to mount a course on this topic, and what I'm going to try to do this afternoon is to condense a whole course into into one session.

JH 3:06
So we will be flying along. And as I say, it's very confusing. I will try not deliberately to confuse anybody, but I would like to at least give people some impression of what are some of the major issues involved? And some of the reasons why it is so complex. It's a timely issue, because obviously, I'm sure we'll get some questions maybe about the the Nisga’a land treaty that has been in the news so much now. And I don't particularly want to persuade anybody, one way or the other. What I would like to do is to try to review past events, so that when people make judgments about it, it can at least be an informed judgment as to where we are now. And before we start into the history, I think it is worthwhile to review, remind ourselves of the fact that the Aboriginal land question in British Columbia is unique to British Columbia. There is not another example, anywhere in North America. That compares to the situation that we are in today. And there are a number of reasons for this, that we need to appreciate. In the first place, the nature of the Aboriginal people themselves is different in British Columbia, than any other province in Canada, or State of the Union in the US. The group of people that we have here, for the last, probably 10,000 years, are more diverse than anywhere else in North America.

JH 5:20
The amount of diversity is really quite incredible. It's comparable, I should think to Yugoslavia, Eastern Europe, some of those areas. Anthropologists have divided native people in North America, they’ve classified them into 10, or 11 different major groups, depending upon how you define them. Of those 10 or 11 major groups, we have four of them in what is today British Columbia. There's no other place in North America that has this kind of diversity. And these are not only these major ethnic groups, but when you look at them linguistically, it is even more complex. Because each of these major groups has many subgroups with very different linguistic backgrounds. And the linguists in the last 20 years, have done an awful lot of studying of the Aboriginal languages, and trying to classify them to sort them out. And this is certainly not a field I'm knowledgeable about, but I understand that they have run the gamut from anywhere from five major language groups, up to about 30 major language groups, we're talking about the difference between English and Russian here. And in recent times, the last decade and a half, I understand the consensus seems to be moving back again. So maybe we're in the area of a dozen major language groups. And there are many different ways of looking at this or trying to decide the relationships of these languages.

JH 7:28
But what it means is that we have people who have been living here, even within the major ethnic groups, say the coastal Indians, their languages have been mutually unintelligible to others. And the diversity is it's just incredible. So that when we talk about the Aboriginal land question, or Aboriginal people in British Columbia, it's almost impossible to generalize. Because they are so different from the coastal people and their long houses and the cedar and salmon cultures, to the Dene people of the north eastern part of the province, or the plateau people of the interior living in their [indiscernible] houses, or in the Kootenays the Prairie People who hunt Bison and would cross the mountains very year. It’s been going on for 10,000 years or more. And so, as I said, it's very hard to generalize about the Indians of British Columbia.

JH 8:49
These people are as different from each other, they have they feel no kinship with each other. They have not historically. Their contacts been limited to trade or trading routes. Well, so that's one thing we need to bear in mind as we look at the history of what's happened, in terms of our relationships with them. A second major characteristic that sets British Columbia apart from the rest of North America is simply the reserves that exist here. In all of Canada, there are slightly more than 2200 reservations that have been established. 1628 of those 2200 are in British Columbia. Nowhere else in North America will you find this pattern of reserves. Now having said this, we also need to say that whereas most of the people, the reserves in British Columbia represent only 14% of the total acreage of all of the reserves in Canada. So what we have here, we have many postage stamp size reservations, throughout British Columbia. And I'm sure you're all familiar with this, because whatever local area you're in, there are going to be many different reservations. You won't find this anywhere else in North America. North American example, everywhere else, you're going to have large areas that have been reserved for people.

JH 11:02
So that's, that makes British Columbia very distinct. Another major thing that we need to understand how to make sense out of what's been going on for the past 150 years. Is that when British Columbia, British Columbia was its own separate Parliament, and I'm going to spend a fair bit of time maybe too much time talking about what was happening in, in the colonial period, because it turns out to be pivotal for all the rest of the history. Because British Columbia was a separate colony when it entered Confederation with Canada. British Columbia went into Canada and 1871. But the land, the Crown land of British Columbia, remained in the crown provincial, it was not transferred to the Crown federal. This is going to be a very important development because what it means is that British Columbia to this day continues to own the land and the resources. The federal government has virtually no land here in British Columbia. And unlike the prairies, for example, as they were settled, and the Indian reserves were established, the federal government was simply acting unilaterally. And as we will see, this did not happen in British Columbia. And because of the history of the events, the federal government can't do anything in British Columbia without the concurrence of the provence. And so this has enormously complicated things in a way that hasn't happened anywhere else in North America. Another factor, related to this has been for the last 140 years, whatever it's been, since Confederation, since we joined Canada, there has been a long legacy of federal provincial conflict.

