B.C. Claims Task Force Report

1. Introduction

Historical Background

Before the arrival of Europeans in British Columbia, the aboriginal societies lived as distinct and self-sufficient nations each having its own language, its own economy, its own system of law and government, and its own territory. Nations interacted through trade, social relations, sharing of resources, and, at times, warfare. Despite their diversity, the First Nations were broadly alike in having cultures and spiritual understandings that stressed tradition, community, and harmony with the natural environment.

During the decades following the first arrival of Europeans, the First Nations carried on a trading relationship as relative equals with the itinerant newcomers. With minimal contact, there was little conflict. Colonization had not yet taken place. European diseases, which were to reduce the aboriginal population by eighty percent within one hundred years, had begun their deadly invasion. By their actions the foreigners accepted the domestic jurisdiction of the First Nations. For their part, the First Nations and their communities continued to be self-sufficient and self-governing, knowing the land and seas to be theirs.

From the earliest days of its presence in North America the British Crown pursued a policy, set out in the Royal Proclamation of 1763, that recognized aboriginal title. Aboriginal land ownership and authority was recognized by the Crown as continuing under British sovereignty. An effect of the policy was that only the Crown could acquire lands from First Nations, and only by treaty. By the 1850s, the Crown had signed major treaties with the First Nations in eastern Canada. Ultimately, that process continued west to the Rockies, in advance of European settlement. In most of these treaties First Nations ceded title to the Crown in exchange for substantial land reserves and other rights.

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This policy was not pursued west of the Rockies. On Vancouver Island, the British Crown gave trading rights to the Hudson's Bay Company, and placed it in charge of immigration and settlement. Its chief factor, James Douglas, was instructed to purchase First Nations lands. He continued this policy after he became governor of the colony. In all, Douglas made fourteen purchases on the island, known as the Douglas Treaties. When the mainland was made a colony in 1858, Douglas' instructions from London assumed that more treaties would be arranged, but left him to determine the course of events. Because of a shortage of funds, he arranged no further purchases.

Instead, Douglas offered to aboriginal people an opportunity to participate in the affairs of the colony similar to that offered to new settlers. Provided they took up the offer, which included the right to acquire Crown land and become farmers, individual aboriginal people were to be treated as equal to settlers. While Douglas' policy of equality had commendable features, it ignored the cultural reality and wishes of the aboriginal peoples, who were neither consulted nor involved in its creation. Aboriginal title and the inherent rights of aboriginal people were disregarded. Small reserves were created as protection from aggressive land acquisition by settlers. The colonists assumed that aboriginal people would leave their communities to acquire land elsewhere, abandon their traditional lifestyle, adopt farming as a way of life, and merge with the new society. This policy of assimilation guided the new colony.

In the decade following Douglas' retirement in 1864, many of his policies were reversed. The legislature of the united colony discriminated against aboriginal people, by removing their right to acquire Crown land. Officials grudgingly continued to create only small reserves. More significantly, the colony's officials affirmed that aboriginal title had never been acknowledged. No compensation was offered to the First Nations for the loss of traditional lands and resources. Regrettably, the pattern of future relations between aboriginal and non-aboriginal British Columbians was established during this decade.

The colonial society was an immigrant society whose values were very different from those of the aboriginal peoples. The new society distrusted communal values, exalted the enterprising individual, favoured progress over tradition, and believed that the betterment of humankind lay not in harmony with nature but in its conquest and transformation. The British Columbia society saw itself as the successor of European explorers, who believed they had adiscovered" an unknown, even empty, land that was free for the taking. Thousands of years of aboriginal habitation in the area were ignored. First Nations were accorded no place in colonial British Columbia. Individual aboriginal people were denied recognition, respect, dignity, and even the minimal opportunity that was implicit in the policy of assimilation.

