Tag Archives: Cowichan

The Cowichan decision in five points

30 Thursday Oct 2025

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Concerning, how does a declaration of Aboriginal title affect the non-Native people now living in the ancestral village of Tl’uqtinus, where Cowichan title has been judicially declared?

Tl’uqtinus – tah-look-TEEN-oosh (*an approximate anglicism) – is a 1,846-acre area which overlaps the City of Richmond, lying along the Fraser River.

      On August 7 of this year, the Supreme Court of British Columbia gave a ruling on the Cowichan Tribes’ claim to Aboriginal title to that area. This case is now the longest-ever Aboriginal title case, running over 500 days in trial.

      The judge made a declaration of Aboriginal title to most of the area, which is a seasonal Cowichan fishing village. Madam Justice Young decided that, “The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in the Richmond Tl’uqtinus Lands (Highways) in the Cowichan Title Lands, unjustifiably infringe the Cowichan Nation Aboriginal title to these lands.” She concluded that most of the current land titles in the area are “defective.”

Since then, panic has gripped the province of British Columbia – just as it has after every successful Aboriginal rights case since the first one in 1964. The Province of BC, Canada, and the City of Richmond are appealing the ruling instead of entering negotiations with the Cowichan Tribes.

      The judge suspended the effect of her declaration for eighteen months, to provide time for transition, but all levels of settler government have made it clear they intend to fight cooperation with Cowichan interests and title every step of the way – as they have after every declaratory recognition of Aboriginal land rights since 1875.

The following analysis is based on an extensive survey of Aboriginal rights litigation arising west of the Rocky Mountains; an extensive survey of the circumstances leading up to such litigation and the clear public statements made by Indigenous plaintiffs, as well as the statements of claim; an extensive inventory of provincial behaviours since colonization; and a review of non-Native reaction to the Cowichan title case.

1. Aboriginal title is not the same as fee simple title

What Canada has all along been calling “Aboriginal title” – a sui generis and abnormal concept – are actually national titles, flowing from centuries and millennia of law and governance.

      “Aboriginal title” is a colonial construct used by the crown to obscure Indigenous Peoples’ land rights and subject them to the discretion of the crown. The Cowichan, among others, have now outlived that construct. They, like the Tsilhqot’in just before them, have forced the court to recognize the practical aspect of Aboriginal title. The court, in Cowichan, has ordered that the government of British Columbia must negotiate a resolution to the title conflict. (See the Summary of Declarations below)

      In case after case, for fifty years, crown courts have reduced the meaning of their own invention, “Aboriginal title lands,” to mean nothing more than the right to use and occupy “small spots,” or “postage stamp title” – around fishing rocks, hunting blinds, and “fenced village sites” – as if these were private holdings on crown land.

         Settlers have been left not understanding what Indigenous Peoples’ land titles really are, while the courts have attempted to define them out of existence.

2. Co-existence of Aboriginal title and fee-simple ownership

Because what “Aboriginal title” actually refers to is those national titles, and the underlying title belonging to that Indigenous Nation or People, the underlying Indigenous land title co-exists with individual property ownership in almost exactly the same way that fee simple title holders relate to what they thought was underlying crown title.

      There have always been individual land titles throughout Indigenous Nations. The nations are made up of Clan and House Lands, and titles which must be upheld in regular actions of governance and social obligation. Not unlike the taxes and bylaws of today’s settler regime.

Recently, many people have piped up to the tune that Aboriginal title, as a right to the land, cannot co-exist with fee-simple property ownership. This represents a level of ignorance that has moved into the hysterically incompetent. The same people who loudly make that statement are quite happily paying their taxes to BC and Canada, in full recognition of the idea that their fee-simple ownership co-exists with underlying crown title. They also fully expect to go along with crown appropriation schemes, maybe for a hydro right-of-way, or for a city works infrastructure project; to receive their non-negotiable compensation for that part of their property that was used; and to go on with their land-holding.

3. Displacement

Native plaintiffs have never set out to displace individual property owners in title litigation.

     Ever since the Nisga’a title case in 1973, every court action has specifically excluded claims to ownership of the fee-simple title of individual homes and properties. This includes the Cowichan claim.

Indigenous Peoples demand recognition of their underlying title.

       In this way, Native communities have protected settlers from their own colonial government’s theft, bad faith and lies.