JH 13:35
Every British Columbian and I think knows, that the most certain political issue you can count upon from provincial politicians is going to be attacking Ottawa. And this has been going on since Confederation, and particularly over this area of Aboriginal rights. And there's been this long standoff between Victoria and Ottawa over Aboriginal issues. And so, it's been the native people who have borne the brunt of this and have suffered enormously as a consequence of this. Another issue that makes British Columbia quite distinct is that, with certain exceptions, that applied mainly to the colony of Vancouver Island, British Columbia has not signed a treaty with the Native people, the exception of treaties that were signed by James Douglas back in the 1850s. One other exception in 1898, as a consequence of the Yukon, the Klondike Gold Rush with the federal government negotiated a treaty up in the East River block was part of treaty eight. But with those exceptions, British Columbia has not negotiated treaties with people.

JH 15:33
And finally, the thing that makes British Columbia the most distinctive I think, of anywhere in North America, it's the only English speaking jurisdiction where the government has refused to recognize Aboriginal rights or aboriginal title to land. And this is a fundamental distinction. And it has happened nowhere else in North America. So it puts us in the same situation as the Australians find themselves in, which is another area where Aboriginal rights were not, have not been recognized until just within the last three or four years. Supreme Court of Australia has handed down a decision there that puts them in the same situation that we are in British Columbia. today. Let me say something in terms of pre colonial conditions, and let me say something about this law, the concept of aboriginal title which is something that few people understand. And so much of the discussion these days about what's going on in treaty negotiations and so on, relate to this concept of aboriginal title.

JH 17:19
In English common law all land was originally held by the King, who initially claimed it and held it by, what was you probably remember from your school days as the divine right of kings. That is the kings who were God’s representatives here. This means title to land under English common law can only be derived from the crown. The crown issues grants to land. In modern times title to land is normally conveyed by what is called Fee Simple. Many of you are landowners who have land that's registered, you own this land in fee simple. In feudal times, the fee referred to a feudal benefices including, and most often an estate in land. That is it was held from a feudal lord. In common law, the states are held either in fee tail, which means it's restricted to a certain class of errors, usually the eldest son. And so land that was held in fee tail, under the feudal system would only be passed on to the eldest son. Or land was held in fee simple which means that it's unrestricted and it can be sold to anybody, it can go to anybody. Now aboriginal title to land is a difficult concept to explain. It has been explained as a burden on the title of land. Think of this table here, if I had a blackboard here, I would draw a box and say here's the title to the land. I would draw another box sitting on top of it and say this is aboriginal title, which is a burden on the land. What this means in simple language is that Aboriginal people can only sell their land to the Crown.

JH 20:33
Now how does this work out? In colonial times, part of the problem that we are still coping with is that the colonial office in London never really had a clearly defined policy. The British Empire, in the words of one of its most distinguished historians, just grew like [indiscernible], as [indiscernible] said, in a paraphrase that I love “we seem to have peopled, conquered and peopled half of the earth in a seeming absence of mind”. And when you start looking at different colonial history, it really is this way, you can’t try to classify colonies. It's impossible, they're all over the map. And Aboriginal policy is very much reflective of this kind of [indiscernible] your way through. I mentioned the problems in New Zealand, in Australia, a sharp contrast to what happened in New Zealand. So when we come to British Columbia, we come to North America. first Englishman who settled in North America, settled in Virginia in 1607. And at that time, the Crown recognized that Aboriginal populations had certain rights that had to be respected by Englishmen, including rights to land. The Crown also reserved to itself, the right to deal directly with natives for the surrender of their land.

JH 22:46
They would not let the individual settlers do this. There was a responsibility of the crown. And following the conquest of Canada, in 1763. This policy was embodied in a royal proclamation that was issued. And this became the constitutional basis upon which future Canadian policy was based. And I'm not going to read the whole proclamation at this point. But embodied in this proclamation are certain fundamental principles. One, Aboriginal people shall not be molested or disturbed on any lands that have not conceded by them to the crown. Two, no Governor shall allow surveys or issue patents to land that has not been first ceded to the crown, that is that this aboriginal title has not first been extinguished. Lands beyond the jurisdiction of present governments are unceded and they are reserved to Aboriginal peoples. So settlement cannot spread out till the aboriginal title has been ceded to the Crown. Finally, Aboriginal people can only sell their lands to the Crown. Now, the proclamation established a clear foundation for Land Policy in Canada but in 1763, nobody knew there was even land here in British Columbia. The question of whether it applies to British Columbia is still one that's being held for adjudication by the courts, probably doesn't make any difference because we clearly understand from the proclamation, what colonial policy was supposed to be here in North America. So let's look now at what happens in.

