Category Archives: Comprehensive Claims – Policy and Protest

Delgamuukw v. The Queen

11 Monday Dec 2017

Posted by in aboriginal title, BC treaty process, Comprehensive Claims - Policy and Protest

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20 years later, Gisdayway family produces searing report on a legacy of dispossession and division following the court ruling that Gitksan and Wetsuwet’en title survives.

On December 11, 1997, the Supreme Court of Canada ruled that British Columbia has not extinguished Gitksan and Wetsuwet’en title and rights. The watershed case collected essential elements of previously recognized Aboriginal rights and articulated a clear sum of those parts: Aboriginal title and rights have not been extinguished by the province; Aboriginal title is a real, economic interest in the land; and Aboriginal title affords the owner the right to use the land and choose what it can be used for.

After December 12, 1997, thousands of column inches rolled off the presses of BC’s daily newspapers in protest. Everyone who made a living in BC was making it off the back of resources extracted from non-treaty, unceded and unsurrendered Indian land, and they were not about to let a legal ruling interrupt that. Farmers, loggers, exporters, truckers and all the businessmen in between drew up their position much in the same way US President Andrew Jackson did, when Justice Marshall said the Cherokee owned their homelands: The judge has made his ruling, now let’s see him come and enforce it!

Well, it wasn’t enforced any more effectively than in Georgia, where Jackson marched the Cherokee away along the Trail of Tears.

Twenty years of unabated logging and mining and development later, the ruling has informed a handful of cases that advanced the legal character of Aboriginal rights – at least, Canada’s definition of those rights. But what has changed on the ground? What is the real legacy of Delgamuukw, when eighty cents on the BC dollar comes directly from extractive industries, and the Indigenous are as poor as ever?

Chief Na’Moks, a Chief of the Tsayu (Beaver Clan) of the Wet’suwet’en, commented on the anniversary of Delgamuukw Day:

When the SCC overturned BC’s Court Decision, we were elated, but that was short lived as the decision has been continually ignored. We hoped that BC and Canada would uphold the Ruling, but they, and industry, chose to “Bury their Heads in the Sand” and pretend it did not apply to them. Continual approvals of Proposed Projects have proven this to be a fact.

According to Ron George, Wet’suwet’en of the Gisdayway lineage, destitute are the grandchildren of those Chiefs who sacrificed a decade of their own lives to protect their lands and bah’lahts – hereditary governance system – in the Canadian courts. That, and the fact that even the Supreme Court of Canada is no match for the governments’ insistence that Indigenous peoples will be ruled according to the state’s convenience, is the subject of his academic report: YOU’VE GOT TO PADDLE YOUR OWN CANOE.

At the time of the trial in BC Supreme Court, 1987 to 1990, George was president of the United Native Nations, based in Vancouver. Urban Gitksan and Wetsuwet’en raised funds to support the cause, and UNN offices housed UBC law students supporting their legal teams when the trial was moved to Vancouver. George, along with most of his family, did not have Indian Status. Gisdayway, the leader of their house, refused to leave home on his ancestral lands and move to the Indian Reserve. So fervent was his refusal that the early-20th-century Indian Agent concerned simply, unilaterally, enfranchised Gisdayway – Thomas George, and his wife Tsaybaysa – Mary George. His home was registered as a pre-emption. Enfranchisement was a Canadian torture device designed to further the destruction of Aboriginal nations, creating “Non-Status Indians” who could not live on Indian Reserves nor participate in any of their business, nor exercise Aboriginal rights.

They still can’t, in spite of the fact that the Supreme Court of Canada ordered a new trial into the Gitksan and Wet’suwet’en complaint to better articulate:

that the common law should develop to recognize aboriginal rights (and title, when necessary) as they were recognized by either de facto practice or by the aboriginal system of governance.

– Delgamuukw v. British Columbia, 1997 SCC, at 159

The new trial was never held. A combination of factors must have interfered: the financial cost – the three year trial, then the longest in Canadian history, came in at $23million; the cost in lives – a number of Chiefs and Elders died during the trial of stress-induced strokes and heart attacks, one of the laments in PADDLE YOUR OWN CANOE; and that the people believed their vindication at court would be enough to force the province to deal fairly.

The Delgamuukw case can certainly be understood as the highest colonial court’s check on a province that never bothered to make treaties with Indigenous Nations, but the machinations of colonialism in British Columbia are so grizzly. As McEachern J. explained the colonizer’s view at the time, in his 1991 ruling on the trial in BC Supreme Court: no Aboriginal title or right could survive the presence of British subjects and the operation of their laws in this place.

 

The trial and the 1991 BC Supreme Court ruling

On March 8, 1991, the BC Supreme Court ruled against 71 Houses of the distinct Gitksan and Wet’suwet’en nations, in their attempt to prove sovereignty and jurisdiction in their homelands. The ruling was a devastating event. “It was the one day in my life that I was going to quit the practice of law. I just felt I had misled 69 Chiefs and hundreds of people to believe there was some kind of justice in this country,” Peter Grant, one of the plaintiffs’ lawyers, later said of the ruling.

71 Chiefs had stood together to launch the case against The Queen and see it through the courts over a seven year period. They decided the first Chief named, so the case would carry his name, would be Delgamuukw. His position at home was that of the Chief who brings all the other Chiefs together after a day of discussion and debate.