     In many instances, First Nations have attempted to negotiate with the crown for the buy-out and return of lands which the crown sold to settlers or developers. These negotiations were not litigation.

4. Cowichan fishing rights

Tl’uqtinus is a fishing village. A thousand Cowichan people would go there – well into the 20th century – to harvest salmon returning up the Fraser River. They navigated the Salish Sea from their main territory on “Vancouver Island” with enough people and provisions to live for the season. Their big houses and a few residents stayed year-round on the lower Fraser at Tl’uqtinus.

       As of this decision, the Cowichan are one of only five Indigenous Peoples west of the Rocky Mountains to have a judicial declaration of their right to fish for food. This fact is provided to assist non-Native readers understand the extent of colonial repression of economic, social and cultural rights which they must now correct along with land title.

      The other peoples with recognized Aboriginal fishing rights – not just the very recent legislative “accommodation” of Aboriginal rights without explicit recognition and protection, or the modern-day treaty provisions by agreement – are the Musqueam (Sparrow 1990); the Heiltsuk (Gladstone, 1996); the Saik’uz and Stellat’en (Thomas, 2024); the Nuu-chah-nulth (Nuu-chah-nulth, 2021); and the Douglas Treaty nations (1850-54).

5. “Aboriginal title” is a politically-motivated colonial construct

What Madame Justice Young did not point out in her reasons for judgement in this case, is that “Aboriginal rights” is an invention of Imperial and Colonial British courts, along with Britain’s Privy Council and Foreign Secretary, to set aside the land rights of Original Inhabitants invaded and annexed by the British Empire.

There is currently no legal reality to Aboriginal title in Canada: it remains undefined as sui generis: Aboriginal title land can’t be (won’t be) registered by provincial Land Titles offices; the government says it has no market value because it can only be “surrendered” to the crown by agreement.

This archaic and internationally repugnant discrimination has been the subject of many UN treaty bodies’ observations concerning the situation of Indigenous Peoples in Canada. It is also the reason that the judge in Cowichan can do nothing more than urge the government to negotiate the surrender of the declared Aboriginal title lands, in exchange for rights by agreement. That is Canada’s policy. There is no mechanism to mobilize or actuate Aboriginal title land.

One participant at the Richmond City Hall meeting described the situation to a reporter, “If this brick in the wall comes loose, the whole thing’s going to come down.” That is the perspective of a non-Native person who knows absolutely nothing about the Cowichan Tribes.

A few more observations

The Richmond meeting, October 28

When Richmond’s Mayor Brodie called a little meeting for last Tuesday night, which was, in his words, “intended to influence the court,” the Cowichan representatives naturally did not attend. The Indigenous experience in the court of public opinion has been dismal: the 2002 BC Treaty Referendum; the 1992 Charlottetown Accord; etc.

      Unfortunately, while the province of BC has wasted no time appealing the decision in toto, and loudly repeated its historical refusal to recognize Indigenous Peoples’ equality to other Peoples, the Cowichan Tribes are not going to make a lot of public statements to reassure the Richmond citizens (however much they undoubtedly would like to), when those political statements could then be interpreted by the appeal court to undermine their legal position.

      Settlers might be interested to take their own initiative, to learn about the Cowichan Tribes, and to see if their racism survives education.

Life on Aboriginal title lands

Newcomers to BC have lived with the practical reality of national Indigenous titles underlying their fee-simple holdings since at least 1985, in the Sechelt Self-Government Agreement. Well, Indigenous titles have laid under the settler land tenure system all this time; the title-holders have just been very patient in waiting for the newcomers to gain consciousness in relation to their surroundings.

      More recently, the 2014 Supreme Court of Canada Tsilhqot’in decision – for the very first time – made a declaration of Aboriginal title to marked, mapped areas on the ground. Those areas also include lands which were sold to settlers by the crown that didn’t own them. No one has been evicted (although one guy who dredged a salmon spawning stream to improve irrigation will surely be reprimanded). In the Haida Rising Tides Agreement, 2024, settlers seem to have survived provincial recognition of Haida title to Haida Gwaii. In 2002 the Haida filed a statement of claim to their entire territory with the BC Supreme Court, but, such was its indefatigable certainty, BC was compelled to provide a series of stop-gap agreements since then, Rising Tides being the most recent, which have stopped that litigation from proceeding.