JH 25:25
So let's look now at what happens in what becomes British Columbia. We start out with the colony of Vancouver Island. Established in 1849, by the British Parliament in response to the Oregon boundary Treaty of 1846. Prior to which both the Americans and the British had claims to this territory that ran from 42 degrees, which is the California and Oregon boundary, up to 54 degrees, 40 minutes, which is the south end of the Alaska panhandle. And prior to this, there were agreements by which this land was to be open to nationals of both countries. The Oregon boundary treaty established the boundary at the 49th parallel and through the Straits of Juan De Fuca. Much to the chagrin of the Hudson's Bay Company, who were hoping and counting on the boundary, eventual boundary being the Columbia River. In fact, they shifted the headquarters from the north to the south side, I mean, from the south to the north side of the of the Columbia River, just in in anticipation of that eventuality. But in fact, things didn't work out that way and the 49th parallel became the boundary instead. And the British colonial office realized that the only way to effectively halt the spread of American settlements into this area as well was to establish a colony here. But the colonial office in that period was in, or the government in that period was in the same kind of financial constraints that we are today. And they were not prepared to spend any money on this. And so after casting a vote, they came up with this notion of turning vancouver island over to the Hudson's Bay Company, in exchange for the Hudson's Bay Company agreeing to establish a colony of British subjects on Vancouver Island. And this transpired in January of 1849. So the Hudson's Bay Company became the sole owner of Vancouver Island, they became the proprietor of the colony. You can read most histories of British Columbia and you will find vancouver island being referred to as the Crown colony of Vancouver Island. And that's wrong. Vancouver Island was never a crown colony.

JH 28:48
And this is fundamental importance. What about the native population here? In fact, to grant of lands on the Hudson Bay Company was silent about the native population and a confidential memo that was published by cabinet, I believe, for the benefit of cabinet when they were discussing this grant had this to say: It must be added that in parting with the land of the island, Her Majesty parts only with her own right there in and that whatever measures she was bound to take, in order to extinguish the Indian title are equally obligatory on the company. The only problem is that the company didn't know this, this was a confidential memo for cabinet purposes only. But what what the crown is saying is that we transfer this land, the obligation is now on the company to extinguish title. Well, the company was a very formidable company when it came to the fur trade and can take on all competitors and it did. But when it got into the colonization business, this was something else again. And that did not go so well. When you stop to think about, really what's going on here, you have a fur trade monopoly. And they are expected to establish a colony of settlements, which is incompatible with a fair trade. And how seriously are they going to take this charge? What the company did was name James Douglas, not only as the Chief of the fur trade operations west of the mountains, they also put him in charge of the colonization of Vancouver Island. So he's wearing two hats at the same time. He has to keep two sets of books, one for the fur trade operations, but the other colony, the Crown agreed that the Hudson Bay Company could sell land at a reasonable price and use the proceeds of that to pay the expenses of the colony.

JH 31:52
James Douglas also found himself wearing a couple of other hats. At the same time, they established farms, the Puget Sound agricultural company, which was to provide Russians headquarters, the Russian American company, headquarters in Sitka, to supply them rather than getting their supplies from the Americans as part of a strategy to drive the Americans from the coast. And it worked. So here's a third set of books that Douglas is keeping. Point of all of this is that whenever Douglas is acting, you have to remember which hat he is wearing at the time he was doing certain things, because after nine months the governor who had been sent out here, who was Richard Blanchard had enough and he quit. And the Hudson Bay Company at this point would recommend the Douglas to the colonial office initially as the governor of colonial office finally gave up and said, “okay we'll appoint Douglas as governor”. So now he's wearing a fourth hat, as the governer. Responsible to the colonial office in London. But the man who's in charge of land operations here is wearing a Hudson Bay Company hat and responsible to the directors of the Hudson Bay Company, beaver house [indiscernible] street in the heart of the financial district in London. And it was wearing his hat as person, Hudson Bay Company employee in charge of colonization, that Douglas negotiated the first treaties. Some interesting things about James Douglas here. Before Douglas have received any instructions from the directors of the Hudson Bay Company in London, and he got lots of them, he wrote to them saying, “well, before we can sell any land here before we can survey this land, we're going to have to extinguish aboriginal title”. I don't know why Douglas knew that, but he is an extraordinary man. It says something about letters crossed in the mail and mail took six months to come. And the Hudson Bay Company was saying yes, as you begin now before we can do anything else, we have to extinguish aboriginal title.

JH 34:38
But some other interesting things happened here. Hudson Bay Company was saying you got to buy this land from the Indians, establish a reservation for them to be on. The other land that the Indians arent living on can be regarded as wasteland and open for settlement. But what Douglass's letter said, when it was already in the mail, was that we have to extinguish aboriginal title. Even after Douglas got the instructions. What he did was to meet with the various groups around Fort Victoria, really from Sooke to Sydney to negotiate treaties with them. And I have a copy of one here, very simple. I shouldn't have said treaties, there were agreements, they’re in the archives. Form of agreement for the purchase of land and the natives of Vancouver's Island. Douglass's problem was that this is quite an important undertaking. And he wasn't sure, he wanted to make sure that the right thing. And so he met with the natives. He had them sign these agreements. They marked their x, they were dutifully recorded to a blank sheet of paper. And he set this blank sheet of paper to the directors of London for their approval. Because what he said he had told them was that all of the land, except for the reserves were going to be theirs. And when the Hudson Bay Company got that, and they looked at this, which was just the opposite of what the instructions had been to them, they agreed with him, and they sent back this form to be filled out for the native roots and it says this.