The first words spoken in the trial were this:

“My name is Gisdayway and I am a Wet’suwet’en Chief and a plaintiff in this case. My house owns territory. Each Wet’suwet’en Chief’s house owns several territories. Together we own and govern Wet’suwet’en territory.”

Chief Delgamuukw, Gitksan, spoke next:

“For us the ownership of territories is a marriage of Chief and land. Each Chief has an ancestor who encountered and acknowledged the life of the land. From such encounters come power. The land, the plants, the animals and the people all have spirit and they all must be shown respect; that is the basis of our law.”

The case was launched in 1984, amid blockades against logging and a Gitksan blockade of the CN Rail line, which eventually had forty trains backed up on either side and strangled off the northern BC port. Direct action was a second-last ditch attempt to stop the clearcutting that was bankrupting the land-based peoples, as no legal avenue was open and the governments were not negotiating circumstances around the total devastation of the peoples’ natural wealth.

A documentary film from the time, “Blockade,” by Nettie Wild, captured the moment when RCMP are denied entrance to the Gitwangak Indian Reserve and directed to proceed along their “so-called right of way” – the train tracks. There on the rails the police read out an injunction for the train blockaders’ removal and Art Loring, Eagle Clan of Gitksan, standing in the middle of the track, replied:

Pointing to a very old totem nearby: I’d like to draw your attention to that pole there. Those poles tell us we’re right. We own this land; not the court, not the province, not the federal government. That’s why we do this, because we have a right to. And your courts come in and take us away because you think you have a right. We don’t agree. We’ve lived here far longer than you guys have.

My name is ten thousand years old. My wife’s name is twelve thousand years old.

The last ditch was to sue The Queen for recognition of their sovereignty and jurisdiction. Between 1987 and 1991, the trial encompassed 374 days of argument and evidence: 318 days of testimony. There were 61 witnesses; 53 territorial affidavits; 23,000 pages of transcript evidence at trial. The Elders brought forth their way of life and presented it, through translators, to the court. Gwis Gyen (Stanley Williams), for example, said this:

All the Gitksan people use a common law. This is like an ancient tree that has grown the roots right deep into the ground. This is the way our law is. It’s sunk. This big tree’s roots are sunk deep into the ground, and that’s how our law is.

The results of the litigation were immediate, terrifying and violent. Logging in the territory accelerated. Native school children in Hazelton and Moricetown were beaten and dumped in ditches, informed by their white attackers that “this is for the land claims!”  And 400 pages of written reasons, reminiscent of 19th century colonial logic, were afforded by the presiding judge, Alan McEachern.

Chief Justice McEachern, as he was then, was not circumspect about his contempt for the plaintiffs. He failed to see how the presented histories, maps, villages, house posts, clan system or hereditary titles, demonstrated any sort of ownership or identifiable governance. The province of BC argued,

“Clan membership is even less helpful as a way of identifying the membership of the society of Gitksan. A Clan is not a corporate body. Clan membership is a way of lining people up at Feasts, of determining who is host and who is guest, and it is a way of organizing a rule of incest.”

McEachern dismissed the Elders’ oral histories. In his reasons for dismissing the plaintiffs, he described them as “vagrants” whose lives were “nasty, brutish and short.” Peter Grant put it this way:

It was an opportunity lost. The man who heard the case as the judge did not have the capability of understanding or hearing what was being said to him.

 

“Treaty process” follows denial of rights

A few months later the report of the BC Claims Task Force was released, and, without a hint of irony, the BC Treaty Commission was in business a year later – with the express purpose of negotiating the extinguishment of Aboriginal rights. A paradox to be sure, since the province’s Supreme Court had just decided there was nothing to negotiate.

This move repeated the governments’ response to the Calder decision of the Supreme Court of Canada in 1973. There, three judges reasoned that the Nisga’a title to Nisga’a lands had never been extinguished. Although the case was dismissed as inconclusive – three other judges disagreed and the seventh refused to rule – it was the first time Aboriginal title had won any judicial support at all. Calder was immediately followed by the introduction of the Comprehensive Claims Policy: a mechanism by which Aboriginal rights, including land rights, would be negotiated away before they were acknowledged as such. The Nisga’a engaged in that mechanism, along with four other “test cases” from across Canada.

It was during this time, at least by 1997, that the Supreme Court of Canada decided Aboriginal title was a form of Aboriginal right. This, they said, protected Aboriginal title under the Constitution of 1982, Section 35, where, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Judicial definition of these rights has progressed along a marked departure from the Indigenous position that Aboriginal rights flow from Aboriginal title, or, what Indigenous peoples meant when they said “Aboriginal title” does not seem to be the same thing that Canadian judges mean when they use the phrase. Indigenous peoples, for instance, don’t seem to agree that their title can be infringed as required by Canada.

The Supreme Court’s reasoning in demarcating a roadmap to Aboriginal title perpetuated fundamental colonial constructs that are anathema to reconciliation. The judges repeated the problematic notion that aboriginal rights are sui generis – a Canadian invention to mystify Indigenous property rights and attach an “inherent limit” on Aboriginal title. And the judges continued to rely on the idea that Great Britain gained sovereignty over the west in 1846 – as they pronounce to this day – simply because Britain had made treaty with every other European power that had previously expressed interest in the area.