      Other jurisdictions where non-Native property owners have interests which are actively recognized, respected, and served by Indigenous Nations are in Tsawwassen, since the 2007 treaty; in Powell River, since the 2007 Sliammon treaty; in Nisga’a, since the 2000 Final Agreement; in Westbank, where people bought 99-year lease holds following the Westbank Self Government agreement; and in Kamloops, following an adjustment of the Indian Act to mobilize housing development on-reserve in the urban center.  

The difference here is that “Aboriginal title” is an “undefined Aboriginal right.” Extinguishing undefined Aboriginal rights is the lead purpose of government Agreements with First Nations today, whether it be under the BC Treaty Commission, or in the new Sectoral Agreement Strategy where the same suite of treaty rights are determined one at a time by stand-alone deals like the “Education Jurisdiction Agreements,” or, for Children and Families, under the federal enabling legislation in Bill C-92; or, for Lands, under the First Nations Lands Management Act; or in Health, Resources, or Taxation authorities.

The written decision in Cowichan

The decision in Cowichan Tribes v. Canada makes excellent reading. The judge has included many selections from the Quw’utsun Elders’ testimony at trial. Their way of life is truly awe inspiring, and the many descriptions of Quw’utsun ways of governance are enlightening. Justice Young has also included much of the pivotal evidence concerning the history of Tl’uqtinus, such as descriptions of the village provided by Captains of the British Navy, maps of the area made by colonists and showing the village site, et cetera.

      At the same time, Young has included all the parties’ positions on the issue, and the real extent of institutionalized settler denial and racism is there for all the world to read, in the Province, Canada’s, and the City of Richmond’s outrageous statements.

Title Insurance

      The State of Hawaii has adapted to a similar stolen-and-settled land situation by enabling “Title Insurance.” In the same way that homeowners buy fire or flood insurance, they also buy title insurance specific to mitigating the inevitable recognition of underlying Indigenous title to their property.

      This development followed a successful Indigenous Hawaiian title case against the state in about 2004.

Pleading ignorance

Pleading ignorance is very rarely a reasonable explanation for illegal behaviour with ongoing harms. What plagues the people of Richmond today is not Aboriginal title, but racist denial and the courts’, politicians’, and media’s refusal to do anything more than insult the title holders.

      The Supreme Court of Canada first swerved to avoid even hearing the title argument in 1965, in the Snuneymuxw hunting case, White and Bob. The courts have protected settler ignorance for as long as possible, but perhaps the Cowichan decision is a watershed moment – following many precipitous moments.

      The Tla-o-quiaht won an injunction against logging Meares Island in 1985 on the basis of their Aboriginal rights. The Nisga’a started negotiating their land claim in 1976 on the basis of their 1973 Calder ruling. The BC Treaty Commission was formed in 1992 to settle land claims. By 1981, Native claims were being pursued by almost every Indigenous tribe “in” BC, under the Office of Native Claims Commission, 1974. Canada’s policy on Native Claims has been so unfair that few agreements have been reached, west of the Rockies.

      No one can claim to be surprised that Indigenous Peoples have land rights.

Helpful quotes from previous rulings:

“The province has been violating Aboriginal title in an unconstitutional, and therefore illegal, fashion ever since it joined confederation”

  • Justice Vickers, BC Supreme Court, Tsilhqot’in 2007

“Aboriginal title and rights have never been extinguished by any action taken by the province of British Columbia.”

  • BC Court of Appeal, Delgamuukw, 2003

“The domestic remedy has been exhausted.”

  • Inter-American Court of Human Rights, Washington DC, Hunquminum Treaty Group v. BC 2009 (Note – the Hunquminum Treaty Group is a Cowichan organization)

EXCERPTS from the decision in Cowichan

Cowichan Tribes v. Canada (Attorney General), BC Supreme Court, August 7, 2025

The Full Ruling:

Cowichan v Canada BCSC August 7 2025Download

From the Introduction to the case, by Justice Young:

•         Between 1871–1914, Crown grants of fee simple interest were issued over the whole of the Claim Area, including the Cowichan Title Lands.