JH 37:11
“No, we all men, no all men, we the chiefs and people of the tribe called blank, who have signed our names and made our marks to this deed on the blank day of blank, 18 and blank, do consent to surrender entirely and forever to James Douglas, the agent of the Hudson's Bay Company in Vancouver's Island, that is to say, for the governor, deputy governor and committee of the same that's the board of directors of a company, the whole of the land situate and line between and you fill out the description of the borders. The condition of our understanding of this sale is this, that our village sites and enclosed fields are to be kept for our own use, for the use of our children, and for those who may follow after us, and the lands shall be properly surveyed hereafter. It is to be understood, however, that the land itself with these small exceptions, exceptions being our building sites, becomes the entire property of the white people forever. It is also understood that we are at liberty to hunt over the unoccupied lands. And to carry on our fisheries as formerly. We have received this payment blank and token whereof. We have signed our names and made our marks at blank on the blank day of blank 18 and blank”.

JH 38:51
And that's what Douglas did. You fill these in, add the dates, and so we have what are commonly referred to as the fort Victoria treaties. When the Hudson's Bay Company opened mining operations up in the Nanaimo, they did the same thing there. That's the only treaty that has not been found, it's not in the library, in the archives in Victoria. Nobody knows whatever happened to it, but I have no reason to believe that the wording was any different than this.

JH 39:25
Now, so Vancouver Island starts out as its own colony. It's a proprietary colony. It belongs to the Hudson's Bay Company. There is no doubt that what James Douglas understood he was doing was to negotiate agreements that would extinguish the Indian title. So he could get on with the business of surveying and selling this property to other people. So he had some income to spend in bringing the colony, in establishing the colony. Because in that agreement with the Crown, there was both a carrot and a stick. It said if the Hudson's Bay Company has not established a colony within five years, it loses everything that's put into the project. There was another clause there that said after 10 years, the Crown has the option of resuming control of the colony by paying to the Hudson Bay Company, reimbursing them for any expenses that they might be out of pocket. And if you look ahead a little bit, that's exactly what happened because of some other unforeseen events. Colony of Vancouver Island was started. Fourth of January 1849, means this grant runs until 1859. But in 1858, there were some other things that happened on the mainland with the discovery of gold. And all of a sudden you have 25, maybe 30,000 miners that have moved in here. What is the, what is the crown do here, but to establish another colony on Vancouver Island.

JH 41:38
On Vancouver Island, James Douglas, I think had quite a what I would consider to be an enlightened view of Aboriginal people. His wife after all was half Indian, he spent all of his his life in close contact with them. James Douglas, unlike most of the other colonial officials whose contemporary is to say nothing about the settlers who came. He did not stereotype people, for example. He really saw them as as, as rational beings. He wanted...I could spend a lot of time talking about what James Douglass's goal was or what his hopes were, he wanted...there's no doubt that he saw Aboriginal people eventually assimilating into white society. That's a key word assimilation. The traditional policy has been based on, Canadian Indian policy, has been based on three cornerstones. Protection, goes back to the French and Indian wars with the Americans, and the Indians allying with the British forces, and so, the proclamation was issued to guarantee protection to Indian people from white settlement, providing this orderly way that their land should be settled. Second word is civilization, because in the 19th century, most European people saw natives as being uncivilized, savages, just read any of the literature, they talk about Aboriginal people. And so, protection, civilization, the key word is assimilation. It’s no doubt Douglas thought that most people would become assimilate. But if we had time to look in detail at Douglas’s policy, we would see that what James Douglas envisioned, these reserves that were being established around Victoria, orderly places would keep the whites out. Irony of this was the original meaning of this word reservation, was it was an area that was reserved for the Indians, as he spoken them as a legacy for their old age.

JH 44:42
So whatever else happened, they would always have their traditional village sites to fall back on. Could keep whites out. But he did expect that they would take place in in society. He expected, for example, that Aboriginal people would own land like the whites. This isn't going to happen. But it's not his fault. And part of the problem, again another little known, little publicized aspect of British Columbia history, James Douglas was fired. He lost his job, because the colonial office came to the conclusion that we cannot go with this man farther. And so he was, in Douglass's words, he was prematurely terminated as governor. And the successors to James Douglas, did not have the same kind of feeling. We can look at what Douglas did with the Songhees reserve in Victoria, where he set up agents. He wanted to see this as an economic machine that would generate income for the Native population. And again, when the successors took over, this turns out to be something quite different. All right, we have the the Gold Rush occurring in British Columbia. [mic cuts out]