In court, the Gitksan and Wet’suwet’en Chiefs categorically rejected the statement of British sovereignty over their lands. Unfortunately, they had given their question over to the jurisdiction of a BC court in the first place. That is the kind of conundrum Indigenous Peoples are in: if they go to a Canadian court for legal recourse against Canada, they will find a judge who is Canadian. It’s an obvious conflict of interest which has resulted in widespread Indigenous appeals to third parties out of the state, to the Inter-American Commission on Human Rights, and to United Nations treaty bodies and Special Rapporteurs.

 

DISC – then and now

In 1997, the Supreme Court of Canada overturned several of McEachern’s decisions and routed his reasons so that they could never be used again.

The next day, the front page of The Vancouver Sun newspaper featured a huge picture of Edward John, Chair of the First Nations Summit, stating his expectation that the ruling would revolutionize the state’s negotiating mandate within the BC treaty process. The ruling had said, after all:

Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures.  The protected uses must not be irreconcilable with the nature of the group’s attachment to that land.

Surely selling 98% of Aboriginal title land to the state, to be developed and parceled off as fee simple title, was a use “irreconcilable with the nature of the groups’ attachment to that land.” But that was about to become the blueprint for engagement under the BC Treaty Commission. The Nisga’a Final Agreement, negotiated under the Comprehensive Claims formula of 1974, was ratified in 1998 and came into law in the year 2000.

Against the First Nations Summit’s suspended disbelief, a group of Indigenous leaders formed to propose a bridge between the Gitksan/Wet’suwet’en ruling and Aboriginal rights on the ground: the Delgamuukw Implementation Steering Committee. “DISC” attempted to gain traction with the Assembly of First Nations and the federal government, to hammer out practical ways and means for Aboriginal peoples to benefit from the ruling. But the initiative was supplanted by an exploratory committee that eventually resulted in the First Nations Governance Institute.

The 1997 decision did not change the federal government’s 1974 policies concerning negotiated extinguishment, which is now referred to as “modified rights” and includes a First Nation’s indemnification of the state for “all past harms,” in the BC treaty process. Robert Nault, as Minister of Indian Affairs in 1999, stated that Canada wouldn’t do anything to alter its “flagship process,” the “made in BC” answer to treaty settlement (and renegotiation) across Canada. Ten years later, Minister of Indian Affairs Chuck Strahl stated that the BC Treaty Commission was not a rights-based approach. In 2009, three years of work by a Chiefs Task Force working with government negotiators at a Common Table reached a final impasse in attempts to bring treaty negotiating mandates up to a minimum that could be seen as equivalent to Aboriginal rights already won in Canadian courts.

Last month, the federal government announced a new sort of DISC: the Department of Indigenous Services, Canada. The Department of Indian Affairs (also known as INAC, AANDC, etc.) has been cleaved in two under the leadership of Trudeau 2, separating land claims from the administration of Aboriginal-specific (ie, underfunded) works and programs like health, education and welfare. The new DISC refers to the latter, while the iconic Canadian “Indian land question” will be split off into version 3.0 of the Comprehensive Claims Policy / BC Treaty process / post-Tsilhqot’in decision… which apparently does not have a name yet, according to government press releases, but will be managed by a new Ministry under Carolyn Bennett: Crown-Indigenous Relations and Northern Affairs.

 

Cases building on Delgamuukw

In Haida, 2004, the Supreme Court ruled that government agents had a duty to consult and accommodate Aboriginal peoples whenever they contemplated action, such as resource licensing, which might impact Aboriginal title – proven in court or not. The ruling relied on the definition of Aboriginal title defined in Delgamuukw.

The legal brain trust of the colonial state has diverted whatever relief that 2004 SCC ruling might have offered into dissipating channels of “consultation” and “accommodation,” through such mechanisms as Forest and Range Agreements and other revenue sharing agreements. Thus, Aboriginal peoples attempting to benefit from that legal decision have the option of signing off that their economic interests have been accommodated – to mobilize Forest Resource Management Plans, sometimes as yet unwritten – for a paltry per-capita sum. Instead of spending a decade in court, or watching business go on as usual. It’s a provincial scheme sculpted around the lowest common denominator that meets the government obligation to be seen to accommodate economic interests in Aboriginal title.

In 2007, the William case at the BC Supreme Court resulted in a preliminary ruling for a Declaration of Aboriginal title in Tsilhqot’in territory. Seven years later, that case resulted in the first ever declaration of Aboriginal title in Canada, at the Supreme Court of Canada. The case followed the method of proving Aboriginal title which was defined by the Delgamuukw case.

Jack Woodward has been legal counsel for the Tsilhqot’in since the 1980s. He commented on today’s anniversary and what might happen next:

The next step is obvious to me, but perhaps that is because I am a lawyer who thinks constantly about the remedies that are available within the legal system.  With Delgamuukw and Tsilhqot’in, and many other decisions, the courts have opened their doors to Aboriginal people to use the powerful tools found in Section 35 of the Constitution – Aboriginal title, Aboriginal rights and treaty rights.  These are some of the most powerful tools known to our legal system.  They are there to be used.  I believe that the use of those tools is as full an answer as we can ever expect to the questions of decolonization.   In the 20 years following Delgamuukw, Aboriginal people have been very restrained about the use of the courts to seek the available remedies.