      The first purchase of Cowichan Title Lands was made by Richard Moody who was the first Chief Commissioner of Lands and Works for the Colony of British Columbia and was tasked with ensuring that Indian reserves were created at sites of Indian settlements. Because occupied Indian settlements were appropriated, and could not be sold, most of the Crown grants in the Cowichan Title Lands were made without statutory authority.

•         British Columbia was admitted into Canada on July 20, 1871 under the BC Terms of Union. The effect of Article 13 of the BC Terms of Union was to extend appropriation of Indian settlement lands post‑Confederation, limiting the Province’s ability to sell the land without first dealing with the Cowichan’s interest. As a result, the post-Confederation Crown grants in the Cowichan Title Lands were made without constitutional authority because they were made under legislation that was constitutionally limited by Article 13.

•         The Crown grants of fee simple interest deprived the Cowichan of their village lands, severely impeded their ability to fish the south arm of the Fraser River, and are an unjustified infringement of their Aboriginal title. Subsequent dispositions of the Cowichan’s land, including BC’s vesting of Richmond with fee simple interests and the soil and freehold of highways, are also unjustified infringements. Additionally, some of Canada and the VFPA’s activities on the Cowichan Title Lands unjustifiably infringe the Cowichan’s Aboriginal title.

•         The Province has no jurisdiction to extinguish Aboriginal title. The Crown grants of fee simple interest did not displace or extinguish the Cowichan’s Aboriginal title.

*emphasis added

Summary of the Cowichan Ruling, Justice Young

D.       SUMMARY OF THE DECLARATIONS

[3724]  In summary, I make the following declarations:

•         The descendants of the Cowichan Nation, including the Cowichan Tribes, Stz’uminus, Penelakut and Halalt, have Aboriginal title to a portion of the Lands of Tl’uqtinus, the Cowichan Title Lands, within the meaning of s. 35(1) of the Constitution Act, 1982.

•         The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in the Richmond Tl’uqtinus Lands (Highways) in the Cowichan Title Lands, unjustifiably infringe the Cowichan Nation Aboriginal title to these lands.

•         Canada’s fee simple titles and interests in Lot 1 in Sections 27 and 22 (except those in the YVR Fuel Project lands), Lot 2 in Section 23, and Lot 9 in Sections 23 and 26, and Richmond’s fee simple titles and interests in Lot E in Sections 23 and 26 and Lot K in Section 27, are defective and invalid.

•         With respect to the Cowichan Title Lands, Canada owes a duty to the descendants of the Cowichan Nation, including the Cowichan Tribes, Stz’uminus, Penelakut, and Halalt, to negotiate in good faith reconciliation of Canada’s fee simple interests in the YVR Fuel Project lands with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown.

•         With respect to the Cowichan Title Lands, British Columbia owes a duty to the descendants of the Cowichan Nation, including the Cowichan Tribes, Stz’uminus, Penelakut, and Halalt, to negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown.

•         The descendants of the Cowichan Nation, including the Cowichan Tribes, Stz’uminus, Penelakut and Halalt, have an Aboriginal right to fish the south (i.e., main) arm of the Fraser River for food purposes within the meaning of s. 35(1) of the Constitution Act, 1982.

E.       CONCLUSION

[3725]  Most of the Cowichan’s Aboriginal title lands at Tl’uqtinus were granted away over 150 years ago. Since that time, the Cowichan have pursued the return of their land, first through the JIRC process, causing Gilbert Sproat to write to the Lieutenant Governor in 1878: “The ancient fishing ground on the Lower Fraser of the Cowichan nation … has been sold and now belongs to a white non-resident. What can be done in such a matter?” Although it has taken a very long time, the Cowichan have now established their Aboriginal title to that land. These declarations will assist in restoring the Cowichan to their stl’ulnup at Tl’uqtinus and facilitating the revitalization of their historical practice of fishing for food on the Fraser River and teaching their children their traditional ways. Nevertheless, much remains to be resolved through negotiation and reconciliation between the Crown and the Cowichan.

[3726]  Additionally, the determinations in this case will impact the historic relationships between the Cowichan, Musqueam and TFN, and relations moving forward. The fact is all the parties have continued interests, rights and obligations around the south arm of the Fraser River and limited resources need to be shared and preserved.