JH 46:52
Douglas had no jurisdiction on the mainland, but he was forced to act until the colonial office could decide what to do there. They decided not to go the route of Vancouver Island. They decided to go another extraordinary route. And that is to establish a crown colony, they patterned it after [indiscernible] in fact. Now a crown colony is a colony that has been established by conquest, and you can't trust the native population. It wasn't the native population that they were thinking about, it were all the 25,000 American miners up there. And James Douglass's successor, Governor Frederick Seymour left the administration of Indian Affairs to the Chief Commissioner of lands and works, who's Joseph Trutch. And Trutch had very different notions about the Aboriginal population. What James Douglas did, at the time of the Gold Rush, he made a tour of the Fraser River, an inspection tour, found out there were problems just above Hope. Where the white miners and the natives were on the cusp of coming to blows, the natives were complaining to him, these whites in their, what had been their village areas. And so James Douglas simply put up a sign and said, this land was reserved to the natives, whites keep out. There was no exchange, no treaties, or anything else, just the establishment of the reserve.

JH 48:45
In Douglass's time, he also realized he's going to have a great problem on his hands here with a gold rush, and so he issued instructions to the land agents that were established, Douglas by the way was also appointed the governor of the colony of British Columbia, two distinct entities now. So he's wearing yet another hat. And on British Columbia, he issues instructions to his land commissioners, to get out there to establish these reserves as soon as you can, before the whites are going to be pressing in here. How do you do that? You ask the natives. What land they're using for their villages? Where are their villages, where their bury patches? Where are their cedar groves? Where are their kelp beds? Their berry patches? Their cemeteries? Whatever. Let them show you where they are, you mark them off and reserve them. And this process started happening, James Douglas, who was not a good administrator never embodied this in law. And so we have this situation, which is underway where you're having a lot of reserves that are being established. And then Douglas is removed from those, and Seymour puts his chief commissioner of lands and works in charge of this, gets all of the information from Joseph Trutch. Joseph Trutch looks at the situation says, “this is unreal”. We've got reserves that are established here in the lower Fraser Valley or especially around Kamloops, for example, and commissioners had been up there. The Indians said, what's your land? They said it runs 10 miles north and 15 miles east and they established a reserve. In the Fraser Valley, all of the crush of people coming in, wanted this land that had been marked as reserved. Most of these haven't been surveyed. And, to make a long story short, what happened to Trutch recommended that these commissioners have obviously misunderstood Douglas’s instructions, he could not possibly have intended them to have this much land. And so we need to we need to redefine them.

JH 51:37
And so arbitrarily what happened is, people went out, and they reduced the size of these reserves. By the end of the colonial period, British Columbia by the way, absorbed Vancouver Island in 1866, was not a union of the two colonies. Vancouver Island was terminated and it was annexed to British Columbia. So the jurisdiction of British Columbia was extended over vancouver island. Vancouver island lost all of our institution, she had our own legislature, elected members, British Columbia never had that, didn’t during the colonial period. So what happens is that by the end of the period, Joseph Trutch, is also saying, you know, those agreements that James Douglas had signed with had nothing to do with aboriginal title. They were peace treaties. And at this point, British Columbia decides to enter Confederation of 1871. Three people were appointed to go to Ottawa to negotiate terms of Confederation. And one of them in fact, the key player was Joseph Trutch. During these negotiations, something very interesting happened. There was nothing said about Aboriginal people in the discussions in the BC legislature. But when the agreements were drafted, on the back of these sheet, a clause, number 13 was inserted in this during the negotiations in Ottawa,

JH 53:43
I still don't know who was responsible for the wording of this. But it is critically important that as we read it, you will see it's also somewhat ingenuous. Because under the British North America Act, when British Columbia joins Canada, Indian Affairs become a federal responsibility. And article 13 of the terms of union says this “The charge of the Indians on the trusteeship and management of the lands reserved for their use and benefit shall be assumed by the Dominion government. And a policy as liberal as that hitherto pursued by the British Columbia government, shall be continued by the Dominion government after the union. To carry out such policy, tracts of land of such extent, as it has hitherto been the practice of the British Columbia government, to appropriate for that purpose, shall from time to time be conveyed by the local government to the Dominion government, in trust for the use and benefit of the Indians”. So this has to be there, because the federal government has no land here. So what British Columbia is agreeing to when it comes into Confederation is to make a land available for these groups where reserves that had not yet been established.

JH 55:29
In case of disagreement between the two governments respecting the quantity of such tracts of land to be so granted, the manner shall be referred for the decision of the Secretary of State protocol. So here's a process. Now, so after Confederation, the federal government began to realize that there was something different going on out here in British Columbia, when they said well, give us a list of the reserves that are established [indiscernible]. They are minuscule compared to what had been done in the province, they've already been reduced. Whereas in the prairies, for example, and the federal government had just concluded establishing their treaty process, 160 acres to an adult male on the prairies. In British Columbia, it was under 10 acres. And British Columbia said, well, you know, in British Columbia 3% of the land is suitable for agriculture. These are the river valleys. This is where all of the Indians live. This is where all the whites we moving into. That's unreasonable to suggest more. The federal government looks at this and said 10 acres for these people, this is unreasonable. You want more land, have as much as you want. But you pay us for it, because our agreement says “tracts of land of such extent as it has hitherto been the practice of the British Columbia government to appropriate shall be conveyed by the local government to the Dominion government”. That's our bargain. We only said we would turn over that much land, the same that we had been using in the colonial period.

