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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

138_Jim-Hendrickson_Aboriginal-Land-Question.mp3

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20.02.2023

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Unknown Speaker 0:03
So I asked her why. She said that when he came out here, there was nobody. first sabbatical, he got right down to it and started today on average

Unknown Speaker 0:31
I'm very glad to be here. I really didn't know what to expect in terms of the kind of audience

Unknown Speaker 0:40
that I was thinking 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

Unknown Speaker 1:11
the people in the back especially Can You Hear Me If You Can, please wave or whatever?

Unknown Speaker 1:25
Actually, I realized when I was thinking about this, the title I had suggested to BB 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 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 and 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. 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 Nashville land treaty that has 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 that 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 as unique to British Columbia. There. There is not another example, anywhere in North America. That comparison 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. Law 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. 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 have 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 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. 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 but doesn't meet your language. And there are many different ways of looking at this or trying to decide the relationships of these languages. But what it means is that we have people who have been living here, even within the major ethnic groups, so 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 kick Willy houses, or in the Kootenays, the Prairie People who own flies,

Unknown Speaker 8:30
and cross the mountains every year. There'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.

Unknown Speaker 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. 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 exists. In all of Canada, there are slightly more than 2200 reservations that have been established. 16 128 of those 2200 are in British Columbia. Nowhere else in North America will you find this pattern of reserves Having said this, we also need to say that we're as 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. 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.

Unknown Speaker 11:42
Because British Columbia, was a separate colony when it entered Confederation with Canada. First time you went into Canada and 1871. What do you land, the Crown land of British Columbia, remained in the crown provincial, that 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 provenance. And so this is 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.

Unknown Speaker 13:35
Every British Columbia and I think knows, the most certainly, political issue you've encountered 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.

Unknown Speaker 14:04
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

Unknown Speaker 14:30
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 1851 Other exceptions 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. With those exceptions, British Columbia has not negotiated treaties with people.

Unknown Speaker 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 on treaty, negotiations and so on, relate to this concept of aboriginal title.

Unknown Speaker 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.

Unknown Speaker 17:42
That is the kings who were gone as representatives here. This means title to land. Under English common law can only be derived from the crown.

Unknown Speaker 17:57
The crown issues grants to land. Modern Times titled to land is normally conveyed by what is called Feed simple. Many of you are landowners 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. 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 a lamb that was held in the tail, under the feudal system would only be passed on to the eldest son. For land was held in fee simple which means that it's unrestricted and it can be sold to anybody that 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 if I had a blackboard here I 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 sell their land to the Crown

Unknown Speaker 20:33
Oh, how does this work out? In Tony all 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 like Topsy, as, as as silly said, in a paraphrase that I love we seem to have people comfort and people half of the earth in a seeming absence of mind. And when you start looking at different Tonio history, that really is this way you can try to classify tall buildings. It's impossible, they're all over the map. And Aboriginal policy is very much reflective of this kind of ad talking your way through. I mentioned the problems in New Zealand, in Australia, a sharp contrast to what happened in Australia and 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 16 107. And at that time, the Crown recognized that Aboriginal population had certain rights that has to be respected by in Englishmen, including rights to land. The Crown also reserved to itself, the right to deal directly with natives for the surrender of their land. 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 have 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. To no Governor shall allow surveys or issued 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 unseeded 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

Unknown Speaker 24:43
now the proclamation established a clear foundation for Land Policy in Canada pollinate in 1763 Nobody knew there was even land here in British Columbia question 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.

Unknown Speaker 25:32
In what becomes British Columbia, we start out with the colony, Vancouver Island was 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 planes 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 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 one a few. Much to the chagrin of the Hudson's Bay Company, who were hoping I'm 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 call on the deploy Office and that period was in, in or the government and that period was in the same kind of financial unwrinkled, 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 boat, 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. sold 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. And this is fundamental importance. What about the native population here? In fact, to grant on lands on the Hudson Bay Company was silent about the native population and confidential memo that was published by cabinet I believe, for the benefit of cabinet when they were discussing this branch 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. When the problem is that the company didn't know this was a confidential memo for capitalists purposes only. But what what the crowd is saying is that we press for this land writes that the the obligation is now on the company to extinguish title. Well, the company was a very formidable company when it came to the trade and can take on all competitors and to do. But when I got into the colonization business, this was something else again. And that did not go so well. When you start to think about really what's going on here, you'll have a 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 to name James Douglas, not only as the Chief of our for 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 for trade operations, but the other column, 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 column.