When British Columbia joined Canada in 1871, aboriginal people, who were the majority of the population in British Columbia, had no recognized role in political decision-making. The Terms of Union made no mention of aboriginal title, but ensured provincial control over the creation of further Indian reserves. Canada assumed responsibility for gIndians and lands reserved for Indians". The government of British Columbia considered the aIndian land question" to have been resolved. Thereafter, it regarded the federal government as responsible for all matters pertaining to the aboriginal peoples.

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With Confederation, the First Nations in British Columbia were subjected to federal control, notably to the constraints of the Indian Act. The aband" system of administration was imposed on First Nations and bands were made subject to detailed supervision by federal officials. The governments outlawed the great, traditional potlatches which were the heart of the First Nations' social and political system. Throughout the province, the authorities removed children from their families and communities, and placed them in residential schools. Separated from their families and their own society, forbidden to speak their own language, the children were to be educated as non-aboriginals. Inevitably, the persistent and growing exclusion from traditional lands, seas, and resources led to an increasing reliance upon federal support programs. These actions began a long decline into a state of dependency.

In spite of these policies, the traditional values, identities, institutions, and allegiances of the aboriginal peoples endured. In all their communities and councils there was the profound conviction that their hereditary title remained in effect, that no treaty or other lawful action had extinguished that title, and that newcomers needed to obtain First Nations' consent to their use of the land.

From the beginning there were complaints, protests and resistance from the aboriginal people as the reserves were laid out and as settlers took up land. Surprisingly, violence occurred only on occasion — as in 1864, when the Chilcotin sought to protect their territory from white settlers. Instead, from the early stages many First Nations strongly desired to establish an equitable relationship with non-aboriginal governments and communities. Organized political action involving co-operation among neighbouring First Nations began in the 1870s among the Salish peoples. Similar action later emerged in other parts of the province, as the pressures upon traditional lands and livelihoods intensified. These political actions were in good part defensive.

During the 1880s, in meetings with provincial and federal officials, First Nation leaders demanded treaties that would establish a just relationship. They wanted to guarantee their peoples' possession of their territories for present and future generations. Aboriginal leaders reiterated these demands over the ensuing decades, together with many expressions of willingness to share land and resources with the settlers. The demands went unanswered.

For the most part these demands were made diplomatically and peaceably. First Nations seldom used or threatened direct action. The protest blockade made its appearance at the turn of the century near Fort St. John when armed aboriginals, demanding a treaty, halted the flow of miners to the Yukon. In response, the federal government and several of the First Nations agreed in 1899 to the extension of Treaty 8 westward into that part of British Columbia. The provincial government took no part in this treaty-making, and no treaty with either Canada or British Colombia has been made in the province since that time.

The First Nations remained adamant in their demands for recognition of aboriginal title and the making of treaties. Just as persistently, the federal and provincial governments declined to respond to the aboriginal demands. While some non-aboriginal people supported aboriginal concerns, most of them, particularly at the political level, held the view that aboriginal title had never existed in British Columbia, or that it had been displaced by the activities of the new society and its legal system.

Settlement pressure on agricultural land increased after the turn of the century. The federal and provincial governments agreed in 1912 that a Royal Commission should re-examine the size of every reserve in the province. Despite First Nations' objections, the Commission was given no mandate to consider aboriginal title or treaties. While the Commission did recommend enlargement of some reserves, it advised that much valuable land be cut off from others. Disregarding the Indian Act, as well as assurances from the commissioners that reserve reductions would not be made without First Nations' consent, the governments made these reductions without that consent.

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By this time the first province-wide First Nations organization, the Allied Indian Tribes of British Columbia, had been formed to pursue the demands for recognition of title and to secure treaties. Parliament responded with a special joint committee, which held hearings in Ottawa in 1927. The committee dismissed the demands. Parliament amended the Indian Act to make it illegal for Indians to raise or spend money to advance claims. This blocked First Nations from effective political and Nations in British Columbia was a pervasive, and often bitter, frustration.

