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Historical Perspective On Aboriginal Title In BC

...The possession (by the Indians) of such parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them as their Hunting Grounds...

Royal Proclamation of 1763

Let me not omit to observe, that it should be an invariable condition, in all bargains or treaties with natives for the cessions of land possessed by them, that substance should be supplied to them in some other shape...

Sir E.B. Lytton to Governor James Douglas, July 31 1858

...in the case of the Indians of Vancouver Island and British Columbia Her Majesty’s Government earnestly wish that when the advancing requirements of colonization press upon lands occupied by members of that race, measures of liberality and justice may be adopted for compensating them for surrender of the territory which they have been taught to regard as their own.

Lord Carnarvon to Governor James Douglas, 1859

I may also observe that the Indian title is by no means extinguished. Separate provision must be made for it, and soon: though how this is to be done will require some consideration...

Chief Justice Sir Matthew Baillie Begbie, April 30, 1860

I have the honour of transmitting a Petition from the House of Assembly of Vancouver Island to your Grace, praying for the aid of Her Majesty’s Government in extinguishing the Indian title to the Public lands in this Colony: and setting forth, which much force and truth, the evils that may arise from the neglect of that very necessary precaution.

Governor James Douglas, 1861

I am fully sensible of the great importance of purchasing without loss of time, the native title to the soil of Vancouver Island; but the acquisition of the title is a purely colonial interest, and the Legislature must not entertain any expectation that the British taxpayer will be burdened to supply the funds or British credit pledged for the purpose...

The Honourable Secretary of State for the Colonies, October 1861

...the title of the Indians in the fee of the public lands, or any portion thereof, has never been acknowledged by the Government, but, on the contrary is distinctly denied...

Joseph Trutch to Secretary of State for the Colonies, Earl Granville 29 January 1870

That the charge of the Indians and the Trusteeship and management of the lands reserved for their use and benefit, shall be assumed by the Dominion Government, and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after Union.

Article 13 of the Terms of Union, 1871

...The Canadian system as I understand it will hardly work here. We have never bought out any Indian claims or lands, nor do they expect we should, but we reserve for their use and benefit from time to time tracts of sufficient extent to fulfill all their reasonable requirements for cultivation or grazing. If you now commence to buy out Indian title to the lands of BC you would go back all that has been done here for 30 years past and would be equitably bound to compensate the tribes who inhabited the districts now settled farmed by white people equally with those in remote and uncultivated portions...

BC Lt. Governor Trutch to Prime Minister John A. MacDonald, 1872

For many years we have been complaining of the land left us being too small. We have laid our complaints before Government officials nearest to us; they sent us to some others; so we had no redress up to the present; and we have felt like men trampled on, and are commencing to believe that the aim of the white men is to exterminate us as soon as they can, although we have always been quiet, obedient, kind and friendly to the whites.

Discouragement and depression have come upon our people have come upon our people. Many of them have given up the cultivation of land, because our gardens have not been protected against the encroachments of the whites. Some of our best men have been deprived of the land they had broken and cultivated with long and labour, a white man enclosing it in his claim, and no compensation given. Some of our most enterprising men have lost part of their cattle, because white men had taken the place where those cattle were grazing, and no other place left but the thickly timbered land, where they die fast.

We are now obliged to clear heavy timbered land, all prairies having been taken from us by white men. We see our white neighbours cultivate wheat, peas &c., and raise large stocks of cattle on our pasture lands, and we are giving them our money to buy the flour manufactured from the wheat they have grown on the same prairies...

Petition addressed to the Superintendent of Indian Affairs, signed by Peter Asseyik, Chief of Hope Band, and 109 others, July 14, 1874

When the Dominion Government took charge of the Indian tribes of British Columbia it was proposed to adopt the same policy towards them as towards their brothers of the other Provinces, and grant each family a large quantity of land...

The whites came, took land, fenced it, and little by little hemmed the Indians in their small reservations. They leased the land that they did not buy and drove the cattle of the Indians from their own pasture land. Many of these reservations have been surveyed without their consent, and sometimes without having received notice of it, so that they could not expose their needs and their wishes. Their reservations have been repeatedly cut off smaller for the benefit of the whites, and the best and most useful part of them taken away till some tribes are corralled on a small piece of land...

...are not the natives justified in now claiming their rights? Reverse the case, and place the whites in the place of the Indians, which white settler would bear with it?...

Letter from Father C.J. Grandidier to the Victoria Standard, August 28, 1874

... with one slight exception as to land in Vancouver Island surrendered to the Hudson Bay Company, which makes the absence of other the more remarkable, no surrender of lands in that province has ever been obtained from the Indian tribes inhabiting it, and that any reservations which have been made, have been arbitrary on the part of the government, and without the assent of the Indians themselves, and though the policy of obtaining surrenders at this lapse of time and under the altered circumstances of the province, may be questionable, yet the undersigned feels it his duty to assert such legal or equitable claim as may be found to exist on the part of the Indians...

There is no shadow of doubt, that from the earliest times, England has always felt it imperative to meet the Indians in council, and to obtain surrenders of tracts of Canada, as from time to time such were required for the purposes of settlements...

It is sufficient, for the present purposes, to ascertain the policy of England in respect to the acquisition of the Indian territorial rights, and how entirely that policy has been followed to the present time, except in the instance of British Columbia...