According to Ron George’s new report, the governments have found even better ways to get cooperation for resource extraction and development: funding elected Band Council Chiefs to attend the Hereditary Chief feasts – where national business is done; and even funding the purchase of traditional positions within the Feast Hall. The government’s licensing bureau ensures that no Hereditary Chief or his family can avail themselves of their own natural wealth on the land base, by recognizing only the authority of offices which conform with Indian Act / Band Council modes of operation. This action is, in itself, the most fundamental exercise of bad faith on the part of Canadian governments – although the examples are many and chilling – in the legacy of Delgamuukw.

Those three syllables will resonate in the annals of Canadian history forever:                dell-gah-MOOQU. And what will this name call to mind? That Al McEachern got paid. That Indigenous Peoples will never stop fighting for their right to exist as a people, even when the colonizer’s government ignores its Supreme Court. That Canadian indifference to law is a matter of global significance.

In, YOU’VE GOT TO PADDLE YOUR OWN CANOE, Ron George notes the following legacy:

Although some people call the Indian Act an artificial barrier, Atna feels that barrier is very real and is manifested by these attitudes toward us when we ask questions they are unable to, or choose not to, answer. “At one traditional meeting, a chief told one of our family, ‘Well, you should be so fortunate that we allowed you back on reserve’. That was in a Wet’suwet’en traditional meeting. …the whole purpose of the court case was to address that and try to move it away…get away from that. We hang onto it. [our people] hang onto it because it’s a power base…and there’s authority that goes with it.” (Atna / Brian George)

The process may be working for other people, but that’s for them to say. … Lands and resources are being negotiated away, access to our traditional territories are diminishing through resource development, rights are taken away that are entrenched in the constitution and that are recognized in Delgamuukw-Gisdayway 1997. The rightful hereditary people who have rights and title to the land are not being consulted. Consulting with the wrong people is a fast track strategy to resource development, and a resource grab for the ‘sell-outs.’ We need to survive in the new economy and are by no means looking to stop progress, but it’s got to be done in a respectful manner so our kids and grandkids…..We have to survive. We survived thousands of years. We’re going to continue to survive. Well, we have to have a say in it. (Greg George)

What is the legacy of Delgamuukw v. The Queen? Earlier this year, a bronze statue of the late BC Chief Justice Allan McEachern, who died in 2008, was installed in the Great Hall of the Law Courts in downtown Vancouver. And suicide among the youth of Indigenous Nations occupied by Canada outstrips the national average by eight times.

 

References:

You’ve Got to Paddle Your Own Canoe: The effects of federal legislation on participation in, and exercising of, traditional governance while living off-reserve, by Tsaskiy (Ron George), Department of Educational Psychology and Leadership Studies, University of Victoria, December, 2017

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

Colonialism on Trial: Indigenous land rights and the Gitksan and Wet’suwet’en sovereignty case, Don Monet and Skanu’u (Ardythe Wilson), New Society Publishers, 1992

North at Trent 2015 Lecture Series with Peter Grant, youtube, by TrentFostCtr, 2015

And special thanks to Chief Na’Moks, Wet’suwet’en, and Jack Woodward for fielding a few questions about the impacts of the case.

Living Treaties, Lasting Agreements. 1985

11 Tuesday Jul 2017

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This book, produced by the federal government, is now very hard to find.

It was written after the 1982 Canadian Constitution Act had been formalized, but before the failure of the First Ministers Conferences to implement a meaningful “Section 35” – where Aboriginal and treaty rights are recognized and affirmed. This is possibly the single most candid publication the Canadian government has produced concerning Indigenous rights, and it admits a lot of Indigenous rights which have disappeared from the federal discourse since the failure of Canada to legislate implementation of Section 35.

Comprehensive Claims – policy & protest

CLAIMS OF THE ALLIED INDIAN TRIBES, B.C. 1919

06 Saturday Sep 2014

Posted by in Comprehensive Claims - Policy and Protest, Indigenous Declarations

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CLAIMS OF THE ALLIED INDIAN TRIBES, B.C. November 12, 1919

 

APPENDIX A

STATEMENT OF THE ALLIED INDIAN TRIBES OF BRITISH COLUMBIA

FOR THE GOVERNMENT OF BRITISH COLUMBIA

PART I. – GENERAL INTRODUCTORY REMARKS

The Statement prepared by the Committee appointed by the Conference held at Vancouver in June, 1916, and sent to the Government of Canada and the Secretary of State for the Colonies, contained the following:

The Committee concludes this statement by asserting that, while it is believed that all of the Indian tribes of the province will press on to the Judicial Committee, refusing to consider any so-called settlement made up under the McKenna Agreement, the Committee also feels certain that the tribes allied for that purpose will always be ready to consider any really equitable method of settlement out of court which might be proposed by the Government.

