A Short Commentary on Land Claims in BC

11th Annual National Land Claims Workshop, October 2003

Dr. Bruce Granville Miller (Department of Anthropology and Sociology, University of British Columbia)



Land claims in BC rest upon the distinctive history of indigenous—European contact in the region. European and Euro-American contact in the region came very late, long after contact in other regions of native North America, centuries in some cases. Early contact revolved around exploration and then an offshore fur-trade industry that involved little interest in actually occupying or settling what is now known as BC. Trade was conducted from vessels arriving along the coast starting in the late 18th century. There are minor exceptions, including a short-lived Spanish fort on Vancouver Island. European powers, including the Russians, Spanish, Americans and British, argued among themselves regarding influence over the region and in the waters nearby, off Spanish Banks, Vancouver and his Spanish counterpart negotiated over the Spanish presence in 1792.

Some historians have argued that, far from dislodging native society, this trade led to the florescence of native society through the importation of new forms of wealth and technologies and through the activities of native leaders who consolidated authority, controlled trade into the interior and who became prominent middlemen "trading chiefs." While this may have been the case, it depended on location. To a great degree these trading chiefs controlled the maritime fur trade, deciding whether trade would occur at all and requiring traders to meet their demands for particular items. Interior communities, however, found their relations with coastal communities altered by the increasingly powerful, and strategically situated coastal communities. But shifting patterns of trade altered which communities could control trade, and the Haida and Nuu-chah-nulth of central and southern BC declined early-on as middlemen traders while the Tsimshian farther north enjoyed a trade monopoly into the early 1850s.

Eventually trade shifted to land-based posts, but Europeans and Americans were still principally interested in furs rather than land and depended on Native people to provide them furs and their subsistence, including fish, and, later, potatoes. Native people accepted or even encouraged the founding of posts, such as Fort Simpson in 1831, because they enabled strategic marriages between chiefs and Hudsons Bay Co officials, and local indigenous control over some features of trade by the "home guard" community. These posts, some strengthened into forts, also provided some security for local Native people from military incursions by enemies. The Sto:lo on the Fraser River, for example, benefited from the presence of Ft Langley in deterring attacks by Lekwiltok.

However, the geographer Cole Harris has argued that the Hudson Bay Co practiced a form of governance before the establishment of institutions of the British crown and imposed a regime of control and domination over surrounding peoples. In effect, he argues, HBCo began to regulate the landscape for its own purposes and served as a colonizing agent. HBCo forts on or near the coast were established in Fort Langley in1827 and Victoria, 1843, and forts in the interior, reached via trails from the lakes and prairies to the east, were established even earlier in the 19th century. These forts were linked together as part of the HBCo "straegies of power" as symbols of authority in the Cordilleran region. These early years established the white presence since whites could not be repulsed, and BC was effectively "colonized before colonies." In general, contact and settlement were mainly peaceful, and war was never declared, but naval forces shelled and burned unprotected villages in 1850, 1851, 1864 and 1877. Marines and armed volunteers opposed the Chilcotin in the interior in 1864.

The occupation of BC by non-indigenous peoples and the displacement of Native authority over the land depended on numerical superiority, and settlers became numerically superior for the province as a whole only in 1885, and later in many districts. A shift in relative population, of course, depended on the decline of Native populations as a result of epidemic disease, beginning with smallpox at the end of the 18th century, and further bouts of smallpox and other diseases, including measles in 1848 and influenza in 1849. The depopulation created a vacuum which led to the movement of many groups, including likely the movement of the Chilliwack down to the Fraser floodplain. Smallpox eventually visited all groups in BC, some several times. The worst outbreak, perhaps, occurred in 1862 with many infected peoples forced by government officials out of Victoria, where they were engaged in trading, back to their homes, thereby spreading the disease. The incubation period was just long enough for them to make the canoe voyages. This epidemic devastated by Haida in particular, forcing the consolidation of remaining communities into a few villages. By contrast, HBCo officials at Fort Langley inoculated local First Nations in the 1830s, thereby avoiding a smallpox epidemic that affected neighboring tribes.

But the clarification of the borders of BC were long in coming. Before 1846 the area that became Washington State was part of the Oregon Country, a region that, by agreement in 1818 between the US and Great Britain, was subject to joint occupation. In 1846, the Oregon question was resolved by establishing the international boundary line at the 49th north latitude and midway through the Strait of Juan de Fuca. Prior to this, though, Oregon was a "bilateral free-trade zone", open to all traders, which operated beyond the state for 50 years, and without courts or justice. There were few white towns, roads, or institutions other than the trading companies, particularly HBCo. Cole Harris called it a "land of commercial capitalism."

