During my last article at the end of November, I was beginning the discussion of BC joining Confederation. I had also mentioned that Joseph Trutch was in command of colonial BC and his policy was to deliberately deny the existence of Aboriginal title. Understandably, this did not sit well with the indigenous peoples of the land. These factors in history form the basis of the difficult situations we find ourselves in today
During the 1860s and 70s, several events served to compound the situation in BC. The first Indian residential schools were being established, the reserve system was being established under the guise of protecting lands for indigenous peoples, treaties were not carried out and the need for them denied, Americans were pressing northward and Canada was anxious to establish its jurisdiction from the east to west coast. All of these various elements contributed to how Native and land issues have developed in BC.
When BC joined the confederation of provinces that were making up the country of Canada, they did so under the BC Terms of Union agreement. In its haste to secure the west coast, Canada assumed that the colonial government here had dealt with the Indian land question with treaties as was the lawful requirement upon British colonies. As such, they did not question the issue any further at the time. However, Article 13 of the Terms of Union agreement had been crafted by BC to ensure that the land title question remained unresolved. As a result of this oversight on the part of Canada and the deception on the part of BC, the land title issue continued unresolved through the generations.
The heart of Canadian law is based upon the foundations established by the British Empire when they declared sovereignty over these lands. During the early years of contact, King George III established the law of the Royal Proclamation of 1763 that declared that the Nations or Tribes of Indians should not be disturbed in parts of the Dominion which had not been ceded or purchased by the Crown and that these lands were reserved for the said Nations and Tribes.
Upon joining Confederation, Canada became responsible for Indians and lands reserved for Indians in BC. The understanding under the agreement of union was that this included only the reserves that were set out in BC. However, without the benefit of treaties, legally it meant that all of the unceded and un-purchased Indigenous lands in BC were under the protection of the Canadian government.
Looking back to the Royal Proclamation of 1763 may seem like ancient history, but it is important for gaining a clearer understanding about our current situation. As a result of BCs historic neglect of legal requirements to deal with Native title, on December 11, 1997, five years ago, the honour of the Crown was upheld when the Supreme Court of Canada in Delgamuukw recognized that Aboriginal title in BC continues to exist.