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Comment: Two sides of the First Nations land-title coin

Hamar Foster / Times Colonist

Selections from two First Nations land title narratives:

Narrative 1:

In 1862, the Daily British Colonist wrote that to assert an Indian right to land on Vancouver Island was as absurd as to “prate of the natural right of a he-panther or a she-bear to the soil.”

In 1870, Joseph William Trutch, B.C. commissioner of lands and works, said: “The title of the Indians in the fee of the public lands, or any portion thereof, has never been acknowledged by [the B.C.] government, but, on the contrary, is distinctly denied.” Two years later, he told prime minister John A. Macdonald: “We have never bought out any Indian claims to lands … If you now commence to buy out Indian title to the lands of B.C., you would go back of all that has been done here for 30 years past.”

In 1887, royal commissioner Joseph Planta told the Nisga’a and the Tsimshian, who had asked for a treaty: “It is well for you to understand that there is no probability of your views as to the land being entertained.”

In 1909, B.C. premier Richard McBride said that it is simply “too late to discuss the equity of dispossessing the red man in America.”

In 1910, the Daily Colonist said that when the British Crown acquired sovereignty over B.C., that act “extinguished ipso facto every right or claim that may have been held or enjoyed by present occupation or immemorial possession by any other sovereign people, or tribe. This is no new principle. It is as old as history itself.”

In 1911, the Year Book of British Columbia noted that the B.C. government had “refused to recognize any [Indian] title, or be party to the submission of … the question [to the courts].”

In 1970, the B.C. Court of Appeal said: “As a result of [colonial] legislation [dealing with B.C. land] the Indians of the Colony of British Columbia became in law trespassers on and liable to [be ejected from] lands in the colony other than those set aside as reserves for the use of the Indians.”

In 1985, B.C. attorney general Brian Smith said: “You start negotiating land claims and you’re down the Neville Chamberlain route.”

Narrative 2:

In 1763, a royal proclamation of King George III declared that “no private person do presume to make any purchase from … Indians of any lands … within those parts of our colonies where We have thought proper to allow settlement: but … if at any time any of the … Indians should be inclined to dispose of … lands, the same shall be purchased only for Us, in our Name, at some public meeting or assembly … to be held for that purpose.”

In 1861, Vancouver Island governor James Douglas said that as “the native Indian population of Vancouver Island have distinct ideas of property in land, and mutually recognize their several exclusive possessory rights in certain districts, they would not fail to regard the occupation of such portions of the Colony by white settlers, unless with the full consent of the proprietary tribes, as national wrongs.”

In 1875, the federal minister of justice advised Ottawa that Indian title “must, of necessity, consist of some species of interest in the lands of British Columbia” and in his opinion such title was therefore “an interest other than that of the province” to which provincial title was subject, pursuant to Section 109 of the British North America Act.

In 1888, the highest court in the British Empire said: “[The public lands of provinces are] available to them as a source of revenue [only if] the estate of the Crown is disencumbered of the Indian title.”

In 1909, the lawyer retained by the federal government to advise on the situation in B.C. concluded that Indian lands there “comprise not only such lands as have been specifically … set apart as Indian reserves, but also such lands as are and have been occupied by an Indian nation or tribe from time immemorial.”

In 1911, prime minister Wilfrid Laurier told McBride that the “point to be determined is whether, in British Columbia, there is such a thing as the Indian title, as we have always understood and applied it, and whether it has been extinguished or not. This is a fair question and it ought to be met squarely.” He was therefore “sorry” that McBride refused to go along with submitting the Indian title question in B.C. to the courts.

In 1913, the Geographic Board of Canada’s Handbook of Indians of Canada stated that the “British government has always recognized the title of the Indian tribes to the territory they occupied.”

In 1973, the Supreme Court of Canada said: “The fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. That is what Indian title means.”

In 2014, the Supreme Court of Canada said that it “would allow the appeal and grant a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot’in.”

Hamar Foster is a professor of law at the University of Victoria.

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