Considering... that no surrender or cession of their territorial rights whether the same be of a legal or equitable nature, has been ever executed by the Indian tribes of the province - that they allege that the reservations of land made by the Government for their use, have been arbitrarily so made, and are totally inadequate to their support and requirements, and without their assent - that they are not averse to hostilities in order to enforce rights which it is impossible to deny them... the undersigned feels that he cannot do otherwise than advise that the Act in question is objectionable, as tending to deal with lands which are assumed to be the absolute property of the province, an assumption which completely ignores, as applicable to the Indians of British Columbia, the honour and good faith with which the Crown has, in all other cases, since its sovereignty of the territories in North America, dealt with their various Indian tribes...

That which has been ordinarily spoken of as the "Indian title" must, of necessity, consist of some species of interest in the lands of British Columbia...

Report of the Honourable Minister of Justice, January 19, 1875 (disallowing a provincial Land Act because it did not give sufficient regard to aboriginal title)

...This Government does not desire to see apportioned any unnecessarily large Reserves such as would interfere with the progress of white Settlement...

Instructions to Indian Reserve Commissioner Alexander McKinley, 1876

Now, we must all admit that the condition of the Indian question in British Columbia is not satisfactory. Most unfortunately, as I think there has been an initial error, ever since Sir James Douglas quitted office, in the government of British Columbia neglecting to recognize what is known as the Indian Title. In Canada this has always been done, no government, whether provincial or central, has failed to acknowledge that the original title to the lands existed in the Indian tribes and communities that hunted or wandered over them. Before we touch an acre we make a treaty with chiefs representing the bands we are dealing with, and having agreed upon and paid our stipulated price - often times arrived after a great deal of haggling and difficulty - we enter into possession, but not until then do we consider that we are entitled to deal with an acre.

Governor-General of Canada, Lord Dufferin, at Victoria September 1876

Indian rights to soil in British Columbia have never been extinguished. Should any difficulty occur, steps will be taken to maintain the Indian claims to all the country where rights have not been extinguished by Treaty...

August 2, 1877 telegram from federal Minister of Interior David Mills to BC Indian Superintendent Israel Wood Powell

I have never been able to understand why the Local Authorities in British Columbia should hesitate to deal with the Indians in the most generous manner in regard to any lands which they may desire... I observe that a policy has been pursued towards the Indian population of British Columbia wholly at variance with the course that it has been thought necessary to pursue towards the aboriginal inhabitants in every other part of the Dominion... I am not at all surprised that the Indians should become discontented, and that when driven to the wall by treatment so cruel, they should at last, impelled by a sense of injustice and a feeling of indignation, have undertaken to secure to themselves that measure of protection which is necessary to their existence, and which seems hitherto to have been denied them. Should anything so disastrous as an Indian war overtake the Province of British Columbia, I do not believe that the Provincial authorities would be permitted to deal with any portion of the lands claimed by the Indians until the Indian title had been first extinguished by making them reasonable compensation. ...there can be no doubt whatever that no arrangement between the Govt. of Canada and the Govt. of British Columbia could take away the rights which the Crown has always recognized as belonging to the Indian natives. So far as I know, in no colony that the Government of Great Britain has established upon this continent, with the single exception of British Columbia, has it been undertaken to dispose of the public domain without first having treated with the Indians for its possession. In the various colonies... the proprietary rights of the Indians in the soil have invariably been respected.

David Mills, Minister of the Interior, to Indian Superintendent I.W. Powell., August 2, 1877

The whole country from the Naas River to the Skeena River, has been in the possession of our nation from time immemorial. No treaty has ever been made with us, and we earnestly hope that the Government will not deprive us of our ancient rights, and wrest from us the lands which God gave to our fathers, thus leaving us in poverty. We do not wish to put any obstruction in the way of Government dealing with the land...

Letter to Indian Reserve Commissioner Peter O’Reilly from the Chiefs and People of Port Simpson, October 5, 1881

What we don’t like about the Government is their saying this: "We will give you this much of land." How can they give it when it is our own. We cannot understand it. They have never bought it from us or our forefathers. They have never fought and conquered our people and taken the land in that way, and yet they say now that they will give us so much land-- our own land. These chiefs do not talk foolishly, they know the land is their own; our forefathers for generations and generations past had their land here all around us; chiefs have had their own hunting grounds, their salmon streams, places where they got their berries; it has always been so. It is not only during the last four or five years that they have seen the land; we have always seen and owned it; it is no new thing, it has been ours for generations. If we had only seen it for twenty years and claimed it as our own, it would have been foolish, but it has been ours for thousands of years. If any strange person came here and saw the land for twenty years and claimed it, he would be foolish. We have always got our living from the land...

1887 Statement of Chief David Mackay to the 1887 Royal Commission....

Mr. O’Reilly came in 1881 to lay off reserves, and we were surprised at this; and he measured off just a small piece, which he said was for us; but it was too small, not large enough for us, not enough for us to live on, only a little from our houses; we told how much we wanted, but he only shook his head. Only a small part of hat he measured is good. My heart is sick, and so are all our people, because the land is so large outside of what he measured for us, and our berry trees, our salmon streams, and hour hunting grounds are in this land that is taken from us. These are not in what Mr. O’Reilly measured for us...I want to see the Government do right by us, and the officers to treat us all alike, not help one village different from another, and then we shall have confidence in their work. We want sufficient land for ourselves, to be our own; we do not want it as a reserve; and give us a treaty, and something for the outside, our hearts will then be satisfied.

Statement of George Gibson, Naas River November 19, 1888

....in extending to them the privilege which they at present enjoy, of taking fish for their own use whenever and howsoever they choose, such permission is not to be considered by the Indians as a right, but as a privilege extended to them as an act of grace on the part of the Government which may at any time be withdrawn...

