Territories, Natural Resources and First Treaties

The Constitution Act, 1982 ^[1] and Canadian court decisions indicate that treaties over land and natural resource use must be negotiated with Aboriginal communities in order to respect Aboriginal title and rights. Yet unlike many of the First Nations in the rest of Canada who have negotiated treaties such as the Numbered Treaties ^[2] the majority of First Nations in BC have no negotiated treaties. Aboriginal rights and title are thus contentious issues in BC where many lands are sometimes referred to as “unceded territory,” and many seminal constitutional law court cases regarding Aboriginal title and rights have unfolded.

Since there were very few historical or modern treaties within BC, the British Columbia Treaty Process (BCTP) ^[3] began in 1992 involving the provincial government (BC), federal government (Canada), and several First Nations. According to the BC Treaty Commission (2014), a modern treaty is a negotiated agreement that sets out clearly defined rights and responsibilities of First Nations and the federal and provincial governments over far-reaching matters. These include land ownership, governance, wildlife and environmental management, financial benefits and taxation. A treaty is also a full and formal expression of reconciliation between First Nations and government.

In recognition of the need for an orderly framework for negotiation with indigenous communities in 18th century North America, the British Crown issued the Royal Proclamation of 1763 ^[4]. Among its several functions, the proclamation affirmed Aboriginal rights and title. For this reason, it is called the Indian Magna Carta by some scholars. The proclamation is enshrined in the Constitution Act, 1982 in Section 25 (of the Canadian Charter of Rights and Freedoms) and has bearing on Section 35, which provides constitutional protection for Aboriginal treaty rights. While the proclamation now forms the basis of many Aboriginal claims to land and resources in Canada, the historical implementation of the proclamation may have undermined the sovereignty of existing indigenous communities.

First Treaties in BC

The first treaties created in BC were established by Sir James Douglas (Vancouver Island governor) as the Hudson’s Bay Company moved it’s fur-trading headquarters in 1849 from Fort Vancouver (present-day Vancouver, Washington, at the mouth of the Columbia River) to Fort Victoria (present-day Victoria, BC), and the Colony of Vancouver Island was established. These treaties are called the Douglas Treaties and resulted in land purchases covering some 930 square kilometres on Vancouver Island.

By 1858, thousands of gold prospectors had arrived in the Fraser Canyon gold rush. The influx and dispersion of population from this gold rush and the Cariboo gold rush (1861) strained government resources, led to the establishment of the Colony of British Columbia (1858), and resulted in several conflicts with and failure to negotiate treaties with Aboriginal populations. The Colony of Vancouver Island was merged into the Colony of British Columbia in 1866, and the Colony of British Columbia then joined the Canadian Confederation in 1871. There were no new treaties signed with BC First Nations until the 1899 signing of Treaty 8 by First Nations in the northeast of BC.

The historical political lineage described above is important as the BC provincial government has argued in court that the Royal Proclamation of 1763 does not apply to BC as there was no British settlement in BC at the time and that Aboriginal title was extinguished when Canadian Confederation occurred in 1871 (see Delgamuukw v. British Columbia 1997).

Attempts to create further treaties and to address Aboriginal title and rights have, until relatively recently, been stymied by laws that made First Nations customs illegal (such as the potlatch) and limited political enfranchisement and legal representation. For example, the 1876 Indian Act not only defined status and non-status Indians, it enforced a particular type of governance model within the band and made it a federal crime to prosecute, raise money or organize to pursue First Nations claims in court. Of significance to Aboriginal land claims, this last limitation on litigation was repealed by the revised 1951 Indian Act. A number of court decisions since the 1970s have provided some clarification of aspects of Aboriginal title and rights and a legal framework for pursuing claims. For example, the cumulative impacts of the Calder (1973), Sparrow (1990) and Delgamuukw (1997) legal decisions have traced the contours of Aboriginal claim making.