Actual negotiations between Native peoples and the crown over land began in 1849/1850. It took a long time to get around to this. This was a full 75 years after first contact in 1774 and any formal colonial control. James Douglas, former HBCo Chief Factor and governor of Vancouver Island, concluded 14 agreements, now known as treaties, with tribes near Victoria, Fort Rupert and Nanaimo. These so-called treaties were not based on Canadian precedent, but rather on a New Zealand model for dealing with Maori. Douglas relied on three features—the creation of reserves, the use of pre-emptions of land, and eventual assimilation.

At this point, the British government recognized Aboriginal title and expected to extinguish and compensate before settlement. It didn’t work out this way, however. Native peoples were paid in goods to relinquish rights to all land except their villages and fields. They retain the rights to hunt and fish on unoccupied lands. Douglas made tiny payments for these lands; for example 100 pounds in goods for 50 square miles on the Saanich Peninsula. The British government was unwilling to allocate funds for treaties beyond these 14. After 1858, when the mainland was made a colony, Governor Douglas continued to mark out reserve lands, hoping that formal treaties could be made as funds became available. Douglas had little support in this even though the Crown had concerns regarding renewed American interests in the area during the gold rush on the Fraser in the late 1850s.

As many as 30,000 armed miners, California 49ers, entered BC from the south, crossing through central Washington, an area out of bounds because of conflict there, prompting plans to increase the settler population and displace Natives to bolster Crown control. Meanwhile, miners attacked Native people as racial violence escalated along the lower Fraser. For example, Capt. Charles Rouse razed five settlements, destroying entire winter stores of berries and salmon near Spuzzum. His men killed up to 37 people. The presence of the gold miners is still felt. Sto:lo Nation researchers have found remnant blobs of mercury, once used in the process of refining gold, left in the mud to pollute the river system.

Many studies of indigenous-newcomer relations describe the 1858 Gold Rush as the event that "transformed forever the cooperative, mutually beneficial (even enriching) contact era association between Natives and newcomers into a relationship characterized by inter-racial conflict" (Carlson 2003, p. 198). Carlson notes that

According to this argument, with the dawning of the settlement era, Aboriginal people shifted from being major players in a drama that was largely of their own creation, to bit players in a theatrical production that was directed by white men who generally regarded Natives as actors unfit for speaking parts.

Carlson adds that the distinction between contact era cooperation and the settlement era conflict is better seen as shades of gray than black and white. It is during this period that the settler population’s new and voracious appetite for land developed. Settlers became known to the Sto:lo, for example, as Xwelitem, "the hungry or starving ones" for their desire for natural resources and land. By now, British authorities wished to fix indigenous people permanently to villages to reduce the opportunities for conflict with newly arriving settlers. The key to erasing aboriginal social identity lay in freezing their physical movements. Sites other than those of villages, especially provisioning grounds, were to be excluded. In addition, by fracturing the family system by restriction of people to place through lists of band memberships, native society could be restrained and non-aboriginal settlement encouraged.

The repressive Joseph Trutch, whose infamous name is unfortunately remembered in a Vancouver street, became chief commissioner of lands and works in 1864, and set out to reverse Douglas’ work. He succeeded in a 92% reduction of the reserves mapped out by McColl under Douglas’s direction. He believed

The Indians have really no rights to the lands they claim, nor are they of any actual value or utility to them; and I cannot see why they should retain these lands to the prejudice of the general interests of the Colony, or be allowed to make a market of them either to Government or to individuals.

BC entered confederation in 1871 and Trutch as lieutenant-governor defended his policies. Although the federal government assumed responsibility for Indians and Indian reserves, the province controlled all other land and acted to limit the size and location of future reserves. Trutch was pivotal to the dilemma the region is in now. He was the first official to claim that FN never owned the land and he created the myth that Indians were bribed to give up their claims to the land, but not the land itself. Although Douglas had earlier referred to the region as "wild and unoccupied" when proclaiming at Ft Langley the creation of the government of BC in 1858, it was Trutch’s version of terra nullius led to the disappearance of Indian title from the larger debate, although not from the minds of the FN. Further, Trutch amended the pre-emption ordinance to exclude Indians and resurveyed every reserve in order to reduce them in the "public interest." In effect, Trutch insured that BC policy at the time of the province’s entry into Confederation was not in conformity with the Proclamation of 1763.

In 1876, a joint provincial and federal Commission was established for the Settlement of Indian Reserves in BC. The Commission confirmed 82 small reserves mostly in Coast Salish territory, and almost a decade later, reserves on the central and northern coasts.