L. Vankoughnet, Deputy Superintendent General of Indian Affairs to Indian Reserve Commissioner Peter O’Reilly, September 2, 1891

In other parts of Canada the Indian title has been extinguished, reserving sufficient land for the use of the Indians, but in British Columbia the Indian title has never been extinguished, nor has sufficient land been allotted to our people for their maintenance... We have appealed to the Dominion government, which is made up of men elected by the white people who are living on our lands, and of course, can get no redress from that quarter. We have no vote, if we had it might be different... We are not even consulted with regard to the appointment of the Indian agents... We are but poor ignorant Indians and know nothing of the white man’s law; but we are persuaded that your majesty will not suffer us to be trodden upon, or taken advantage of. We leave ourselves in your majesty’s hands, and trust that we may be able to return to our people with good news...

Petition of the BC Tribes, presented to His Majesty King Edward, 1906

...from time immemorial the Cowichan Tribe of Indians have been the possessors and occupants of the territory including Cowichan Valley containing a large area and situate within the territorial limits of the said Province of British Columbia...Your petitioners have waited patiently for long years in the hope and expectation that their rights would be recognized and justice done to them by the Government of British Columbia but have at length exhausted all other constitutional means known to them...

Petition of the Cowichan Tribe to His Majesty the King, March 15, 1909

THE INDIAN "TITLE"

Substantially what the claim of the Indian "title" comes to is that a few hundred Indians shall be allowed to roam unrestricted over a vast region of which they can make no beneficial use, until the Government steps in and buys it from them. It follows that the Indians, having a title, have a right to say what they shall accept in extinguishment of it. If the Government has the right to say that they shall take, say, $10,000,000, it has the right to say that they shall accept $10. But there is no question of legal right involved in the case at all. It is all a matter of humanity and justice and that is the spirit in which it should be approached, the Government always bearing in mind that a people, who are not in a position to demand justice, ought to receive the fullest possible message of it. Let the Indians be dealt with in this spirit, but let us have no absurd claims that they have a title to the land which is superior to the title of the Crown.

The Daily Colonist, Victoria, June 22, 1910

SOVEREIGNTY

All lands within the British Empire are "crown land" unless the Crown has parted with them to private persons. All lands within the Empire, whether acquired by discovery, settlement, conquest, treaty or occupation, are the property of the Crown, which in this respect is construed to hold them in trust for the public benefit. When the sovereign thus acquiring territory permits those already in possession of any part of it to remain in possession, the permission is either granted or the result of special stipulation. Therefore the fundamental fallacy in the claim preferred on the part of certain Indians is that the sovereign power has no right to the land without the assent of the Indians, whereas it is the other way about, and the Indians have no right to the land without the assent of the sovereign power that has taken possession of it...

The British Crown did not acquire sovereignty over British Columbia by discovery or by treaty, but in part by settlement and in part by occupancy. The acquisition of that sovereignty 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. Upon it title to every foot of land in the United Kingdom is based. It is a principle that is absolutely essential to the existence of a nation...

The conclusion of the argument is that the sovereign power, which for the purpose of administration is, so far as the crown lands are concerned, vested in the provincial legislature, has control over ungranted lands within the province, absolutely, despotically and without any limitation whatever, except such as may arise from physical conditions. This is the law. What obligation justice and humanity impose upon the sovereign power is another question.

The Daily Colonist, June 23, 1910

FIRST PRINCIPLES

 The Indian claim is a moral one, not a legal one.

...We may be asked why we propose to discuss a settlement if the Indians have no legal claims. The answer is that as we have taken possession of the country, we are morally bound to see that our possession does not prove a hardship to the original inhabitants, and also because we wish to avoid the possibility of the Indians taking a position of rebellion against the sovereign power. We do not expect the Indians to be able to appreciate the fundamental principles of the laws of the white race, and their acquiescence in the application of those principles to them is likely to be rendered needlessly difficult by unwise advisers. A great deal of the misapprehension that has arisen is due to the employment of language in a loose way. For example, we talk of the extinction of the Indian title, and we call agreements made with Indian tribes treaties. Colloquially these expressions are sufficiently correct; legally they are misleading. The Indians are either British subjects or they are not. If they are, and it will scarcely be denied that they are, the Crown cannot make a treaty with them, for treaties are made between sovereign powers, not between a sovereign power and persons subject to it. We may make an agreement with a band of Indians whereby they undertake to abandon certain tribal privileges, but this does not recognize title or acknowledge any more than a moral claim, to receive compensation for the loss of those privileges.

When it comes down to an admission of this moral claim, we are prepared to go as far as any one else, even to the extent, if it is deemed just, to re-open the question of the reservations, but we protest as strongly as we can against the erroneous idea that the Indians possess any title to vacant Crown lands, which must be extinguished before the laws of the province apply to such areas.

The Daily Colonist, Victoria June 25, 1910

1st. We stand for treaty rights with the dominion government, the same as all the Indian tribes in the other provinces of Canada, and that all matters of present importance to the people of each of our tribes be subject to these treaties, so that we shall have a definite understanding regarding lands, water, timber, game, fish, etc., and we consider such other matters as schools, doctors, aid to the aged, Indian funds, etc, and general assistance by the government should also be included in these treaties. 2nd. We stand for compensation to us by the British Columbia government for all lands of ours appropriated, or held by the Crown, including all lands pre-empted or bought by settlers, miners, lumbermen, etc. 3rd. We stand for the enlargement of our reservations wherever we consider it necessary, by having a sufficiency of land allotted to us so as to enable us to compete on better terms with the whites in the way of making a living. 4th. We stand for the obtaining of a permanent and secure title to be acknowledged by the government as such)...