A resolution, passed by the Interior Tribes at a meeting at Spence Bridge on the 6th of December, 1917, contained the following: –

We are sure that the Governments and a considerable number of white men have for many years had in their minds a quite wrong idea of the claims which we make, and the settlement which we desire. We do not want anything extravagant, and we do not want anything hurtful to the real interests of the white people. We want that our actual rights be determined and recognized. We want a settlement based on justice. We want a full opportunity of making a future for ourselves. We want all this done in such a way that in the future we shall be able to live and work with the white people as our brothers and fellow citizens.

Now we have been informed by our Special Agent that the Government of British Columbia desires to have from us a statement further explaining our mind upon the subject of settlement, and in particular stating the grounds upon which we refuse to accept as a settlement the findings of the Royal Commission on Indian Affairs for the Province of British Columbia, and what we regard as necessary conditions of equitable settlement.

In order that our mind regarding this whole subject be understood, we desire first to make it clear what is the actual present position of the Indian land controversy in this Province of British Columbia.

Throughout practically the whole of the rest of Canada, tribal ownership of lands has been fully acknowledged, and all dealings with the various tribes have been based upon the Indian title so acknowledged.

It was long ago conceded by Canada in the most authoritative way possible that the Indian tribes of British Columbia have the same title. This is proved beyond possibility of doubt by the report of the Minister of Justice, which was presented on January 19, 1875, and was approved by the Governor General in Council on January 23, 1875. We set out the following extract from that report:

Considering then these several features of the case, that no surrender or cession of their territorial rights, whether the same be of a legal or equitable nature, has been ever executed by the Indian Tribes of the province – that they allege that the reservations of land made by the Government for their use have been arbitrarily so made, and are totally inadequate to their support and requirements and without their assent – that they are not averse to hostilities in order to enforce rights which it is impossible to deny them, and that the Act under consideration not only ignores those rights, but expressly prohibits the Indians from enjoying the rights of recording or pre-empting land, except by consent of the Lieutenant-Governor, the undersigned feel that he cannot do otherwise than advise that the Act in question is objectionable as tending to deal with lands which are assumed to be the absolute property of the province, an assumption which completely ignores as applicable to the Indians of British Columbia, the honour and good faith with which the Crown has in all other cases since its sovereignty of the territories in North America dealt with their various Indian tribes.

            The undersigned would also refer to the British North America Act, 1867, section 109, applicable to British Columbia, which enacts in effect that all lands belonging to the province, shall belong to the province, ‘subject to any trust existing in respect thereof, and to any interest other than the province in the same.’

            That which has been ordinarily spoken of as the ‘Indian title’ must of necessity consist of some species of interest in the lands of British Columbia.

            If it is conceded that they have not a freehold in the soil, but that they have an usufruct, a right of occupation or possession of the same for their own use, then it would seem that these lands of British Columbia are subject, if not to a ‘trust existing in respect thereof,’ at least ‘to an interest other than the Province herein.’

            Since the year 1875, however, notwithstanding the report of the Minister of Justice then presented and approved, local governments have been unwilling to recognize the land rights which were then recognized by Canada, and the two governments that entered into the McKenna-McBride Agreement failed to recognize those land rights.

If the two governments should now be willing to accept the report and Order in Council of the year 1875 as deciding the land controversy, they would thereby provide what we regard as the only possible general basis of settlement other than a judgment of the Judicial Committee of His Majesty’s Privy Council.

By means of the most direct and independent petition of the Nishga Tribe, we now have our case before His Majesty’s Privy Council. We claim that we have a right to a hearing, a right which has now been made clear beyond any possibility of a doubt. Sir Wilfred Laurier, when Prime Minister, on behalf of Canada, met the Indian Tribes of Northern British Columbia, and promised without any condition whatever that the land controversy would be brought before the Judicial Committee. Moreover, the Duke of Connaught, acting as His Majesty’s representative in Canada, gave positive written assurances that if the Nishga Tribe should not be willing to agree to the findings of the Royal Commission, His Majesty’s Privy Council will consider the Nishga petition. In view of Sir Wilfred Laurier’s promise, and the Duke of Connaught’s assurances, both of which confirm what we regard as our clear constitutional right, we confidently expect an early hearing of our case.

Before concluding these introductory remarks, we wish to speak of one other matter which we think very important. No settlement would, we are very sure, be real and lasting unless it should be a complete settlement. The so-called settlement which the two governments that entered into the McKenna-McBride Agreement have made up is very far indeed from being complete. The report of the Royal Commission deals only with lands to be reserved. The reversionary title claimed by the Province is not extinguished, as Special Commissioner McKenna said it would be. Foreshores have not been dealt with. No attempt is made to adjust our general rights, such as fishing rights, hunting rights and water rights. With regard to fishing rights and water rights, the Commissioners admit that they can make nothing sure. It is clear to us that all our general rights, instead of being taken from us as the McKenna-McBride Agreement attempts to do by describing the so-called settlement thereby arranged as a “final adjustment of all matters relating to Indian affairs in British Columbia” should be preserved and adjusted. Also we think that a complete settlement should deal with the restrictions imposed upon Indians by Provincial Statutes and should include a revision of the Indian Act.

Now, having as we hope made clear the position in which we stand and from which we look at the whole subject, we proceed to comply with the desire of the government of British Columbia.