Then, in 1882, Commissioner Peter O’Reilly met with chiefs of several tribes to inquire which sites they wished for villages and resource stations. Most of the main sites were reserved as small, separate plots, rather than as inclusive territories. Most of the land was freed for settlers.

Yet another joint commission was created, this time in 1913. Agents of the McKenna-McBride Commission again visited all parts of the province, meeting Indian Agents and Native people. This commission, however, cut off more lands then added to the total of reserve lands. Neither this commission nor its predecessor had the authority to make treaties or extinguish aboriginal rights. No surrenders or treaties were made on the coast of BC, aside from the early treaties on Vancouver Island. The Royal Proclamation of 1763 was simply ignored.

However, the actions of the commissions prompted responses. Nisga’a, Coast Salish, and Interior Salish, for example, joined to form the Allied Tribes of BC in order to contest the findings of the McKenna-McBride commission. Tribal councils and intertribal groups have pushed for resolutions of claims to lost lands.

More recently, significant legal rulings have altered the political field both in BC and nationally, as you know. The Calder decision in 1972 regarding Nisga’a request for the recognition of aboriginal title led to a revision of federal policy. The province, however, refused to recognize aboriginal title to land until this position was challenged in later legal decisions, including Delgamuukw. This stands in opposition to the circumstances of relatives in Puget Sound who gained treaties in the 1850s.

In brief, the issue of land title in BC can be characterized as relatively late in developing because of the difficulties Europeans experienced in travelling to what is now BC, because the first European commercial activities did not require settlement, and because the region, including BC, was the site of conflicting claims by European powers. The HBCo itself, even though it served as an extension of British interests and authority, did not require much land, initially relying on Native trappers and on foods from Native communities. However, by the second third of the 19th century, with the decline of the fur trade, interest in settlement led to the beginning of a process of displacement of Native peoples, particularly in the region now bordering the international boundary—along the Fraser River and on Vancouver Island. Although early political leaders, in particular Douglas, sought to create a treaty process as a means of dealing with land, this did not begin until the 1990s, a full century and a half after the first 14 treaties. Crown reluctance in the 19th century to fund the purchase of lands and the creation of treaties and the subsequent unwilling of the provincial government to recognize Native title has directly led to the current situation. Native leaders have come to rely on a variety of political and legal measures, including protests, efforts to educate the public, law suits, and, in some cases, participation in the current treaty process, to further their case.

A few years ago, I thought I might explain the history of the land issue in BC by reference to literature—known points of reference that allow listeners to get the picture emotionally or through humor rather than merely factually( see Miller 2001). Many scholars, community leaders, and others have noticed the repetitiveness of public policy, the recycling of failed concepts and practices. Regarding First Nations, these include movement between modes of isolation of communities for their protection, efforts at assimilation, and bouts of recognition of limited autonomy. Government seems never to remember these earlier efforts or why they failed. Joseph Trutch intentionally promoted forgetting during his tenure, obscuring Native right and title and hiding critical documents from public view. He promoted the idea of terra nullius for his own ends. Ordinarily, however, I think governments change, bureaucrats retire, and public opinion simply shifts. The character in fiction, it seems to me, who best captures this mode of forgetting is Peter Pan—who, in the original book by Barrie, was a psychopathic teenage orphan, who sought out adolescent girls to engage in his fantasies. He flew with them over the open water to his Neverland, but commonly forgot about them, leaving them to crash and drown in the ocean. Wendy, in the Disney version, is but one of these girls. Peter simply doesn’t remember the ones before her. It is not Peter who bears the cost of this forgetting; it is the Wendys. I recalled this idea when talking to the land claims representative for an interior tribe, who recalled, in considerable detail, community stories about the dealings with the various Crown representatives who arrived to set boundaries. These stories are now forgotten by government, which is not sure how much land was set aside. This gap between community remembering and government forgetting remains a feature of the lands claims/treaty landscape.

Selected Bibliography

Carlson, Keith 2003. The Power of Place, The Problem of Time: A Study of History and Aboriginal Collective Identity. PhD Dissertation, Department of History, University of British Columbia.

Kew, Michael 1990. History of Coastal British Columbia Since 1849. In Handbook of North American Indians, Vol. 7: Northwest Coast. Wayne Suttles, ed. 159168. Washington: Smithsonian Institution.

Harris, Cole 1997. The Resettlement of BC: Essays on Colonialism and Geographical Change. Vancouver: UBC Press.

Miller, Bruce G. 2001. The Story of Peter Pan or the Middle Ground Lost. BC Studies 131: 2528.

Tennant, Paul 1990. Aboriginal People and Politics: The Indian Land Question in British Columbia, 18491990. Vancouver: UBC Press.