Petition of the Chiefs of Indian Bands of the southern Interior at Spence’s Bridge, July 16, 1910

We condemn the whole policy of the BC government towards the Indian tribes of this country as utterly unjust, shameful and blundering in every way. We denounce same as being the main cause of the unsatisfactory condition of Indian affairs in this country and of animosity and friction with the whites. So long as what we consider justice is withheld from us, so long will dissatisfaction and unrest exist among us, and we will continue to struggle to better ourselves...

We demanded that our land question be settled, and ask that treaties be made between the government and each of our tribes, in the same manner as accomplished with the Indian tribes of the other provinces of Canada, and in the neighboring parts of the United States. We desire that every matter of importance to each tribe be a subject of treaty, so we may have a definite understanding with the government on all questions of moment between us and them...

Memorial to Sir Wilfred Laurier from the Chiefs of the Shuswap, Okanagan & Thompson Tribes of British Columbia, Kamloops, August 25, 1910

We claim the sovereign right to all the country of our tribe - this country of ours which we have held intact from the encroachments of other tribes, from time immemorial, at the cost of our own blood... We deny the BC government has any title or right of ownership in our country. We have never treated with them, nor given them any such title.. We desire that a part of our country, consisting of one or more large areas (to be selected by us), be retained by us for our own use, said lands, and all thereon to be acknowledged by the government as our absolute property. The rest of our tribal land we are willing to relinquish to the BC government for adequate compensation... We are of the opinion it will be better for ourselves, also better for the governments and all concerned, if these treaties are made with us at a very early date, so all friction, and misunderstanding between us and the whites may be avoided, for we hear lately much talk of white settlement in this region, and the building of railways, etc., in the near future...

Declaration of the Tahltan Tribe, signed at Telegraph Creek October 18th, 1910

Gentlemen, let me inform you that we are not satisfied with the present condition of the injustice done to the sacred rights of the land we inherited from our forefathers, from time immemorial. We are here to appeal to you that our rights be recognized, to press before you our aboriginal title to this land of our forefathers still unextinguished. Believe me, gentlemen, when I assure you, our plan is not force, but to have our legal rights. Our aim is to have this great issue determined in the courts of justice, and we promise to abide by its decision. Gentlemen, this is a great issue, which you as a government body must not ignore. We have come to request you, to appeal to you, to determine this great clear issue of our title to this land handed down to us by our forefathers. Let me once again respectfully assure you, gentlemen, that we are not satisfied, and will not be satisfied until this title of ours is determined in the courts, definitely, for all time to come.

Memorial of Indian Chiefs presented to Premier Richard McBride by Chief B.P. Kelly, March 3 1911

... We have always lived in our country; at no time have we ever deserted it, or left it to others... We are aware the BC government claims our country, like all other Indian territories in BC; but we deny their right to it. We never gave it nor sold it to them. They certainly never got the title to the country from us, neither by agreement nor conquest, and none other than us could have any right to give them title...

Declaration of the Lillooet Tribe, May 10 1911 at Spence’s Bridge

...we represent the original inhabitants and possessors of the territory now known as British Columbia. Our ancestors from time immemorial occupied that country, and held the title to the land and everything thereon and therein. This title was never relinquished nor given away by us; neither has it been extinguished by conquest, purchase, or treaty; therefore, we claim, it is still invested in us. It was recognized by the fur companies and by the early Government officials, as well as by the early settlers. it was acknowledged in speeches made to us by Governors Douglas, Seymour and others; and we expected our title and claim to the lands of BC would have been considered, and dealt with, before any parts of them were sold, or given to railways and settlers by the Government of that Province. We expected negotiations would be opened with us for the surrender of such lands as were desired by the Government for white settlement, as we were told this would be done. We expected treaties would be made with us, and everything arranged in a regular and honest manner. We expected parts of our lands - similar in extent and character to those reserved for the neighboring tribes of Alberta, Washington, Idaho and Montana - would be set aside for our own use, and our ownership of them acknowledged.

Indian Rights Association of British Columbia message to Prime Minister Robert Borden & Cabinet, Ottawa January 6, 1912

Our hearts have grown sorer with the years on this question. It is a sore thing for us to see our country sold over our heads every day in the year, and now we are even taxed in some places if we cut a tree. Later as we gradually gave up our old manner of life, and as settlement of the country by the whites progressed the inadequacy of our reserves, and their unsatisfactory state as regards area, cultivable land, pasture, irrigation, water, etc..., has been steadily forced on us until now indeed it is a pressing question, but still above all we maintain the question of our title should be settled first. In this we simply ask justice, and our rights. We desire not what belongs to the whites nor any one else. We simply want what belongs to us. We claim we have a tribal ownership in all unsurrendered lands of this country. We also claim tribal ownership of all the game, and fisheries, and water, and in fact all natural resources in these tribal territories of ours. We are suffering a considerable loss in these lands being taken from us, and we want some compensation for this loss. Besides no man cares to have his belongings, especially that part from which he draws his life, taken from him without treaty or payment of any kind. Were we to act the same way with the possessions of the whites, would they stand for it? Would they submit? They would claim their rights in what had always belonged to themselves, and their forefathers, and would fight for it if need be...