PART II – REPORT OF THE ROYAL COMMISSION

Introductory Remarks

The general view held by us with regard to the report of the Royal Commission was correctly stated in the communication sent by the Agents of the Nishga Tribe to the Lord President of His Majesty’s Privy Council on 27th May, 1918.

We now have before us the report of the Royal Commission, and are fully informed of its contents, so far as material for the purposes of this statement. The report has been carefully considered by the Allied Tribes, upon occasion of several meetings, and subsequently by the Executive Committee of the Allied Tribes.

Two general features of the report which we consider very unsatisfactory are the following: –

  1. The additional lands set aside are to a large extent of inferior quality, and their total value is much smaller that that of the lands which the Commissioners recommend shall be cut off.
  2. In recommending that reserves confirmed and additional lands set aside be held for the benefit of the bands, the Commissioners proceeded upon a principle which we consider erroneous, as all reserved lands should be held for the benefit of the Tribes.

Grounds of Refusal to Accept

In addition to the grounds shown by our introductory remarks, we mention the following as the principle grounds upon which we refuse to accept as a settlement the findings of the Royal Commission:

  1. We think it clear that fundamental matters such as tribal ownership of our territories require to be dealt with, either by concession of the governments, or by decision of the Judicial Committee, before subsidiary matters such as the findings of the Royal Commission can be equitably dealt with.
  2. We are unwilling to be bound by the McKenna-McBride Agreement, under which the findings of the Royal Commission have been made.
  3. The whole work of the Royal Commission has been based upon the assumption that Article 13 of the Terms of Union contains all obligations of the two governments towards the Indian Tribes of British Columbia, which assumption we cannot admit to be correct.
  4. The McKenna-McBride Agreement, and the report of the Royal Commission ignore not only our land rights, but also the power conferred by Article 13 upon the Secretary of State for the Colonies.
  5. The additional reserved lands recommended by the report of the Royal Commission, we consider to be utterly inadequate for meeting the present and future requirements of the Tribes.
  6. The Commissioners have wholly failed to adjust the inequalities between Tribes, in respect of both area and value of reserved lands, which Special Commissioner McKenna, in his report, pointed out and which the report of the Royal Commission has proved to exist.
  7. Notwithstanding the assurance contained in the report of Special Commissioner McKenna, that “such further lands as are required will be provided by the Province, in so far as Crown lands are available.” The Province, by Act, passed in the spring of the year 1916, took back two million acres of land, no part of which, as we understand, was set aside for the Indians by the Commissioners, whose report was soon thereafter presented to the governments.
  8. The Commissioners have failed to make any adjustment of water-rights which in the case of lands situated within the Dry Belt, is indispensable.
  9. We regard as manifestly unfair and wholly unsatisfactory the provisions of the McKenna-McBride Agreement relating to the cutting-off and reduction of reserved lands, under which one-half of the proceeds of sale of any such lands would go to the Province, and the other half of such proceeds, instead of going into the hands or being held for the benefit of the Tribe, would be held by the Government of Canada for the benefit of all the Indians of British Columbia.

PART III. – NECESSARY CONDITIONS OF EQUITABLE SETTLEMENT

                                    Introductory Remarks

  1. In the year 1915, the Nishga Tribe and the Interior Tribes allied with them, made proposals regarding settlement, suggesting that the matter of lands to be reserved be finally dealt with by the Secretary of State for the Colonies, and that all other matters requiring to be adjusted, including compensation for lands to be surrendered, be dealt with by the Parliament of Canada. These proposals the Government of Canada rejected by Order in Council, passed in June, 1915, mainly upon the ground that the Government was precluded by the McKenna-McBride Agreement from accepting them. For particulars we refer to “Record of Interviews,” published in July, 1915, at pages 21 and 105. It will be found that to some extent these proposals are incorporated to this statement.
  2. Some facts and considerations which, in considering the matter of additional lands, it is, we think, specially important to take into account, are the following: –

(1.) In the three states of Washington, Idaho and Montana, all adjoining British Columbia, Indian Title has been recognized, and treaties have been made with the Indian tribes of those States. Under those treaties, very large areas of land have been set aside. The total lands set aside in those three states considerably exceed 10,000,000 acres, and the per-capita area varies from about 200 acres to about 600 acres.

(2.) Portions of the tribal territories of four tribes of the Interior of British Columbia extend into the States above-mentioned, and thus portions of those tribes hold lands in the Colville Reservation, situated in the State of Washington, and the Flathead Reservation, situated in the State of Montana.

(3.) By treaties made with the Indian Tribes of the Provinces of Saskatchewan and Alberta, there has been set aside an average per-capita area of about 180 acres.

(4.) For the five Tribes of Alberta that entered into the Treaty No. 7, whose tribal territories all adjoin British Columbia having now a total Indian population of about 3,500, there was set aside a total area of about 769,000 acres, giving a per capita area of 212 acres.

(5.) The facts regarding the Indian Tribes inhabiting that part of Northern British Columbia lying to the East of the Rocky Mountains shown in Interim Report No. 91 of the Royal Commission at pages 126, 127 and 128 of the Report show that the Royal Commission approved and adopted as a standard for the Indians of that part of the Province occupying Provincial lands the per capita area of 160 acres of agricultural land per individual, or 640 acres per family of five, set aside under Treaty No. 5.