[3727]  Much has been written about reconciliation. The principles of reconciliation defined by the Truth and Reconciliation Commission of Canada include the process of healing relationships that required public truth sharing, apology and commemoration that acknowledges and redresses past harms. Litigation is the antithesis of a healing environment as the adversarial system pits parties, and sometimes kin, against one another. Yet at times it is necessary in order to resolve impasses such as those that arose here, halting negotiations. Now that this multi‑year journey has concluded, it is my sincere hope that the parties have the answers they need to return to negotiations and reconcile the outstanding issues.

F.       COSTS

[3728]  The plaintiffs have been successful in this trial and are entitled to their costs. If the parties cannot agree on the scale or apportionment of costs they may apply to the Court for a hearing on the matter.

                 “B. M. Young, J.”                  

The Honourable Madam Justice Young

Cowichan Petition, 1909

30 Tuesday Dec 2014

Posted by in Indigenous Declarations

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Cowichan Petition

March, 1909

Missionaries Charles Tate and Arthur O’Meara draft the Cowichan Petition on behalf of the Quw’utsun’ and present it to colonial authorities in London. The ten-page petition asserts Quw’utsun’ possession and occupation of their land since “time immemorial” and invokes the 1763 Royal Proclamation as a guarantee that these lands, not having been surrendered to the Crown, remain reserved for the Quw’utsun’. In doing so, the Quw’utsun’ regard the “Proclamation of their great father, King George III as the Charter of their rights.”

– UBCIC, Stolen Lands, Broken Promises. Chapter 1: Dispossession and Resistance in British Columbia.

Full Text of the Cowichan Petition:

The King’s Most Excellent Majesty:

The Humble Petition of the Cowichan Tribe of Indians in the Province of British Columbia in the Dominion of Canada one of Your Majesty’s Dominions Beyond the Seas.

SHOWETH:

  1. THAT from time immemorial the Cowichan Tribe of Indians have been the possessors and occupants of the territory including the Cowichan Valley containing a large area and situate within the Territorial limits of the said Province of British Columbia.
  2. The Indian title to said territory was always recognized by Your Majesty’s predecessors. This Indian Title was expressly recognized and affirmed by the Proclamation issued by Your Majesty’s predecessor King George III on the 7th of October, 1763. This proclamation ordained among other things as follows:

“And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that no Governor or Commander in Chief in any of Our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions; as also, that no Governor or Commander in Chief in any of Our other Colonies or Plantations in America, do presume, for the present, and until Our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantick Ocean from the West and North-West, or upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.

“And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under Our Sovereignty, Protection, and Dominion, for the Use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three New Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West, as aforesaid; and We do hereby strictly forbid, on Pain of Our Displeasure, all Our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without Our especial Leave and Licence for that Purpose first obtained.

“And We do further strictly enjoin and require all Persons whatever, who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands, which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

“And whereas great Frauds and Abuses have been committed in the purchasing Lands of the Indians, to the great Prejudice of Our Interests, and to the great Dissatisfaction of the said Indians.

“In order therefore to prevent such Irregularities for the future, and to the End that the Indians may be convinced of Our Justice, and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of Our Privy Council, strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those Parts of Our Colonies where We have thought proper to allow Settlement; but that if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, that same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of Our Colonies respectively, within which they shall lie.”

The lands belonging to and claimed by the said Cowichan Tribe as aforesaid were never ceded to or purchased by the Crown nor was the Indian title otherwise extinguished. These lands were not within the limits of the territory at the date of the said proclamation namely, 7th October, 1763, granted to the Hudson’s Bay Company.

The said lands were, therefore, within the terms of the said proclamation lands reserved for the said Indians.

The said Cowichan Tribe as well as all Indians in North America have always regarded the said Proclamation of their great father King George III as the Charter of their rights.

The proclamation was decided in the case of Campbell v. Hall, 1 Cowper 204, by Lord Mansfield, Chief Justice England, to have the effect and operation of a Statute of the Imperial Parliament.

Ever since the date of the said proclamation the Indians have continued to be the firm and faithful allies of the Crown and have rendered important military service especially in two wars, the war of the Revolution and that of 1812 and these services were expressly referred to in the judgment of Mr. Justice Strong in the St. Catharines Milling & Lumber Company v The Queen, 4 Cartwright page 137.