Unknown Speaker 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 headquartered in the Russian American company headquartered in Cisco, to supply them rather than getting their supplies from the Americans as part of a strategy to drive the Americans from the coast. And 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 was Richard Blanchard have had enough and he quit. And Hudson Bay Company at this point would recommend the Douglas to the Tony Law 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. That's the government 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, Fenchurch 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, the 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 serve a this land, we're going to have to extinguish aboriginal title. I don't know why Douglas. But he is an extraordinary man. It says something about letters crossed in the mail and mail took six months to come. And Hudson Bay Company was saying yes, you got as you begin now before we can do anything else, we bought to extinguish aboriginal title. 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 are living on can be regarded as wasteland and open for settlement. But what Douglass's letter sent, said when he was already in the mail, there's that we have to extinguish this title even after Douglas got the instructions. What he did was to meet with the various groups around Fort Victoria, really from soup to Sydney

Unknown Speaker 35:20
to negotiate treaties with them, and a copy of one here, very simple. I shouldn't have said treaties, there were agreements there in the archives form of agreement for the purchase of land. And the natives of Vancouver's Island.

Unknown Speaker 35:46
Douglass's problem was that this is quite an important undertaking.

Unknown Speaker 35:53
And he wasn't sure. Wanted to make sure that the right thing. And so

Unknown Speaker 36:00
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 there. And when the Hudson Bay Company got that, and they looked at this, which was in 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. No, we all men know all man, 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 101,800 and plant years 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 1801 blank. And that's what that was did. You fill these in 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 Nymo, they did the same thing. That's the only treaty that has not been found that 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.

Unknown Speaker 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 we 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. For him 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 happen 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

Unknown Speaker 41:24
what is the crown do here, but to establish another colony on Vancouver Island

Unknown Speaker 41:38
on Vancouver Island, James Douglas, I think had quite a what I would consider to be an enlightened view of Aboriginal peace people. His wife after all this happened in spent all of his his life in close contact with James Douglas, unlike most of the other colonial officials whose contemporaries 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 want him to spend a lot of time talking about what James Douglass's goal was or what his hopes were, he wants 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, the Indians allying with the British forces, and so, the proclamation was issued to guarantee protection to Indian people from white settled, providing this orderly way that their land should be settled. Second word is civilization was in the 19th century view most most European people saw natives as being uncivilized savages, read any of the literature, they talk about people. And so, protection, civilization, the key word is assimilation was thought that most people would become assimilate. But if we had time to look in detail at Douglass policy, we would see that what James Douglas and vision these reserves that were being that he established around Victoria, orderly places

Unknown Speaker 44:22
would keep the white salt. Irony 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

Unknown Speaker 44:42
so whatever else happened, they would always have their traditional village sites to fall back on. Could keep points out. But he did expect that they would take place in in society. Next factor, for example, that Aboriginal people would have to 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. And the successors to James Douglas, did not have the same kind of feeling. We can look at what Douglas did with the song GIS reserved in Victoria, where he set up agents who wanted to see this as a an economic machine that would generate income for the Portland Native population. And again, when this successors took over, this turns out to be something quite different. All right, we have the the Gold Rush occurring in British Columbia.

Unknown Speaker 46:50
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 rule. And that is to establish a crown pattern of after Sue on a crown colony is a colony that has been established. And you can't trust the native population wasn't the native population that they were thinking about it were all 25,000 American miners. 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 Trump. And, and 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 and inspection tour found out there were problems just above 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 up. There was no exchange, no treaties, or anything else, just the establishment of the reserve in Douglass's time, he also realized he's going to have a great problem on his hands here with a gold and so he issued instructions to the land agents that were established Douglas by the way, it 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 go 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, what land they're using for their villages where their villages where their berry patches? Were or their cedar grows, where their kelp beds, their berry patches, their cemeteries, whatever. Let them show you where they are. You mark them off and reserved. And this process started happening. James Douglas, who was not a good administrator I've 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. Joseph trash looks at the situation says, This is unreal. We've got reserves that are established here in the lower Fraser Valley or especially around camera Kamloops, for example. And commissioners had been up there. The Indian said, What's your land they said 10 miles north and 15 miles east. preserved in the Fraser Valley. All of the crush of people coming in one of this land that had been marked as reserved. Most of these haven't been surveyed. And, like a long story short, what happened to trudge recommended that these commissioners have obviously misunderstood Douglass instructions, he could not possibly have intended them to have this much land. And so we need to we need to redefine them. 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. jurisdiction of British Columbia was extended over vancouver island lost all of our institution she had our own legislature, elected members British Columbia never had done during the colonial period. So what happens is that by the end of the period, Joseph Troche, is also saying, you know, those agreements that James Douglas had signed with had nothing to do with with aboriginal title. They were peace treaty. And at this point, British Columbia decides to enter Confederation 1871. Three people were appointed to go to Ottawa to negotiate terms of Confederation. And what in fact, the key player was Joseph. During these negotiations, something very interesting happened. Nothing said about Aboriginal people in the discussions in the BC legislature. But when the agreements were drafted