Statement of Chiefs of the Interior Tribes of British Columbia, presented to the Honourable Prime Minister Robert Borden

 We do not wish to get the best of anybody, but just to obtain our rights and the justice we believe we are entitled to. We ask for the same treatment that has been accorded to other Canadian Indians in the settlement of our land question, and in other matters... You know how the BC government has laid claim to all our tribal territories, and has practically taken possession of same without treaty, and without payment... We appeal to you for what we consider justice, and what we think you would yourself consider justice if you were in our position...As the building of railways, and settlement in this country is proceeding at a rapid pace, we wish to press on you the desirability (for the good of all concerned) of having these matters adjusted at as early a date as possible.

Memorial to the Honourable Frank Oliver, Minister of the Interior from the Chiefs of the Shuswap, Thompson, Okanagan, Lillooet, Stalo, Chilcotin, Carrier and Tahltan tribes 10 May 1911

...We have tried to obtain justice and settlement of our claims from the British Columbia Government, but without results. Why should the government here in British Columbia be allowed to oppress us, crush us, and deny us justice. We have asked them to come with us, and settle our differences in Court. Not in any court of ours, but in their own, the white man’s court at Ottawa and England, but they will not consent to this. We understand this is the only fair method of settlement. Why is the British Columbia Government afraid? If they have done no wrong, and we have no rights, and no case as they say, then why need they be averse to going to court...

Petition of the Indian Rights Association to Prime Minster Robert Borden, March 15 1912

From the common-sense point of view it would seem to appeal to all unprejudiced and disinterested people that men who have inhabited a country from time immemorial and made their living there, must have certain rights which no newcomers should altogether overlook and override. Those rights should be extinguished in some equitable way by negotiation and compensation. Mere strength, or numbers, or superior intelligence, or even the interests of civilization cannot justify us in disregarding what may be looked upon as an inherent right."

Reverend Doctor Tucker, November 5, 1912 in a presentation to the Superintendent-General of Indian Affairs

In view of all that has been herein before stated Your Petitioners, claiming to hold a tribal title to the whole of the said territory both by aboriginal right and under the said Proclamation, and having no other recourse for securing justice, humbly place this Petition before Your Majesty as the source and fountain of all justice, having supreme authority over all personas and matters within Your Majesty’s Dominions...

Petition of the Nisga’a Tribe to His Majesty the King, January 22 1913

We have spoken to you many times already in various ways. We have related our grievances to you, and asked for redress. You must know our position. We have told you what was in our hearts; what we consider to be our rights as the original occupants, possessors and sovereigns of this country, and we have asked that you consider our case and see that we obtain justice. We ask for the same treatment in the acknowledgment of our rights as has been accorded to the other tribes of Canada to the east of us. We cannot see why our rights in our respective tribal territories should not hold good under your laws and the laws of Great Britain, in the same way as the rights of the other tribes. We were equally the possessors and sovereigns within our respective tribal territories that the tribes of Alberta, Manitoba and other parts of Canada were in those. We have been told by our white friends of the difficulties in the way of a settlement of our claims, owing to the unfair and antagonistic attitude of the BC government. We have, therefore, been patient, and have waited long for you to find some way of settlement. However, up to the present we have not heard that you have decided on any definite manner of settling our case...

Statement of the Chiefs of the Interior Tribes of British Columbia, June 5, 1914 addressed to the Prime Minister of Canada, Robert Borden and his government.

We are certain that this land belongs to us. Right up to this day the government never made any treaty, not even to our grandfathers or great grandfathers.

Elder Gideon Minesque, 1915 McKenna-McBride Royal Commission hearings

This country originally belonged to our ancestors... and it is only quite recently that the Government sent men out here to measure the land immediately around us, and we were not notified of it when they did; then the Provincial Government came in and sold the remaining land immediately around us...

Charles Wesley, Kispiox Band, April 1915

The title we claim is the same title which has already been acknowledged and recognized by the Dominion Government as being held by the other tribes to the East of us in Canada. Why should we be discriminated against by the Governments and why should our title (which is actually the same as theirs because we were equally with them possessors of our several tribal territories) be considered different from theirs, or why should they have a title, and we none as we have been told by the British Columbia Government. If this question is to be settled by treaties, by the surrendering of our lands or tribal territories, by compensation to be paid us by the Dominion government, and by lands of our own to be relinquished by the Provincial Government, why cannot this be done without reference to the Courts...

 Hitherto we have seen no way of settling this question outside of the Courts because of the refusal of the British Columbia Government to acknowledge that we had any rights of any kind, and because the Dominion Government had not shown us any way in which the question might be settled otherwise...

Indian Rights Association statement to the Minister of the Interior, Dr. Roche, February 27, 1915

...while it is believed that all of the Indian tribes of the Province will press on to the Judicial Committee, refusing to consider any so-called settlement made up under the McKenna Agreement, the Committee also feels certain that the tribes allied for that purpose will always be ready to consider any really equitable method of settlement out of court which might be proposed by the Governments.

Statement issued by the British Columbia Indian Conference, June 28 1916

...We are sure that the government and a considerable number of white men have for many years had in their minds a quite wrong idea of the claims which we make, and the settlement which we desire. We do not want anything extravagant, and we do not want anything hurtful to the real interests of the white people. We want that our actual rights be determined and recognized; we want a settlement based on justice. We want a full opportunity of making a future for ourselves. We want all of this done in such a way that in the future we shall be able to live and work with the white people as brothers and fellow-citizens.

