Nation says it will continue to occupy its traditional territory until provincial and federal governments agree to honour 1851 Douglas Treaty
Eight months after the Supreme Court of British Columbia declared that both the provincial and the federal governments have failed to honour the 1851 Douglas Treaty between the Crown and the Kwakiutl First Nation of Port Hardy, BC government has launched an appeal.
Last June, the nation went to court to seek a judicial review of decisions made by the Provincial Crown in granting land tenures to logging company Western Forest Products. Under the provisions of an 1851 treaty between the Crown and the Kwakiutl First Nation, the Kwakiutl argued the province should have consulted meaningfully with them before allowing Western Forest Products to remove more than 14,000 hectares of private land from the area covered by Tree Farm Licence 6. The licence also covers roughly half of traditional Kwakiutl territory.
The province filed its appeal several weeks ago, and members of the Kwakiutl have been protesting on their traditional territory ever since, and they have no plans to stop any time soon.
“It’s conducted peacefully, and it will go on indefinitely until we reach resolution on the implementation issue with the Crown,” said Norman Champagne, band manager and spokesperson for the Kwakiutl. He said the treaty grants the nation the right to maintain its livelihood “as formerly” and “for generations to follow.”
The treaty in question is one of a group of 14 pre-confederation treaties known as the Douglas Treaties that cover much of Vancouver Island. The treaties are a series of agreements between the colonial governor James Douglas and the nations of the island in which Douglas purchased the lands for settlement expansion and the nations retained use of existing villages and fields as well as hunting and gathering rights on all of the land.
But now, 163 years after the treaty was signed, the occupation of the land by settlers and developers has made it even more difficult to enforce the right to use traditional territory in traditional ways.
“Towns have built up around the First Nations, economies have developed, businesses have grown. The impact is on the land itself and it further diminishes even the Crown’s ability to set aside land for the Kwakiutl.”
According to counsel for the nation Louise Mandell, the provincial has been acting illegally since the signing of the 1851 treaty
“During all of this time, the position of the government has been that title has been extinguished through the treaties and now the court says that’s just wrong.”
Justice Weatherill made a declaration stating that the province of BC had an ongoing duty to consult with the nation “in good faith and endeavour to seek accommodations regarding their claim of unextinguished Aboriginal rights, titles and interests in respect of the KFN Traditional Territory.”
While the federal government has so far remained silent on the issue, the provincial government is appealing the declaration.
In an email statement, the BC Ministry of Aboriginal Relations and Reconciliation said the government consults with all Douglas Treaty nations on “any decision that may affect their treaty rights in their traditional territory.” Spokesperson Vivian Thomas said the province is appealing to clarify the scope of consultation the Supreme Court has deemed necessary, but refused to comment any further.
A spokesperson for Aboriginal Affairs said the federal arm is also declining to comment while the case is before the court.
There have been a handful of cases since the 1960s affirming the continued validity of Aboriginal rights and title alongside the Douglas treaties
While the Justice Weatherill urged the federal government to deal fairly and with the Kwakiutl to address land claim issues, Mandell believes the court should have gone further, by declaring that the provincial government doesn’t have the power to roll back rights granted through agreements with the Crown and demand that the federal government step in. The Kwakiutl plan to file a cross-appeal to ask that courts fully articulate the responsibilities of both levels of government and call them to the table with Indigenous governments to resolve the issue.
“The table has not been set properly for the implementation of this treaty,” she said.
“All of the pre-confederation treaties have not been properly implemented.”