In 1951 Parliament repealed the provisions of the Indian Act which outlawed the potlatch and prohibited aland claims" activity. Political activity in pursuit of the long-established demands quickly re-emerged in British Columbia. Tribal councils and political organizations became a lively presence during the 1960s. At the end of the decade the Nisga'a went to court, seeking a declaration that they had held aboriginal title to their land prior to colonization, and that their title had never been extinguished. At about the same time the federal government proposed, in a awhite paper," that the final steps toward assimilation be taken. Implementation of the proposed policy would make aIndians" cease to exist under Canadian laws.

Offended by the "white paper," and as determined as ever in their demands, aboriginal people turned again to provincewide political activity. The federal government's awhite paper" was dropped and in the 1970s the provincial government agreed to reopen the issue of the land which had been cut-off from reserves. In subsequent tripartite negotiations between the First Nations, the provincial and the federal governments, many of these cut-off land issues were resolved.

The outcome of the Nisga'a case was a major turning point. The Supreme Court of Canada ruled that the Nisga'a had held aboriginal title in pre-colonial times, but the judges split evenly on the question of the continuing existence of that title. In the wake of the decision the federal government adopted a "comprehensive claims policy," and began negotiations with the Nisga'a in 1976. The province maintained its long standing position denying the validity of aboriginal title and did not join in those negotiations.

Direct action by First Nations returned to prominence during the mid-1970s with rallies, sit-ins, and road and rail blockades. These actions were aimed as much at unsatisfactory conditions on the reserves as at the land question. During the 1980s a new round of direct action began, both to assert aboriginal title and, in some cases, to halt specific resource development projects in First Nation territories. In a number of instances court injunctions suspended resource development pending the outcome of disputes over aboriginal title. As well, in response to increasing political activity by aboriginal people at the national level, the Constitution Act, 1982 included provisions which recognized and affirmed aboriginal and treaty rights and called for a First Ministers' conference to address aboriginal constitutional issues. The province continued to deny the existence of aboriginal title, and declined to negotiate with First Nations. The resulting impasse was as unsettling to some nonaboriginal groups and interests as it was dissatisfying to the First Nations.

During the 1970s and 1980s the evolution of First Nation political structures continued. Various forums, councils, and organizations became active at the national and provincial level. Tribal councils began to emerge across the province as representative, for the most part, of the historic tribal groups. In many cases, it was these tribal councils, rather than their constituent bands or communities, which submitted the formal aland claims" to the federal government. Increasingly, the demand for recognition of the inherent right to First Nation government came to the forefront of the aboriginal agenda. This demand was also put forward to counteract the debilitating effects of dependency.

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During the 1980s, largely because of the activities of the local and provincial First Nation organizations, growing public support for aboriginal issues and a series of court decisions in favour of aboriginal people, the provincial government became more responsive to aboriginal concerns. The Ministry of Native Affairs was formed. In 1989 the Premier's Council on Native Affairs was created to meet with First Nations and prepare recommendations to the government on a range of aboriginal issues.

In the summer of 1990 a number of First Nation communities turned again to direct action, typically in the form of the road or rail blockade. They did so to express solidarity with the activities of the Mohawk in Quebec, but equally to emphasize their demands that the provincial and federal governments recognize their inherent aboriginal title and rights and negotiate aland claims" agreements.

In this setting, the Premier's Council on Native Affairs recommended that the Government of British Columbia should move quickly to establish a specific process by which aboriginal land claims maybe received and placed on the negotiating table". In August, 1990, the provincial government agreed to join the First Nations and the Government of Canada in negotiations, and proceeded immediately to enter the negotiations underway between the Nisga'a and the Government of Canada.

In October, 1990, leaders of First Nations met with the Prime Minister of Canada and then with the Premier and Cabinet of British Columbia urging the appointment of a tripartite task force to develop a process for negotiations. The federal and provincial governments agreed. On December 3, 1990, the task force was established by agreement of the Government of Canada, the Government of British Columbia, and representative leadership of the First Nations. The terms of reference (Appendix 1) call upon the task force to make recommendations on the scope of negotiations, the organization and process of negotiations, interim measures, and public education.