Resolution at a meeting of Tribes at Spence’s Bridge, December 6, 1917

I might say further, honourable gentleman, that we do not propose to exclude the claims of Indians. It will be manifest to every honourable gentleman that if the Indians have claims anterior to Confederation or anterior to the creation of the two Crown Colonies in the Province of British Columbia they could be adjusted or settled by the Imperial Authorities. Those claims are still valid! If the claim be a valid one which is being advanced by this gentleman and those associated with him as to the Indian Tribes of British Columbia being entitled to the whole of the lands in British Columbia this Government cannot disturb that claim. That claim can still be asserted in the future.

Sir James Lougheed, Senate debate, June 2, 1920

The Indians see nothing of real value for them in the work of the Royal Commission. their crying needs have not been met. The Commissioners did not fix up their hunting rights, fishing rights, water rights, and land rights, nor did they deal with the matter of reserves in a satisfactory manner. their dealing with reserves has been a kind of manipulation to suit the whites, and not the Indians. All they have done is to recommend that about 47,000 acres of generally speaking good lands be taken from the Indians, and about 80,000 acres of generally speaking poor lands, be given in their place. A lot of the land recommended to be taken from the reserves has been coveted by whites for a number of years. Most of the 80,000 acres additional lands is to be provided by the Province, but it seems that the Indians are really paying for these lands. Fifty per cent of the value of the 47,000 acres to be taken from the Indians is to go to the Province, and it seems this amount will come to more than the value of the land the Province is to give to the Indians. The Province loses nothing, the Dominion loses nothing, and the Indians are the losers. They get fifty per cent on the 47,000 acres, but as the 47,000 acres is much more valuable land than the 80,000 they are actually losers by the work of the Commission.

Letter from James Teit in 1920 on behalf of the Indians of BC, publicized during the 1927 Allied Tribes hearings

...Our objective is to continue until there is not an Indian that has been absorbed into the body politic, and there is no Indian question, and no Indian Department...

Deputy Superintendent General of Indian Affairs Duncan Campbell Scott, 1920

We, the Chiefs, representing the Indian tribes of the Lillooet District....humbly pray... that the Indians be granted their aboriginal title, which was not adjusted by the first or any Indian Commissioners.

Petition of the Lillooet District Chiefs, September 29, 1922

In presenting this Petition to the Parliament of Canada as the Supreme Body representing the Dominion of Canada the Allied Tribes declare that, while it is necessary for them to demand what they consider to be their rights from both the Province of British Columbia and the Dominion of Canada and even to contest the validity of an Act of the Parliament of Canada, they desire and intend to act towards all Ministers of the Crown, all Members of both Houses of Parliament and all others concerned in a thoroughly reasonable and conciliatory way and that their one central objective is, by securing judicial decision of all issues involved, to open the way for bringing about an equitable and moderate settlement satisfactory to the Governments as well as to themselves.

Petition of the Allied Tribes of BC presented to Parliament, June 1926

Any person who without the consent of the Superintendent General expressed in writing receives, obtains, solicits, or requests from any Indian any payment or contribution, or promise of any payment or contribution, for the purpose of raising a fund or providing money for the prosecution of any claim which, the tribe or band of Indians to which such Indian belongs, or of which he is a member, has or is represented to have, for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offense and liable upon summary conviction for each such offense to a penalty not exceeding two hundred dollars and not less than fifty dollars, or to imprisonment for any term not exceeding two months.

Indian Act, Section 141 amended 1927 (in effect to 1951)

But, gentlemen, so long as (the) title question is not dealt with, every Indian in British Columbia feels that he has been tricked, and he will never be satisfied. I want to say to this committee, in all seriousness, that you will do a good service to the country if you, in some way see to it that this is dealt with. Let us say that it be dealt with by the Supreme Court of Canada. That is as far as we can go now. We used to go to the privy council, but that is not possible now. Once again, I want to say this: if that is done, it would show the good faith of the government and it will convince the Indians of British Columbia today that the government is anxious to do what is considered just and fair for the Indians of BC. If the case is lost, that would be settled once and for all; if we win, then you will have to deal with us.

Reverend Peter Kelly testifying before another Joint Parliamentary Committee in 1959

It is not correct to say that the Indians did not "own" the land but only roamed over the face of it and "used" it. The patterns of ownership and utilization which they imposed upon the lands and waters were different from those recognized by our system of law, but were nonetheless clearly defined and mutually respected. Even if they didn’t subdivide and cultivate the land, they did recognize ownership of plots used for village sites, fishing places, berry and root patches, and similar purposes. Even if they didn’t subject the forests to wholesale logging, they did establish ownership of tracts used for hunting, trapping and food-gathering, Even if they didn’t sink mine shafts into the mountains, they did own peaks and valleys for mountain goat hunting and as sources of raw materials. Except for barren and inaccessible areas which are not utilized even today, every part of the Province was formerly within the owned and recognized territory of one or other of the Indian tribes.

Anthropologist Wilson Duff, The Indian History of British Columbia, 1964

The trust of the Indians is a tenuous thing. It’s no wonder the Indians don’t believe us when we tell them we are going to consult them before passing legislation or making regulations that affect them.

Robert Andras, Minister without portfolio, 1968 (confirm position)

 ... On the question of aboriginal rights - our answer is no!

