Monday, June 20, 2022

This Land Is Our Land

 

The current dispute over Wetsuweten land is just the latest in a long line of attempted appropriations inflicted on various First Nations as our settler society continues to think it can help itself to anything it sees with little or no regard for Indigenous people who may have already laid claim to it. Trying to separate facts from myths has never been easy in the context of Indigenous land ownership but slowly the courts are coming around to clarifying things and, in the process, the Canadian public is beginning to understand the First Nations position. With National Indigenous Peoples Day coming up on June 21st it's worth taking a look at some of the history behind the legal decisions being made today.

For the first 250 years of the European invasion, colonists from France, Britain, Holland, and Spain settled along the ocean shores and various rivers from the moment they landed, with little consideration for the Indigenous people already living there. While the First Nations people initially helped the settlers and even had reasonable trading relationships with them, conflicts soon developed over competition for land.  In 1763, after the end of the Seven Years War, the French were out of North America and Britain was in control of all lands east of the Mississippi and as far north as Hudson's Bay. To try and end the murderous conflict between settlers and First Nations, the British king, George III, issued a proclamation that set aside land for the Indians. A line was drawn along the Appalachian Mountains that forbid any settlement to the west which was delineated Indian Territory, and it went all the way to the Mississippi River which formed the eastern border of the Spanish territory.


This Royal Proclamation states explicity that all lands not ceded by or purchased from Indigenous people is reserved for them. It states the people should not be molested or disturbed in the possession of lands not ceded or purchased and are reserved for them as their hunting grounds. The Proclamation also prohibited any private person from directly buying Indigenous lands. An Indigenous nation could only sell their lands to representatives of the British monarch and it had to be done at a public meeting. The proclamation and access to western lands was one of the significant areas of dispute between Britain and the colonies and would, in the end, become a contributing factor leading to the American Revolution. Nonetheless, the Royal Proclamation has a particular place in the history of aboriginal rights. It is the first legal recognition of aboriginal title, rights and freedoms, and is recognized in the Canadian Constitution of 1982 which states the Charter cannot override the aboriginal rights granted in the Royal Proclamation.


Unfortunately war broke out in 1775 with the 13 British Colonies seeking independance from Britain and, after it was over, the new country of the United States was awarded the bulk of this Indian Territory which they had no intention of maintaining for Indians. The first test of Indigenous rights came when the Loyalists, who had fought against American independance, fled to British North America and needed land to settle on. Referred to as the Upper Canada land surrenders, these various 30+ treaties that were negotiated provided Indigenous peoples with cash payments, goods, and sometimes reserves to live on depending on the particular treaty, in exchange for providing land to the settlers. Whether the terms of the treaties were fair is another issue but the rights of the First Nations to their land was confirmed.


The next group of treaties to be signed were the Lake Superior and Lake Huron Robinson Treaties in 1850. Beginning in the 1840's various mining companies had sent prospectors and surveyors into unceded territory to identify potential mineral deposits. They then acquired licenses from the colonial government to mine the region in spite of not having a treaty that surrendered the lands.  The Abishnawbe protested and demanded compensation and, after a violent clash erupted between miners and First Nation warriors, William Robinson was dispatched to negotiate a treaty and buy up land. One time payments and annual annuities were agreed to and huge tracts of land were surrendered. First Nations were also granted the right to hunt and fish in the treaty territory as long as there weren't any settlements or mining operations in place and land for reserves was also set aside. Despite the fact the annual annuity payments were never were adjusted over the next 200 years and are now the subject of a lawsuit, Indigenous land claims once again were confirmed.


From 1850-1854 another series of 14 treaties were negotiated by James Douglas, the Governor of the Colony of Vancouver Island, for small parcels of land for settlements, mining and sawmilling operations, and Hudson Bay Company trading posts. Aboriginal signatories relinquished any claim to the lands specified in the treaties in exchange for payment in goods and the right to hunt and fish on unoccupied ceded lands. The rest of Vancouver Island was presumed to belong to the First Nations living there.

After confederation, in 1867, the newly formed Confederation of Canada looked to expand its borders from sea to sea. Even though the government had acquired the former Rupert’s Land (the entire Hudson Bay drainage system that had been granted to the HBC 200 years earlier) they failed to have full control and use of the land as this transfer only provided sovereignty over the area. Title had reverted to the First Nations living there. One of the conditions to ensure British Columbia would join Confederation at the time was the construction of the Canadian Pacific Railway which would connect it to the rest of the nation. In order to satisfy British Columbia's request and the growing need for land by eastern settlers and new immigrants, treaties would have to be created with the First Nation people in the interior of the newly acquired land which was all First Nation territory.

The Numbered Treaties are a series of eleven treaties signed between the First Nations and Canada from 1871 to 1921. These treaty agreements were created to allow the Government of Canada to pursue settlement and resource extraction in the affected regions, which include modern-day Alberta, Saskatchewan, Manitoba, and parts of Ontario, B.C. and the Northwest Territories.

These treaties came in two waves—Numbers 1 through 7 from 1871 to 1877 and Numbers 8 through 11 from 1899 to 1921. In the first wave, the treaties were key in advancing European settlement across the Prairie regions as well as the development of the CPR. In the second wave, resource extraction was the main motive for government officials.

In these treaties, the First Nations were coerced and tricked into giving up aboriginal title to vast amounts of land, in exchange for small reserves for their exclusive use and various promises of schools, food, and farming assistance as well as other entitlements such as hunting and fishing rights. Unfortunately none of these treaty terms were ever completely adhered to but the fiction of recognizing First Nations ownership was maintained.

When the Colony of British Columbia joined Confederation, in 1871, it did not recognize Indigenous title so it felt there was no need for treaties and, other than the Douglas Treaties and Treaty 8 signed by the Federal government to resolve problems related to the Klondike Gold Rush, treaties were not signed with any First Nations for the rest of British Columbia. With most of B.C. now considered unceded land, this was clearly both a mistake and a shorted sighted strategy. In 2000, the historic Nisga'a Treaty went into effect and set a precedent in forcing the issue of unrecognized Aboriginal title. This has resulted in over 50 other Indigenous nations in B.C. now negotiating agreements at various stages of the treaty making process.


Elsewhere in Canada modern treaties have been signed that include the James Bay agreement in Quebec, various agreements in the Yukon, and the largest and most significant of all being the Nunavut agreement that ended up creating a brand new, self-governing territory out of the Northwest Territory. While it's obvious now that many of the older treaties were hopelessly unfair, didn't represent what was agreed to orally, the negotiations were duplicious, and some of the written terms were not lived up to, they at least showed recognition of Indigenous title. First Nations today have access to the finest legal minds for their negotiations, in contrast to being forbidden legal assistance in the past, and the courts have recognized they have exclusive rights to the land and to associated benefits and profits, and must grant their consent before any economic development occurs. This land was always their land, not ours, and it was confirmed by a Royal Proclamation over 250 years ago. We need to remember that.

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