Unknown Speaker 53:31
a clause number 13 was inserted in this during the negotiations in Ottawa, I still don't know who was responsible for for the wording of this. But it is critically important that as we read it, you will see it's also somewhat disingenuous. 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 is, it has hitherto been the practice of the British Columbia government, to appropriate for that purpose, shall from time to time be conveyed to the local government, by the local government to the Dominion government interest On the use and benefit of the Indians. So this has to be there, because the federal government has no land. So what British Columbia is agreeing to when it comes into Confederation is to make a land available for the reserves for these groups were reserves that had not yet been established. 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. 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 problems since they are minuscule compared to what had been done in the province, they've already been reduced. Whereas in the prairies, for example, and they 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 were

Unknown Speaker 57:00
moving into. That's unreasonable to suggest the federal government looks at this and said 10 acres for these people this is unreasonable. You want more land as much as you want. But you pay it pay us for 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 to the Lord by the local government of the government.

Unknown Speaker 57:41
That's our bargain. We only said we would turn over that much land the same that we had been using in the in the

Unknown Speaker 57:57
auto I thought this was outrageous. Thought it was even more outrageous. When touch informed them that British Columbia had never recognized aboriginal title to the land. These agreements that Douglas had made were some flew for peace treaty

Unknown Speaker 58:28
Allah says well

Unknown Speaker 58:34
you can't sell land until aboriginal title has been extinct. You see, he's been doing it all of the landowners in British Columbia

Unknown Speaker 58:46
have bought land without aboriginal title. What kind of chaos is this gonna create? All of a sudden, you have to extinguish aboriginal title

Unknown Speaker 59:03
in British Columbia. So this will be our guest. In charge of Indians, the trustee ship and management of the lands reserved for their use and benefit shall be assumed by the Indian government.

Unknown Speaker 59:22
This land shall be conveyed in trust for the use and benefit of the Indians on application. You This is the crux of Ottawa discover. Now, their responsibility for extinguishing aboriginal title in British Columbia they get no benefit from British Columbia has taken the position that there is no Aboriginal type If there isn't has been extinguished are three ways that aboriginal title can be extinguished. One is by conquest. by war, you defeat a people which will, under English common law will extinguish the aboriginal title. But this might happen. A second was by purchase, which is the usual way, by a treaty, some exchange or whatever can be $1, to make legally binding hadn't happened. The third way is by legislation, you can simply pass a law saying aboriginal title does not exist, and it's been extinguished.

Unknown Speaker 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.

Unknown Speaker 1:01:21
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 formula period, not one mention of aboriginal title. and British Columbia. From that time, until November's 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.

Unknown Speaker 1:02:37
What the whole fight has been about is who's gonna pay this going to be British Columbia taxpayer? Or is it going to be the federal government taxpayer? Because under the Indian Affairs, the federal responsibility

Unknown Speaker 1:03:08
a lot of things happen after Federation, this business of the size of reserves wrangled over this for a couple of years. And finally, there was a missionary from Metlakatla. Mandel the name of Duncan, lay minister up there who suggested a compromise. They establish a joint commission between the federal government 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 perpetrator by the name of AC Anderson, as their representative federal government appointed another former Hudson Bay Mandel, the name of Archibald McKinley, as its representative McKinley was the provincial man doesn't matter. They both agreed on a chair of this

Unknown Speaker 1:05:00
A man by the name of mountain Spro. to chair this commercial now 1875 76 By the time it gets going this reserves under the whole province decide what the size of these reserves should be. The only problem is, by the time they're reserved by going up to Campbell's for example. Sproat, who wrote