The title of the Indians is recognized in various Imperial Statutes relating to British Columbia before the Confederation of 1867 in which the lands in question are referred to as “Indian Territories.” This is also recognized by the fourteen Indian treaties made by Sir James Douglas as agent for the Hudson Bay Company which Treaties are set forth in the Sessional papers of British Columbia for 1876 at page 165 et seq. The same state of affairs is recognized in the correspondence between the Secretary of State for the Colonies and Sir James Douglas during the years 1858 to 1861. These are set forth in the said sessional papers at page 172 and following.

In a report made by the Indian Commissioners appointed by the Government of Canada dated 22nd January, 1844, and made while the Indian affairs of Canada were still under the direction of the Imperial Government the Indian Commissioners say “The subsequent proclamation of His Majesty George III issued in 1763 furnished them (the Indians) with a fresh guarantee for the possession of their hunting grounds and the protection of the Crown. This document the Indians look upon as their Charter. They have preserved a copy of it to the present time and have referred to it on several occasions in their representations to the Government.”

“Since 1763 the Government adhering to the Royal Proclamation of that year have not considered themselves entitled to dispossess the Indians of their lands without entering into an agreement with them and rendering them some compensation. For a considerable time after the conquest of Canada the whole of the Western part of the upper province with the exception of a few military posts on the frontier and a great extent of the eastern part was in their occupation. As the settlement of the country advanced and the land was required for new occupants rendered their removal desirable the British Government made successive agreements with them for the surrender of portions of their lands.”

The Indian title and rights were also fully recognized by the Legislature of Vancouver Island as shown by the petition of the House of Assembly of Vancouver Island referred to in the Sessional Papers of British Columbia 1876 page 179 et seq. And in reply to the said petition the Right Honourable the Secretary of State for the Colonies in his dispatch from Downing Street dated 19th October, 1861, says “I am fully sensible of the great importance of purchasing without loss of time the native title to the soil of Vancouver Island.”

In his judgment in the St. Catharine’s Milling case, 4 Cart, 181 Mr. Justice Gwynne quotes from a report made in 1856 by Royal Commissioners appointed to investigate the Indian Land question as follows: – “By the proclamation of 1763 territorial rights akin to those asserted by Sovereign Princes are recognized as belonging to the Indians, that is to say, that none of their land can be alienated except by Treaty made publicly between the Crown and them.”

At the time of the union of British Columbia with the Dominion of Canada section 109 of the British North America Act 1867 was incorporated in the terms of the union and expressly reserves and protect(s) the Indian title to the said lands.

The rights of your Petitioners in respect of said lands therefore at Confederation remained and still continue to be under the “sovereignty, protection and dominion” of Your Majesty by virtue of the said Proclamation of 7th October, 1763.

In the St. Catharines Milling and Lumber Company v The Queen, 14 Appeal Cases Pages 56 and 59 Lord Watson refers to the interest of the Indians in the land as a burden upon the estate of the Crown and an interest other than that of the Province in the same within the meaning of Section 109 of the British North America Act. It is contended therefore, that the Indian title to the said lands remains in full force and effect.

This Indian title was referred to in the address of Lord Dufferin Governor-General of Canada to the Legislative Assembly of British Columbia made on the 20th day of September, 1876.

“From my first arrival in Canada I have been very much pre-occupied with the condition of the Indians population in the Province. You must remember that the Indian population are not represented in Parliament and consequently that the Governor-General is bound to watch over their welfare with special solicitude. Now we must all admit that the condition of the Indian question in British Columbia is not satisfactory. Most unfortunately as I think there has been an initial error, ever since Sir James Douglas quitted office in the Government of British Columbia neglecting to recognize what is known as the Indian title. In Canada this has always been done: no Government whether Provincial or central has failed to acknowledge that the original title to the land existed in the Indian tribes and communities that hunted or wandered over them. Before we touch an acre we make a treaty with the Chiefs representing the bands we are dealing with, and having agreed upon and paid our stipulated price often times arrived at after a great deal of haggling and difficulty we enter into possession but not until then do we consider that we are entitled to deal with an acre. The result has been that in Canada our Indians are contented well affected to the white men and amenable to the laws and Government.”

The title of your Petitioners has been wrongfully repudiated and ignored by the Government of the Province of British Columbia.