JH 57:57
Ottawa thought this was outrageous. Thought it was even more outrageous when Trutch informed them that British Columbia had never recognized Aboriginal title to the land. These agreements that Douglas had made were simply for, i mean they were peace treaties. Ottawa says well, you can't sell land until aboriginal title has been extinguished. You see, he's been doing it, all of the landowners in British Columbia have bought land without aboriginal title being extinguished. What kind of chaos is this gonna create? Ottawa says well you have to extinguish aboriginal title. And British Columbia says well, be our guest. The charge of Indians, the trusteeship and management of the lands reserved for their use and benefit shall be assumed by the Dominion government.

JH 59:22
This land shall be conveyed in trust for the use and benefit of the Indians on application [indiscernible]. This is the crux of the matter. Ottawa discovered now their responsibility for extinguishing aboriginal title in British Columbia. They get no benefit from it at all. British Columbia has taken the position that there is no Aboriginal type or if there is it has been extinguished. There are three ways that aboriginal title can be extinguished. One is by conquest or by war, you defeat a people which will, under English common law will extinguish the aboriginal title. But this had not happened here. A second was by purchase, which is the usual way, by a treaty, some exchange or whatever, can be $1, to make it a legally binding treaty. That hadn't happened in British Columbia. The third way is by legislation, you can simply pass a law saying aboriginal title does not exist, and it's been extinguished.

JH 1:00:59
The only problem when you do that is that you admit that it did exist in the first place. And you are therefore liable to be sued for compensation. And so this is what had caused British Columbia in the latter part of the colonial period, to say, aha but there's another way that we can extinguish aboriginal title by never recognizing in the first place. You look through every statue that was passed in the colonial period, not one mention of aboriginal title. And British Columbia, from that time, until [indiscernible] closing days, 1991, or 92, has consistently refused to recognize aboriginal title. They have refused to meet and talk with the natives about aboriginal title. Because they know that if they do they open themselves to a lawsuit that they admit once that exists. What the whole fight has been about is who's gonna pay? Is it going to be British Columbia taxpayer? Or is it going to be the federal government taxpayer? Because under the Indian Act, Indian Affairs, it’s the federal responsibility.

JH 1:03:09
A lot of things happen after the Federation, this business of the size of reserves, they wrangled over this for a couple of years. And finally, there was a missionary from Metlakatla. Man by the name of Duncan, an Anglican minister up there who suggested a compromise. That they establish a joint commission between the federal government and British Columbia. And this commission would go around to every Indian Band in the province. They would meet with them, they would consider how much land there is available? What the needs of the native population are? What are the needs of the white population? And they would to quote the orders and council, “fix and determine” reservations that would be there. So we're not going to get into any more formulas or arguing over how many acres is sufficient, but each case is going to be examined on its own merits. So this was done, the province appointed former Fur trader by the name of AC Anderson, as their representative. Federal government appointed another former Hudson Bay man, by the name of Archibald McKinley, as its representative. Sorry I got this wrong, McKinley was the provincial man, doesn't matter. They both agreed on a chair of this group, a man by the name of William [indiscernible] chair this commission, 1812 to what now, 1875, 1876 by the time it gets going. This reserve under took the goal across the whole province to decide what the size of these reserves should be. The only problem is, by the time the reserve got going up to Kamloops for example. Sproat, who wrote copious memos to Ottawa and everybody else. He was really concerned that the province was on the verge of a major Indian war. Because the native population, their reserves had already been arbitrarily reduced twice. And anyhow, the reserve got busy, they would send their recommendations in and then what happened? They were much too generous for the province, and so British Columbia would not accept them.

JH 1:06:30
Doesn't accept them. The province was complaining about the enormous costs involved in this. Saying that Indian affairs are a federal responsibility, should be the federal government paying for this commission. But, the province had already agreed to participate jointly and so after a couple of years of mulling, the Commission was cut down, Sproat himself operated until 1880, he carried on by himself from 1878 to 1880. By 1880 when he left, the province had not accepted one recommendation, they simply refused to ratify them or [indiscernible] them. And so instead, a change was made and Peter O’Riley, who was Joseph Trutches brother in law by the way, ended up as the chief reserve Commissioner. O’Riley was much less generous to the Indians than Sproat had been. And so, the reserves that he recommended reduced again in size, and this time, the province accepted most of these encourages. This went on over a period of time until federal provincial relations came to an impasse again during the Macbride era. And by the way, none of these reserves have been conveyed to Ottawa at this period. Finally, they decided in 1912 to establish another Indian Reserve Commission. This time there were five members headed by the former Chief Justice of the province of Saskatchewan,