Unknown Speaker 1:05:44
copious memo to Ana when everybody else he was really concerned that the province was on the verge of a major Indian because the natives population who had been there, reserves had already been arbitrarily reduced twice. And any other reserve got busy, they would send their recommendations in and then what happened they were much too generous for the province of British Columbia wouldn't want accept

Unknown Speaker 1:06:27
doesn't accept

Unknown Speaker 1:06:34
the province was complaining about the enormous costs involved. Saying that Indian affairs or a federal responsibility should be the federal government paying for this commission for the province had already agreed to participate jointly and so after a couple of years of mourning, the Commission was cut down, stroke himself awkward Until 70 Until 88, he carried on by himself from 78 to 88. In 81, he left the province and not accepted one recommendation, they simply refuse to ratify them. And so instead, a change was made and federal Riley Johnson project rather law, by the way, ended up as the chief reserve Commissioner Riley was much less generous to the Muslim Sproat has. And so, reserves that he recommends reduced again 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 province of Saskatchewan,

Unknown Speaker 1:08:52
usually referred to as the McKenna McBride Commission, the McKenna McBride commission went through the whole problems once again and set and determined the size of reserves. Later population generally speaking, would have nothing to do with this final exercise

Unknown Speaker 1:09:26
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 resort reserves reduce they adjusted the boundaries of many of them, they actually increase the boundaries of a number in acreage wise, they added two reserves but value wise they reduced them by less than one. 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 mass Valley in Nashville, who are going to be the frontrunners in resisting this activity Peter Riley went up he won I think it was upon himself to run off the territory beautiful transcripts of this rallies explaining that the cleaners only give them this much land. Gonna be the bombers and I say well, how can you give us this land this is our land. She never stole it from us. We've never sold it number one, the surveyors paperwork 1887 federal delegation. Aboriginal.

Unknown Speaker 1:11:45
20 years later, they establish the national land it's all another anyone can become a lawyer for 20 years and hired to take the Government of Canada. And they appealed to the Privy Council, the Judicial Committee of the Privy Council. Over respect for Aboriginal women 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 this committee. And they kept saying you have to go to the Government of Canada first before that can be referenced from the council. And aliance said, we're not going to go to the Canadian courts. We're suing them. And Amira, who was quite a question, man, apparently, he's kept on persisting, made himself most enemies in Ottawa

Unknown Speaker 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, establish what was called the Allied Council of tribes. They've been trying to do this ever since it's been very difficult for lineitem 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.

Unknown Speaker 1:13:52
Finally, the Government of Canada agreed to establish a joint committee of the House of Commons in the Senate to look into this question of aboriginal title, which they did in 1927. And the committee after a relatively short hearing, which Native leaders from from British Columbia, they are making their case, the committee ruled

Unknown Speaker 1:14:36
that the natives had not made their case. And as legal experts since have pondered over this now, the committee did not say that aboriginal title exists,

Unknown Speaker 1:14:50
said they had not made the case. But as far as the Government of Canada was concerned If that was the end of the matter and the Canadian government at that point passed amendments to the making it illegal for them to pursue this matter and

Unknown Speaker 1:15:27
almost impossible Canadian legal 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

Unknown Speaker 1:15:54
this after most of these people have seen now almost 100 years of governments people coming out in good faith defining the reserves next generation is supposed to be here a new commercial

Unknown Speaker 1:16:19
and finally to an act the legislation which is going to shut them up now the thing that's been happening of course at this time

Unknown Speaker 1:16:34
beginning about the 1880s The only way we're going to assimilate these people are going to be through an educational system established conventional schools take the children away from birth from from their cultural activity into what where you're gonna make what we are hearing now what happened on your residential school systems

Unknown Speaker 1:17:26
physically read from using their native languages this is the ultimate course of power to assimilate.

Unknown Speaker 1:17:43
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

Unknown Speaker 1:18:12
so what finally I think what finally happened was pretty severe depression pretty severe

Unknown Speaker 1:18:27
society this is the period as far as both the depression and the war I think so social safety net for Canadians. We started to look to the government in areas of education, health, pensions, whatever this was a variable and other things were happening the world was beginning to shrink this is the beginning of the Commonwealth becomes a multiracial This is a period you remember what was happening assaulting the American civil rights we went to war to make the world safe

Unknown Speaker 1:19:15
all of a sudden the contrast between what we were doing here

Unknown Speaker 1:19:31
finally parliament to establish a commission they hired a sociologist.