(6.) As shown by the fact above stated, all the Tribes that are close neighbours of the British Columbia Indians on the South and East have had large areas per capita set aside for their use and benefit, and the Indians inhabiting the North-Eastern portion of British Columbia have also been fairly treated in the matter of agricultural lands reserved for them. Notwithstanding that state of affairs, the areas set aside for all the other British Columbia Tribes average only 30 acres per capita, or from one-fifth to one-twentieth of the average of reserves set aside for their neighbours.

(7.) It may also be pointed out that at one time even this small amount of land was considered excessive for the needs of the Indian Tribes of British Columbia, as is shown by the controversy which in the year 1873 arose between the two governments on the subject of acreage of lands to be reserved for the Indians of British Columbia. (See report of Royal Commission at pages 16 and 17.) At that time the Dominion Government contended for a basis of 50 acres per family or 16 acres per capita, and the British Columbia government contended for a basis of 20 acres per family or 4 acres per capita.

(8.) It may further be pointed out that at that very time, while the governments were discussing the question whether each individual Indian required 16 acres or 44 acres, the provincial government was allowing individual white men each to acquire 160 acres West of the Cascades and 320 acres East of that range, each pre-emptor choosing his land how and where he desired.

(9.) All the facts which we have above stated when taken together prove conclusively, as we think, that the per capita area of 30 acres recommended by the Royal Commission is utterly inadequate, and that a per capita area of 160 acres would be an entirely reasonable standard. That conclusion is completely confirmed by the knowledge of the actual land requirements of our Tribes.

(10.) At the same time it is clear to us that, in applying that standard, the widely differing conditions and requirements of the various sections of the Province should be taken into consideration.

(11.) We proceed to state what are the conditions and requirements to each of the sections to which we have referred.

(12.) For that purpose we divide the Province into five sections as follows:

  1. Southern Coast.
  2. Northern Coast, together with the West Coast of Vancouver Island.

III. Southern Interior.

  1. Central Interior.
  2. Northern Interior.

In the case of Section I all conditions are favourable for agriculture, and the Indians require much more agricultural land.

In the case of Section II the conditions are such that the country is not to any great extent agricultural. The Indians require some additional agricultural land together with timber lands.

In the case of Section III the conditions are more favourable to stock raising than agriculture. Throughout the Dry-Belt irrigation is an absolute necessity for agriculture. The Indians require large additional areas of pasture land.

In the case of Section IV there is abundance of good agricultural land. But the climatic conditions are not favourable for stock raising and fruit growing. The Indians require additional areas of agricultural land.

In the case of Section V the conditions are wholly unfavourable to both agriculture and stock raising. The main requirement of the Indians is that, either by setting aside large hunting and trapping areas for their exclusive use or otherwise, hunting and trapping the main industry upon which of necessity they rely, should be fully preserved for them.

  1. It is quite clear to us that these conditions of settlement require to be considered by the Government of Canada as well as the Government of British Columbia.

SPECIAL JOINT COMMITTEE

 

                        Conditions Proposed as Basis of Settlement

We beg to present for consideration to the two top Governments the following which we regard as necessary conditions of equitable settlement:

  1. That the Proclamation issued by King George III in the year 1763 and the Report presented by the Minister of Justice in the year 1875 be accepted by the two Governments and established as the main basis of all dealings and all adjustments of Indian land rights and other rights which shall be made.
  2. That it be conceded that each Tribe for whose use and benefit land is set aside (under Article 13 of the “Terms of Union”) acquires thereby a full, permanent and beneficial title to the land so set aside together with all natural resources pertaining thereto; and that Section 127 of the Land Act of British Columbia be amended accordingly.
  3. That all existing reserves not now as parts of the Railway Belt or otherwise held by Canada be conveyed to Canada for the use and benefit of the various Tribes.
  4. That all foreshores whether tidal or inland be included in the reserves with which they are connected, so that the various Tribes shall have full permanent and beneficial title to such foreshores.
  5. That adequate additional lands be set aside and that to this end a per capita standard of 160 acres of average agricultural land having in case of lands situated within the dry belt a supply of water sufficient for irrigation be established. By the word “standard” we mean not a hard and fast rule, but a general estimate to be used as a guide, and to be applied in a reasonable way to the actual requirements of each tribe.
  6. That in sections of the Province in case of which the character of available land and the conditions prevailing make it impossible or undesirable to carry out fully or at all that standard the Indian Tribes concerned be compensated for such deficiency by grazing lands, by timber lands, by hunting lands or otherwise, as the particular character and conditions of each such section may require.
  7. That all existing inequalities in respect of both acreage and value between lands set aside for the various Tribes be adjusted.
  8. That for the purpose of enabling the two Governments to set aside adequate additional lands and adjust all inequalities there be established a system of obtaining lands including compulsory purchase similar to that which is being carried out by the Land Settlement Board of British Columbia.
  9. That if the Governments and Allied Tribes should not be able to agree upon a standard of lands to be reserved that matter and all other matters relating to lands to be reserved which cannot be adjusted in pursuance of the preceding conditions and by conference between the two governments and the Allied Tribes be referred to the Secretary of State for the Colonies to be finally decided by that Minister in view of our land rights conceded by the two Governments in accordance with our first condition and in pursuance of the provisions of Article 13 of the “Terms of Union” by such method of procedure as shall be determined by the Parliament of Canada.
  10. That the beneficial ownership of all reserves shall belong to the Tribe for whose use and benefit they are set aside.
  11. That a system of individual title to occupation of particular parts of reserved lands be established and brought into operation and administered by each Tribe.
  12. That all sales, leases and other dispositions of land or timber or other natural resources be made by the Government of Canada as trustee for the Tribe with the consent of the Tribe and that of all who may have such rights of occupation affected, and that the proceeds be disposed of in such way and used from time to time for such particular purposes as shall be agreed upon between the Government of Canada and the Tribe together with all those having rights of occupation.
  13. That the fishing rights, hunting rights and water rights of the Indian Tribes be fully adjusted. Our land rights having first been established by concession or decision we are willing that our general rights shall after full conference between the two Governments and the Tribes be adjusted by enactment of the Parliament of Canada.
  14. That in connection with the adjustment of our fishing rights the matter of the international treaty recently entered into which very seriously conflicts with those rights be adjusted. We do not at present discuss the matter of fishing for commercial purposes. However, that matter may stand. We claim that we have a clear aboriginal right to take salmon for food. That right the Indian tribes have continuously exercised from time immemorial. Long before the Dominion of Canada came into existence that right was guaranteed by Imperial enactment, the Royal Proclamation issued in 1763. We claim that under that Proclamation and other Imperial enactment, Section 109 of the British North America Act, the meaning and effect of which were explained by the Minister of Justice in the words set out above, all power held by the Parliament of Canada for regulating the fisheries of British Columbia is subject to our right of fishing. We therefore claim that the regulations contained in the treaty can not be made applicable to Indian Tribes, and that any attempt to enforce those regulations against the Indian Tribes is unlawful, being a breach of the two Imperial enactments mentioned.
  15. That compensation be made in respect of the following particular matters:

(1) Inequalities of acreage or value or both that may be agreed to by any Tribe.

(2) Inferior quality of reserved lands that may be agreed to by any Tribe.

(3) Location of reserved lands other than that required agreed to by any Tribe.

(4) Damages caused to the timber or other natural resources of any reserved lands as for example by mining or smelting operations.

(5) All moneys expended by any Tribe in any way in connection with the Indian land controversy and the adjustment of all matters outstanding.

  1. That general compensation for lands to be surrendered be made.

(1) By establishing and maintaining an adequate system of education, including both day schools and residential industrial schools, etc.

(2) By establishing and maintaining an adequate system of medical aid and hospitals.

  1. That all compensations provided for by the two preceding paragraphs and all other compensation claimed by any Tribe so far as may be found necessary be dealt with by enactment of the Parliament of Canada and be determined and administered in accordance with such enactment.
  2. That all restrictions contained in the Land Act and other Statutes of the Province be removed.
  3. That the Indian Act be revised and that all amendments of that Act required for carrying into full effect these conditions of settlement, dealing with the matter of citizenship, and adjusting all outstanding matters relating to the administration of Indian affairs in British Columbia be made.
  4. That all moneys already expended and to be expended by the Allied Tribes in connection with the Indian land controversy and the adjustment of all matters outstanding be provided by the Governments.

PART IV. – CONCLUDING REMARKS

In conclusion we may remark that we have been fully informed on all matters material to the preparation of this Statement, and have been advised on all matters which we considered required advice. We have conducted a full discussion on all points contained in the Statement, and have been careful to obtain the mind of all the principal Allied Tribes on all the principal points. These discussions have taken place at various large inter-tribal meetings held in different parts of the Province, together with a meeting of the Executive Committee. As result, we think we thoroughly understand the matters which have been under consideration. Having discussed all very fully, we now declare this Statement to be the well-settled mind of the Allied Tribes.

We have carefully limited our Statement of what we think should be conditions of settlement to those we think are really necessary. We are not pressing these conditions of settlement upon the Governments. If the Governments accept our basis and desire to enter into negotiations with us, we will be ready to meet them at any time. In this connection, however, we desire to make two things clear. Firstly, we are willing to accept any adjustment which may be arranged in a really equitable way, but we are not prepared to accept a settlement which will be a mere compromise. Secondly, we intend to continue pressing our case in the Privy Council until such time as the Governments shall have arrived at a basis of settlement with us.

To what we have already said we may add that we are ready at any time to give whatever additional information and explanation may be desired by the Governments for the further elucidation of all matters embraced in our Statement.

We may further add that the Allied Tribes as a whole and the Executive Committee are not professing to have the right and power to speak the complete mind of every one of the Allied Tribes on all matters, particularly those matters which specially affect them as Individual Tribes. Therefore, if the Governments should see fit to enter into negotiations with us, it might become necessary also to enter into negotiations regarding some matters with individual tribes.

We certify that the Statement above set out was adopted at a full meeting of the Executive Committee of the Allied Tribes of British Columbia held at Vancouver on the 12th day of November, 1919, and by the Sub-Committee or the Executive Committee on the 9th day of December in the same year.

PETER R. KELLY,

Chairman of Executive Committee and

                                                Member of Sub-Committee.

 

  1. A. TEIT,

Secretary of Executive Committee and

                                                Member of Sub-Committee