JH 1:08:52
Usually referred to as the “McKenna McBride Commission”, the McKenna McBride commission went through the whole province once again and set and determined the size of reserves. Later population generally speaking, would have nothing to do with this final exercise. They raised the question of Aboriginal title because of British Columbia's objections to being involved in Aboriginal title, the Commission agreed that they would go ahead without reference to Aboriginal title. And they finally sent reserves, they reduced, they adjusted the boundaries of many of them, they actually increased the boundaries of a number in acreage wise. They added two reserves but value wise they reduced them by less than a third of the values. This was done again arbitrarily. And some of the big settlements that we've been hearing about in recent times have come because of what was essentially illegal activity on the part of the government. As this was going on, there are a couple of other things that are happening. In the Nass valley, could have been the Nisga’a, who are going to be the frontrunners in resisting this activity. Peter O’Riley went up Nass valley in 1881 I think it was, and found himself run off the territory. Beautiful transcripts of this meeting. And O’Riley explaining that the Queen is going to give them this much land, and here are the boundaries. And they said well, how can the Queen give us this much land? This is our land. She’s never sold it to us, she’s never given us more. When they surveyors came they were literally run off. 1887, the federal delegation bound to Victoria talked about Aboriginal title.

JH 1:11:45
Maybe 20 years later, they established the Nisga’a land committee. [indiscernible] another Anglican clergyman, a man by the name of O'Meara, who had been a lawyer for 20 years, then became a clergy. They hired him to take the Government of Canada. And they appealed to the Privy Council, the Judicial Committee of the Privy Council. Over respect for Aboriginal title. The only problem is that the Privy Council, Judicial Committee of the Privy Council, can only hear cases that are referred to it by the colonial governments. And the Canadian government was not about to bring this to the Judicial committee. And they kept saying you have to go to the Government of Canada first before there can be a reference to the Privy council. The Natives said, we're not going to go to the Canadian courts, we're suing them! And O'Meara, who was quite a [indiscernible] man apparently, he kept on persisting, made himself a host of enemies in Ottawa.

JH 1:13:13
As a result of the McKenna McBride Commission, for the first time in history, we start to have the native groups coming together. They established what was called the “Allied Council of Tribes”. They've been trying to do this ever since, it's been very difficult for the Native groups to come together because, as I said they had no kinship with each other. And yet, I think the whole history has been the government's, white governments have been playing off the divisions. Finally, the Government of Canada agreed to establish a joint committee of Parliament, the House of Commons and the Senate, to look into this question of Aboriginal title in British Columbia, which they did in 1927. And the committee after relatively short hearings, which the Native leaders from British Columbia they were making their case, the committee ruled that the Natives had not made their case. And as legal experts since have pondered over this now said the Committee did not say that Aboriginal title does not exist, they said they had not made the case for it. But as far as the Government of Canada was concerned, that was the end of the matter and the Canadian government at that point passed amendments to the Indian Act, making it illegal for Natives in British Columbia to pursue this matter any further.

JH 1:15:27
It is almost impossible to believe that Canadian government would ever do that. They made it illegal for these people to raise money to pursue this through the courts. They made it illegal for them to hire a lawyer. They made it illegal for a lawyer to act. And this after most of these people have seen now almost 100 years of government people coming out in good faith defining the reserves. Next generation comes out and says well you’re supposed to be here. A new commission comes out and says [indiscernible]. And finally, to enact the legislation which is going to shut them up forever. The other thing that's been happening of course at this time, beginning about the 1880s, the only way we're going to assimilate these people are going to be through an educational system. And so you establish Residential schools, take the children away from the parents. You break them from their culture, [indiscernible], and you put them into white schools. It’s the only way you’re going to make [indiscernible]. And we are hearing now what happened in Residential school systems.

JH 1:17:26
You know, you cut their hair. Physically beat them from using their Native languages. This is the ultimate course of power to assimilate these people. We have looked at countries like South Africa, without realizing...I grew up in this era, I don't think any of my people were aware of what we were doing to the Native populations. So what finally happened, I think what finally happened was pretty severe depression in the 1930’s, pretty severe war beginning in 1939. A lot happened to Canadian society. This is the period because of both the depression and the war, we developed a social safety net for Canadians. We started to look to the government in areas of education, health, pensions, whatever. This was a period and other things were happening, the world was beginning to shrink this was the beginning of the Commonwealth, becomes a multiracial [indiscernible]. This is a period, you remember, what was happening South of the border, the American civil rights movement. We went to war to make the world safe for a democratic way of life, and all of a sudden the contrast between what we were doing here and with our Native populations just became too much.