Unknown Speaker 1:19:59
Well To allow these people to pursue their

Unknown Speaker 1:20:14
native people I'm saying is that we're not talking about Native law. In terms of our rights, not only we're talking about your law, your English common law that says we have rights. This is your heart you haven't let us get into your reports.

Unknown Speaker 1:20:40
And again, I guess it was no accident. The conditional silent 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 has without resorting to violence

Unknown Speaker 1:21:15
so I decided to

Unknown Speaker 1:21:27
bring this to the community. That didn't make it because of delays in the legal system 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. What's my nine justices on the Supreme Court, they went to the last in the British Columbia Supreme Court, which they expected went to appeal they lost their they went to the Supreme Court of Canada

Unknown Speaker 1:22:07
for the justices said aboriginal title exists in British Columbia four of them said aboriginal title has been extinguished through actions in the formula

Unknown Speaker 1:22:29
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 from

Unknown Speaker 1:22:50
67 until

Unknown Speaker 1:22:57
1968 capture in mind

Unknown Speaker 1:23:24
was a member of treachery

Unknown Speaker 1:23:31
decided the time has finally come to get rid of the Indian Act start afresh and proposed in this white paper but they do just to scrap

Unknown Speaker 1:23:51
was amazed by the kind of reaction native people themselves surprised themselves when they're looking at

Unknown Speaker 1:24:12
certain bases we're not

Unknown Speaker 1:24:21
and we began to realize what may well be the last chance to retain cultural sense that I struggle to get rid of, but still reserved. Sites reCAPTCHA languages which have

Unknown Speaker 1:24:59
been All

Unknown Speaker 1:25:17
right a population undergoing enormous stresses and strains trying to decide what they should do, what kind of a slap in

Unknown Speaker 1:25:29
the face very vigorous opposition from other native groups as to the group of smugglers it gets because the others were afraid that we're going to lose the whole thing, just going off on themselves getting

Unknown Speaker 1:25:53
fed up and saying, Look, we're going to what the courts I think, in the last 10 or 15 years because this is not an issue

Unknown Speaker 1:26:07
and of course, all my colleagues have been saying one after the other what the courts are saying this is a political issue and you've got to settle.

Unknown Speaker 1:26:22
Courts can only say yes and what they need to do is to sit down and negotiate and I think what happened strolling about Thailand

Unknown Speaker 1:26:47
junction Macmillan logging on their lands they argue that the province of British Columbia is competent to issue a tree farm license because no title isn't what the court said back then this is against then came the get Scanlon decided to lay claim to their whole area the striking things to me about whole thing was listening to their peers and maybe I can take you back to the transcript so many discussions with almost word for word what they were saying back

Unknown Speaker 1:27:51
cm 26 A court injunction against the CLR for cracking the Fraser

Unknown Speaker 1:28:03
River on grounds that was a violation of their rights because of aboriginal title ordered differently thrown into the hopper with the other two more pulling their hair any one of these cases will be the largest ever finding one half happened was we decided to take them off considerably the first one

Unknown Speaker 1:28:55
over nobody's going to come into this province to turn the shovel until and so what's happened is 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 happens is the federal government chicken bro extinguishing aboriginal title they're responsible

Unknown Speaker 1:29:35
British Columbia

Unknown Speaker 1:29:42
British Columbia Land. The trouble is this article 13. The terms of British Columbia in some sense. We are sticking by Trouble is who is paying the compensation after all the taxpayer receives all the benefits

Unknown Speaker 1:30:51
realize people moving on

Unknown Speaker 1:31:09
to the mortgage collateral

Unknown Speaker 1:31:50
subject decided to think back to that example a

Unknown Speaker 1:32:01
really good example

Unknown Speaker 1:32:07
I started to make some notes about how I got his first five pages written notes everything was negative

Unknown Speaker 1:32:28
terrible history is reprehensible how the law has been used against people I have no idea

Unknown Speaker 1:32:42
the question I have for you was regarding the kind of commission you mentioned the value was it reduced by value

Unknown Speaker 1:33:24
and the value of what was more than what has happened

Unknown Speaker 1:33:39
going to court for compensation for the West

Unknown Speaker 1:33:59
this was