Leaders from First Nations across British Columbia appointed three members to the task force at a meeting called the First Nations Summit. Two members were appointed by the Government of Canada, and two by the Government of British Columbia (Appendix 2 contains a list of the members of the task force). The task force first met on January 16, 1991, and agreed to address the terms of reference by a consensual process. In the course of its deliberations over five and a half months, the task force met with a number of people who were invited to offer advice based on first-hand experience in similar negotiations (Appendix 3). The task force also considered 17 written submissions received from interested persons and organizations who responded to a province-wide request (Appendix 4).

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New Relationship

As history shows, the relationship between First Nations and the Crown has been a troubled one. This relationship must be cast aside. In its place, a new relationship which recognizes the unique place of aboriginal people and First Nations in Canada must be developed and nurtured. Recognition and respect for First Nations as self-determining and distinct nations with their own spiritual values, histories, languages, territories, political institutions and ways of life must be the hallmark of this new relationship.

To the First Nations, their traditional territories are their homelands. British Columbia is also home to many others who have acquired a variety of interests from the Crown. In developing the new relationship these conflicting interests must be reconciled.

First Nations have been forceful in their demands for the peaceful political resolution of the land question. The public and the courts have made it clear that the matters in contention are properly resolved politically, not by confrontation or violence, and not by resorting to the legal process. Whatever the issues may be, it is crystal clear that any new relationship must be achieved through voluntary negotiations, fairly conducted, in which the First Nations, Canada, and British Columbia are equal participants.

The negotiations will conclude with modern-day treaties. These treaties must be fair and honourable.

First Nations, exercising their inherent sovereign authority, have a long history of concluding treaties with Canada. But over the years, aboriginal and treaty rights have often not been honoured by the Crown. For a new relationship to be meaningful and lasting the spirit and intent of the treaties must be honoured not by their breach but by full and complete implementation.

Once concluded, these treaties and the rights defined in them are protected under section 35 of the Constitution Act, 1982. They cannot be unilaterally amended. This is a fundamental principle in the new relationship — only those who make the treaty may change it.

In the negotiation of treaties certainty is an objective shared by all. These treaties will be unique constitutional instruments. They will identify, define and implement a range of rights and obligations, including existing and future interests in land, sea and resources, structures and authorities of government, regulatory processes, amending processes, dispute resolution, financial compensation, fiscal relations, and so on. It is important that the items for negotiation not be arbitrarily limited by any of the parties.

The negotiation of treaties will take time. Some disputes are having a debilitating effect on communities or discouraging economic development and cannot wait. Intern measures will be necessary to resolve these disputes and to provide a positive climate for negotiations. These interim agreements may cover issues such as the alienation of land or resources which may eventually be the subject of the treaty negotiations. These should be concluded without prejudice to the treaty negotiations.

Important to the relationship between the Crown and aboriginal peoples is the concept of the fiduciary duty owed by the Crown. This duty is rooted in history and reflects the unique and special place of aboriginal peoples in Canada. The treaty-making process will define and clarify the terms of the new relationship between the Crown and aboriginal peoples but it cannot end the Crown's fiduciary duty. The determination of the extent to which fiduciary duty continues to exist is a matter for the courts.

A well-informed public is important to the overall success of the process. Education and information must be available to ensure the public understands and supports the emerging new relationship.

The task force believes that the process of negotiation to establish a new relationship will be positive for the First Nations and for the citizens of British Columbia and Canada. The status quo has been costly. Energies and resources have been spent in legal battles and other strategies. It is time to put these resources and energies into the negotiation of a constructive relationship.

The Task Force recommends that:

1. The First Nations, Canada, and British Columbia establish a new relationship based on mutual trust, respect, and understanding — through political negotiations.

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