JH 1:19:31
We [indiscernible], and dominated by third world countries. And finally parliament was moved in 1950 to establish another commission. They hired a UBC sociologist, by the name of [indiscernible]. [indiscernible], on reserves and the parliament was finally shamed into amending the Indian Act again. To allow these people to pursue their rights. But the Native people had been saying, listen we're not talking about Native law here, in terms of our rights, not only Native law, we're talking about your law, your English common law that says we have rights. This is your court system, you haven't let us get into your court system. And again, I guess it was no accident that it was the Nisga’a who decided to press this, people have never given up,, I cannot imagine another group of people who have put up with the kind of treatment the Aboriginal population in British Columbia has without resorting to violence a long time ago. I can’t imagine any group of whites [indiscernible].

JH 1:21:15
So the Nisga’a decided, in 1967, they would send [indiscernible] to bring this to the Canadian courts. They didn't make it because of delays in the legal system, it took them a couple of years. And when they finally did get a chair, what happens? They end up with a kind of a hung jury, I guess. There were seven or nine, nine justices on the Supreme Court. They lost in the British Columbia Supreme Court, which they expected. It went to appeal, they lost there, it went to the Supreme Court of Canada. Four the justices said Aboriginal title exists in British Columbia, four of them said Aboriginal title has been extinguished through actions in the Colonial period. The deciding judge threw the case out on a technicality because law in British Columbia at this time was such that you could not sue the government without prior permission from the government which had not been obtained.

JH 1:22:50
From 1967 until this day, well some other things happened. 1968 Pierre Elliot Trudeau captured the minds of a lot of people. He was in [indiscernible], he had another White Paper. Can’t remember who it was at the time, but one of his ministers, was a man by the name of Jean Chertien. Decided the time has finally come to get rid of the Indian Act. To start afresh and proposed in this White Paper that they do just that, just scrap it. And was amazed by the kind of reaction the native people had, the Native people themselves surprised themselves when they were looking at the implications of this. And they said no way are we going to be treated on the same basis as the rest of Canadian society, and they began to realize that these were reserves. This may well be the last chance they have to retain cultural land. And so since then I think what’s been happening is it’s been a struggle to get rid of the Indian Act, but still preserve a sense of identity. Recapture languages which have been lost. Again the Nisga’a have been at the forefront on this I think, they are the first peoples in the Province that have [indiscernible] have their own school system.They have been precedents.

JH 1:25:17
The Native population has been undergoing enormous stresses and strains trying to decide what they should do, what kind of [indiscernible] to be urgently pursuing. The Nisga’a face very vigorous opposition from other Native groups, as did the group at Smithers, the Gitxsan. Because the others were afraid that we're going to lose the whole thing, just going off on themselves getting fed up and saying, look we're going to get a court ruling on this. What the courts I think have been doing for the last 10 or 15 years, because this is not an issue that can be settled by the courts. All my colleagues in law practice have been saying, getting these court decisions, one after the other, what the courts are saying this is a political issue and you've got to settle it politically. Courts can only say yes or no, what they need to do is to sit down and negotiate. And I think what happened in, well starting about 1986, was when the Piers island thing came up, the [indiscernible] people. Went to court and bought an injunction against Macmillan hotel logging on their lands, and when they bough they injunction they argued that the province of British Columbia is not competent to issue a tree farm license because Aboriginal title has never been extinguished. What the court said back then is that this is an arguable case, so the injunction against the [indiscernible] held.

JH 1:27:21
Then came the Gitxsan Wet’suwet’en decided to lay claims on their whole area. The most striking thing to me about the whole thing was listening to their pleas in court, and [indiscernible], I can take you back to the transcripts of the conversations of the Nisga’a, almost word for word what they were saying back then. [Indiscernible] 26 Indian bands brought a court injunction against the CNR for [indiscernible] the Fraser [indiscernible] on grounds that was a violation of their rights because of Aboriginal title. And Chief Justice [indiscernible] ordered [indiscernible]. Lawyers were pulling their hair out, any one of these cases will be the largest political case ever heard by the province of British Columbia. Finally what happened is they decided to take them out and hear them in series, because [indiscernible] and what has happened since then is [indiscernible], finally went to the government and said nobody's going to come into this province to turn the shovel until this thing is settled. So what's happened is that we've had this fight between Ottawa and British Columbia for years. I have some sympathy with the provinces position, this is the federal responsibility. I think what happened is the federal government chickened out in the 1870’s, and they backed away from extinguishing aboriginal title then. Because currently they're responsible, it still is their responsibility to do.

JH 1:29:35
British Columbia can’t do it. The trouble is British Columbia owns the land. The trouble is this article 13, the terms agreement. British Columbians have said, we are sticking by this. The trouble is who is paying the compensation after all of these years, it’s going to be the Ottawa taxpayers or the BC taxpayers. BC receives all the benefits, Ottawa gets none. And I guess [indiscernible], to finally agree [indiscernible], 25% of the costs. [indiscernible].

JH 1:30:51
Most people don’t realize that Native people living on reserves don't even own the reserves. This is land still owned by the Crown [indiscernible]. You cant get a mortgage, theres no collateral.
[Chatter and indiscernible questions]