Liberal Prime Minister Pierre Trudeau, speaking in Vancouver, BC

For the Indians of British Columbia, sometimes as individuals, sometimes as organized groups, have for generations maintained a claim for compensation, adjustment or restitution based on denial, without their consent and without compensation, of their ancient rights to use and enjoy the land that was theirs. The Indians of British Columbia have long been conscious of, and have endured with a stoical patience but a mounting sense of grievance, the positive loss and hardship which have flowed to them as a result of the white man’s policy of herding them off the lands they formerly used and enjoyed and confining them to Reserves...Persistently and patiently the Indians of British Columbia have sought redress. Always the appeal has been to constituted authority, by means of peaceful persuasion. Frequently there has been at least indirect admission of the justice of our Claim, accompanied occasionally by grudging and minor adjustments... never has there been a total denial but equally certainly never has there been satisfaction. Meantime, the lot of the Indian on many of the Reserves continues to be sub-standard, his culture vanishing, his role one of enforced dependency.

UBCIC Submission on Native Title, October 6, 1971

Never before in the history of Canada has the Federal Government been put in such a position regarding aboriginal rights that they can no longer ignore its existence. The more Governments have tried to ignore our hereditary title and the rights that flow from them, the more pronounced they have become in the legal system. I am convinced because of this that they have no other choice but to recognize our title and our rights or admit to the rest of the "World Community: that justice must be interpreted differently in Canada when dealing with Indian people... The other thing I am convinced of is that the Federal Government knows it must settle with us and restore our rights where it is possible and compensate us where restoration is not possible...

Philip Paul, The Torch has been passed to a New Generation, 1970s

 It must emphasize that the solution to our claims is not money. If the answer to Indian Land Claims and Aboriginal rights was merely money, the conflict could be resolved with a minimal degree of haggling. Indians across the country would simply pry as much cash out of the federal coffers as they could, and the federal government would sigh with relief as it washed its hands of Canada’s aboriginal people... A treaty, as visualized by Indian Leaders elsewhere in Canada... should be an instrument calculated to provide permanent economic and political power ensuring the survival of the signatories as a people.

George Manuel’s presentation to the Berger Inquiry into the Mackenzie Valley Pipeline

It is an historical fact of life that aboriginal rights and aboriginal title to land were not extinguished in some areas. There were no wars, no positions and no treaties. They still exist. If we recognize they still exist, that is all this motion asks us to do. It is a fact of life in those areas that it was simply a matter of imposition and encroachment by the European on the area under the domain of the native Indian... This motion simply asks that we declare that we recognize aboriginal title and rights... Aboriginal rights existed. They were not extinguished. We should sit down honourably with the people affected and identify with them what those rights are, spell them out and seek to negotiate with respect to them.

Skeena MP Frank Howard, April 11, 1973

I was very interested to hear the minister say that his government has recognized the rights of the native people as never before. I am moved to comment that his method of recognition is so original that it is invisible... Governments in other countries are taking native claims seriously and are starting down the road to settlement at the very time that we in Canada, under this government, have been turning away from the road to settlement and backing away from some recognition of aboriginal rights... There is a need to establish aboriginal rights under a national policy which recognizes the elementary principle that aboriginal rights exist... It seems to me the one remarkable fact about Canada’s native leadership is the strength with which they have resisted the temptation to abandon consultation. they have put up with far more than many other groups in Canada would have accepted. I ask if you can imagine the Canadian Labour Congress or the Canadian chamber of Commerce coming back in good faith to deal with a government which has consistently deceived them? Yet the native people, with their present leadership, have come back and are prepared to negotiate in good faith in spite of the way they have been treated before. I simply suggest that their moderate response cannot be counted on forever... So the real question about aboriginal rights is not whether we will face them, but when and in what spirit. Delay might appear to buy time, but it is more likely simply to destroy the good will which still characterizes most of the native leaders of Canada, in spite of the treatment which too often they have received.

Joe Clark, MP May 14, 1973, in the first ever debate on the subject of aboriginal rights in the House of Commons

The present statement is concerned with claims and proposals for the settlement of long-standing grievances. These claims come from groups of Indian people who have not entered into Treaty relationship with the Crown. They find their basis in what is variously described as "Indian Title", "Aboriginal Title", "Original Title", "Native Title", or "Usufructurary Rights". In essence, these claims relate to the loss of traditional use and occupancy of lands in certain parts of Canada where Indian title was never extinguished by treaty or superseded by law... It is basic to the position of Government that these claims must be settled and that the most promising avenue to settlement is through negotiation. It is envisaged that by this means agreements will be enshrined in legislation, enacted by Parliament, so that they will have the finality and binding force of law... The Government is now ready to negotiate with authorized representatives of these native peoples on the basis that where their traditional interest in the lands concerned can be established, an agreed form of compensation or benefit will be provided to native peoples in return for their interest.

Policy statement made by Minister of Indian Affairs Jean Chretien, August 8 1973

One of the things that we must face at the outset is that while we have always talked in terms of integration and equality, the fact is that we are co-existing with native people in this country; we are separate; and they do have special status under our constitution, through law, and through Government policy. So when native people talk in terms of some degree of separateness and special status, they are not really suggesting something new but, rather, new forms of the basic relationship that has always existed between them and other Canadians. I believe that we have been ignoring a basic reality which must be accepted before we can accomplish much in the way of viable relationships... Another point of view that I often confront in reaction to the native position is that all of us, native and other Canadians, have come to the part of Canada we live in from somewhere else and that native people should not have any more rights than the Scotch, or the Ukrainians, or the Chinese, who have come to Canada more recently. There is of course one major difference. Native people in Canada resided here for a substantial period of time before European contact. All of us who have come subsequently did so of our own free will, knowing the government and the rules under which we would live. This is not the case with native people. They were here and we imposed ourselves upon them.

