Aboriginal Lands and Title: a Brief History

Over the past 200 years, the Aboriginal peoples of British Columbia have survived and worked to forge a relationship with British Columbia and Canada. The current relationship represents years of both cross cultural negotiations and the creation of new definitions. Remember that today, after 200 years of contact, Aboriginal leaders are still on the frontline of negotiating this relationship both within and outside the Treaty process.  
The Royal Proclamation of 1763 The first formal agreement between the government of Britain, (since what is now Canada was then a British Colony) and the Aboriginal peoples began with the Royal Proclamation of 1763. This Royal Proclamation is considered Canada’s first constitution and it clearly acknowledges the existence of title and rights of Canada’s Aboriginal people. This Proclamation clearly states that the Crown (Government of Britain) must negotiate a relationship with the indigenous people before land can be ceded to create a colony. This relationship is a Treaty. In British Columbia, treaty negotiation only began in 1993. The Royal Proclamation also identifies the services that the Government of Canada will provide until the Treaties are negotiated. These services include education, health, housing, and general welfare. It is from this Royal Proclamation of 1763 that the Federal Government of Canada defines its fiduciary (or parental) responsibility to protect the rights and interests of the Aboriginal people of Canada. In brief, the Government of Canada agreed to negotiate treaties and always represent the best interests of the Aboriginal peoples. It is the misunderstanding of this historical link which prompts many Canadians to believe that Aboriginal people get certain services for free and why Aboriginal people are commonly referred to as the responsibility of the Federal Government. In sum, the Royal Proclamation of 1763 acknowledged Aboriginal title and rights, and agreed to negotiate treaties with the Aboriginal peoples of Canada before allocating lands to the newly-developing provinces.   
Aboriginal Land Negotiations in the 19th Century In the early 19th century, the newly-formed Colony of Vancouver Island recognized the need to define its relationship with its Aboriginal peoples. Continuing with the administrative philosophy developed during the Fur Trade, Governor Douglas negotiated 14 treaties on southern Vancouver Island. These treaties were intended to establish a template for treaty negotiations throughout British Columbia. However, when Douglas retired, the new colonial administration failed to honour the treaty process and, in the following century, only one other treaty was negotiated. It is important to note this break in British Columbia’s policy of negotiating treaties. It is this break in policy which has now come back to haunt British Columbia. Understandably, negotiating treaties in the 21st century is very different that negotiating in the 19th century. In British Columbia, the transition from the fur trade economy and administration to the colonial economy and administration was accompanied by a shift in policy toward Aboriginal Rights and Title. The new BC Provincial Colonial administration denied the existence of Aboriginal rights and title. Therefore, the Colonial government saw no reason to enter into treaty negotiations with Aboriginal peoples. As a result, relations between Aboriginal peoples and the BC government worsened from the late 1860s to the latter half of the 20th century. Between the late 19th century and today, various Indian Land Commissions have reduced the original lands which the federal government had set aside by at least 25%. There are a number of important facts to understand when we look at the development of treaties along the Fraser River during the 20th century. First, the BC Government believed that all Aboriginal responsibilities lay with the Federal Government. Remember, it was the British Government that had signed the Royal Proclamation of 1763, not the province (which, of course, did not yet exist). Also, the terms of BC’s union with Canada in 1871 clearly stated that most of the land in BC became the property of the Provincial Crown, not the Federal Crown. British Columbia saw no reason to enter discussions regarding outstanding Aboriginal issues since there was the possibility that the Provincial Crown could lose land.  

Image courtesy of Fallen Feather

Whose Land? Crown Ownership and British Common Law Most of the Aboriginal land reserves that exist today reflect either the location of historic village sites or specific resource-extraction sites. Most reserves represent resource-extraction sites such as hay meadows or fishing stations that were occupied by Aboriginal people at the time the Land Commission visited. Remember, The Crown (Canada) holds the title to these land reserves. Aboriginal people do not own their reserve land, it is held in trust. However, when discussing land claims, it is important to remember a simple principle of British Common Law. It states that the first person to own something (e.g., land) continues to own that land until an agreement of sale is prepared and signed. There is no bill of sale transferring Aboriginal land to either the Government of Canada or the Province of British Columbia. Unless there is a treaty or a bill of sale for the land in British Columbia, the first tenants, who in this case are the Aboriginal people, continue to own the land. In the late 19th century, the Government of Canada amended the Indian Act to make it illegal for Aboriginal leaders to obtain legal advice; nor could they meet and discuss the settlement of land claims or Aboriginal rights. In the 1950s, this amendment was again changed to allow Aboriginal leaders to pursue outstanding land claim issues. Aboriginal leaders began to work within the Canadian legal system toward winning land-mark legal victories that would help recognize unfinished business in BC regarding the rights of Aboriginal people. This case law was supported by a number of Supreme Court decisions in BC and Ottawa.  
Where Things are at Today In response to the changing legal landscape of the 1980s, the government of BC agreed to meet and discuss land-claim issues with both the government of Canada and British Columbia’s Aboriginal peoples. In the early 1990s, the BC Land Claims Task Force was established with a mandate to develop a framework allowing treaty negotiations to proceed. In 1991, after nearly 150 years of denial, the government of British Columbia accepted the concept of Aboriginal rights (including the inherent right to self-government) as official policy and agreed to participate in land claim negotiations. In 1993, the British Columbia Treaty Commission was established and treaty negotiation has started in British Columbia. However, it must be noted that not all Aboriginal people agree with the process and thus, not everyone participates in treaty negotiations: after all, why negotiate when you already own the land and resources? The process should, according to British Common Law, have the federal and provincial governments negotiating with individual Aboriginal communities for access to their land.