By the Thirteenth Article of the terms of admission of British Columbia into Confederation it is provided “that the charge of the Indians and 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 should be continued by the Dominion Government after union” and it was further provided “to carry out such policy tracts of land of such extent as it has hitherto been the practice of the British Columbia Government to appropriate for that purpose shall from time to time be conveyed from the local to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government: and in case of disagreement between the two Governments respecting the quantity of such tracts of land to be so granted the matter shall be referred for the decision of the Secretary of State for the Colonies.”

The Dominion Government endeavoured to have such reserves set aside but did not succeed in so doing and such reserves have not up to the present time been conveyed by the Provincial Government to the Dominion Government.

In a Memorandum dated the 2nd day of November, 1874, and approved by his Excellency the Governor-General on the 4th of November, 1874, the Minister of the Interior says “The undersigned would respectfully recommend that the Government of the Dominion should make an earnest appeal to the Government of British Columbia if they value the peace and prosperity of their Province – if they desire that Canada as a whole should retain the high character she has earned for herself by her just and honourable treatment of the red men of the forest to reconsider in a spirit of wisdom and patriotism the land grievances of which the Indians of that Province complain apparently with good reason and take such measures as may be necessary promptly and effectually to redress them.”

Up to the present time this appeal has been unsuccessful.

In the report of the Deputy Superintendent of Indian affairs 31st December, 1877, referring to British Columbia he says “The non-recognition in some instances by the Provincial Government of the title of the Indians to land occupied by them has for some time agitated the minds of the Indians of this province. Some of these lands have already been and others are being sold without reference to the Indian title thereto. Unless the equitable claims of the Indians in respect to the lands in question are recognized and met in a liberal spirit serious trouble may be the result.”

The memorandum of the Attorney-General of the province of British Columbia dated the 26th day of February, 1907, and approved by the Executive Council on the 28th of February, 1907, (included in the papers and correspondence between the Government of Canada and the Government of British Columbia) comprised in a return called for by the House of Commons on January 28th, 1908, the British Columbia Government says that the Dominion Government holds no proprietary rights in the reserves and denied the power of the Dominion to deal even with the reserves. These propositions of the provincial Government were controverted by a report of the Committee of the Privy Council approved on the 19th day of December, 1907, and the Dominion Government stating that it was ready to facilitate the Government of the Province of British Columbia in any steps it may be advised to test the question before the Courts. Subsequently by Order-in-Council dated the 8th day of August, 1908, certain questions were submitted to the Supreme Court of British Columbia for hearing and consideration. These questions do not include the question of the Indian title but the frame of the question submitted substantially amounts to a repudiation of your petitioners’ title and rights.

On the argument of the said questions before the Supreme Court of British Columbia the Dominion Government took no part. Your petitioners are informed that counsel for the Attorney-General on the said argument repudiated your petitioners’ title and stated that the St. Catharines case leaves little room for argument. In your petitioners’ view the judgment in that case is not applicable because the territory thee in dispute was acquired by Great Britain from France and in the second place because there the Indian title to lands in question had been surrendered to the Dominion by treaty and in consideration of substantial money payments and other advantages satisfactory to the Indians.

Your petitioners have waited patiently for long years in the hope and expectation that their rights would be recognized and justice done to them by the Government of British Columbia but have at length exhausted all other constitutional means known to them.

Your petitioners as a last resort appeal across the Seas to Your Majesty the fountain of Justice fully assured that Your Majesty in exercise of your Sovereignty and Dominion will protect your petitioners in their extremity.

YOUR PETITIONERS THEREFORE HUMBLY PRAY that steps be taken to protect the usufructuary right of your petitioners in all of the said lands, or, that in the alternative the whole question of the rights of the said Tribe be submitted to the Judicial Committee of the Privy Council for decision and determination.

AND YOUR PETITIONERS WILL EVER PRAY

March, 1909

British Seal of Agreement between the Crown and the Chiefs of the Interior of BC: "As Long As the Sun Shines and the Three Rivers Flow..." the British will keep the peace with the peoples of these lands. Note that the arms have since been reversed, to place the Union Jack on top of the sun and rivers.

British Seal of Agreement between the Crown and the Chiefs of the Interior of BC: “As Long As the Sun Shines and the Three Rivers Flow…” the British will keep the peace with the peoples of these lands. Note that the arms have since been reversed, to place the Union Jack on top of the sun and rivers.