Lloyd Barber, Indian Claims Commissioner for Canada in speech The Basis for Native Claims in Canada, October 1974

We, the Indian People of the Tribes of British Columbia declare that we shall do all in our power to see that the governments of Canada and British Columbia recognize, in law, and in practice, our native title and aboriginal rights.

Union of British Columbia Indian Chiefs Declaration, 1976

 The position of the Province is that if any aboriginal title or interest may once have existed, that title or interest may once have existed, that title or interest was extinguished prior to the Union of British Columbia with Canada in 1871.

Response of the Government of British Columbia to the Position Paper of the Nisga'a Tribal Council, circa 1985

The Liberal party believes the resolution of land claims is fundamental to the achievement of greater self-determination, more self-reliance and economic progress for Indian and Inuit peoples. Land settlement agreements must be tailored to recognize and reflect the individual groups with whom they are made. In recognition of the urgency of this issue, Prime Minister Turner has already asked the government of Canada and the new Minister of Indian Affairs, Doug Frith, to accelerate land claims resolution.

Liberal Party of Canada position on Aboriginal Issues, 1984

We do not wish to displace people from the land. But our title to the land and our rights as the First Nations of British Columbia must not be affected without our consent... Canadian governments must be constitutionally obliged to recognize our title to our traditional territories, to recognize our separate order of government, and to negotiate fair and equitable agreements, or modern treaties, on the relationship to exist among our governments and the sharing of our lands and resources. We must achieve a negotiated agreement on how we shall live together. Only then will it be possible for the governments of Canada, British Columbia and the First Nations to join together in a true and lasting Confederation.

Statement of the First Nations of British Columbia, 1985

It is the law that aboriginal rights exist at the "pleasure of the Crown," and they may be extinguished whenever the intention of the Crown to do so is clear and plain... The plaintiffs’ claims for aboriginal rights are accordingly dismissed.

Chief Justice Allan McEachern, 1991 Reasons for Judgement, Delgamuuk’w V. Regina

Reasons for Judgement, Delgamuuk’w v. Regina

I do not think all aboriginal rights in respect of land were extinguished before 1871. They could not be extinguished by the Province after 1871. The trial judge held that legislation enacted between 1858 and 1871 providing for the settlement of the colony was completely inconsistent with the continued exercise of aboriginal rights, and that a clear and plain intention to extinguish aboriginal rights should be inferred from that legislation. I am not persuaded aboriginal rights could not co-exist with settlement, or that the Crown intended, by virtue of those legislative steps, to completely negate the Indian interest. Indeed, the British continued to recognize the Indian interest. The Crown promised to preserve and protect Indian settlements. The Terms of Union, 1871 between British Columbia and Canada provided that lands would be set aside, and would be transferred to the Domion for the use and benefit of the Indians, a process not completed until 1938. The courts have continued to give effect to claims in respect of aboriginal rights. For instance, they have recognized unextinguished fishing and hunting rights in places other than reserves, but having a connection with aboriginal lands. All of this lends support to the conclusion that the pre-Confederation legislation was not clearly and plainly intended to extinguish aboriginal rights.

Summary of Mr. Justice MacFarlane on Delgamuukw vs. Regina at the Court of Appeal for British Columbia, 1993

 The colonial instruments... did not extinguish all the plaintiffs’ aboriginal rights to the lands they traditionally occupied and used, ie., there was no "blanket extinguishment".

Mr. Justice Wallace on Delgamuukw vs. Regina at the Court of Appeal for British Columbia, 1993

In my opinion the claim to aboriginal title over much of the territory has been established by the evidence and I would overturn the conclusion of the trial judge with respect to the nature of the plaintiffs’ interest in their ancestral lands. I would make a declaration that the plaintiffs, on behalf of the Gitksan and Wet’suwet’en peoples, have a communal aboriginal title over much of the territory to which the claim relates. That aboriginal title is a burden on the root title of the Crown and constituted such a burden when the first fee simple titles were granted to Crown land within the territory...

Mr. Justice Lambert on Delgamuukw vs. Regina at the Court of Appeal for British Columbia, 1993

...it is very difficult for the federal Crown to carry out its particular responsibility to aboriginal peoples in the treaty-making process, and at the same time, discharge its other responsibilities; but there are ways it can do so whether in discharge of its fiduciary obligation or to protect the honour of the Crown.... It can do so by not demanding a surrender of aboriginal rights. It can do so by establishing a more even playing field. It can do so by not assuming a take-it-or-leave it approach. And it can do so by bringing in independent mediators to assist with negotiations in areas where discussions have broken down. It is clear that what it must not do is take any action that is clearly contrary to the Aboriginal party... Aboriginal peoples seek the recognition, not the surrender of the Aboriginal rights. They are prepared to have the extent of their future rights to land and resources spelled out in a treaty. They are prepared to recognize the rights of others. Third parties place their emphasis on the certainty they need with respect to their use of lands and resources. Most of them are, nevertheless, not opposed to recognizing the rights of Aboriginal peoples as long as those rights do not conflict with their own.

Report of Honourable A.C. Hamilton, Fact Finder for the Minister of Indian Affairs & Northern Development, Canada and Aboriginal Peoples: A New Partnership, 1995

Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve..."the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown." Let us face it, we are all here to stay.

Supreme Court of Canada Judgment on Delgamuukw vs. Regina, December 11, 1997

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