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The following is an unofficial, unedited transcript of a recording of a public lecture. Due to problems with audio quality and background noise this transcript may contain errors. We apologize for any inaccuracies.

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Page One

Linda Hale:

And he's going to speak to us on the land claims issue. First he's going to give you historical background, try to explain why the situation arose this summer with these various protest meetings and then please feel free to field questions.

Dr. M. Kew:

Yeah, thanks. I'll…I'll take about …about…lets see we have an hour and a half. I'll try to get through what I want to present to you in less than an hour and then we can…you can…you can throw your questions at me. One way we could start this is you could start off with questions but I think …it's probably a little more efficient for me to give you this presentation first, and then…then have the questions. What I'm going to use as a guide here are some lecture notes prepared for a course…for a lecture to a sociology course at U.B.C. a few weeks ago.

…Now……in what I began with …in there and I will begin here in the same way… by asking you if you noticed this last summer…in the last six months a…a series of protests, and sit-ins and demonstrations on the part Indian people? Did any of you remember that? Do you read the papers? [Laughter]…You will no doubt have heard of …some pickets at the legislature, some sit-ins in Indian…Departments of Indian Affairs Offices, occupations of offices, at Kamloops, Williams Lake, Vernon. You will have heard of the closure of some roads at Gold River and near Mount Currie, closure of the road outside Kamloops, an access road to a…to a swimming-hole. This inconvenienced people because it was hot weather and so on. All of these protests and demonstrations by Indian people and then the question is what is this all about? Well…Why…why is this happening? Well I'm gonna talk about…I'm going to give you an answer to that, I think. …An answer. What I think of is an answer to that.

Why this is all about, in a specific sense as it relates to…to BC Indians…the…the…situation, here. But you know there is another kind of answer to that. Why was that happening? And that is …to look at the situation of the BC Indians in a world wide perspective. And if you do that, it's very…you don't go very far in your thinking till you see that…that the protest of the BC Indians are part of a…a world wide phenomenon. You know and it's a phenomenon of the…of…of de-colonization or the reaction of colonized people against …colonial authorities and governments. An attempt to…a strug…it's part of the struggle for independence of colonized people everywhere. Which is a phenomenon of the…the twentieth century. …You know it's happened everywhere on all continents and…and…there's no question that the Indians of North America were a colonized people. They were…their lands were taken over, bought, occupied …they were dispossessed of their lands by a…by a…a colonial power that……that sought to use those lands in new forms and …Indians, like Africans and many Asian peoples, were subordinated to the colonial powers in the local economy. Now they were the employees, or the laborers on plantations and so on.

Now, there is…there is, no question, a…a close parallel between the situation of Canadian Indians and other colonized people. But their not the…the situation is…is…the structural situation not the same as for African peoples or ...peoples in parts of……South East Asia. It's more similar to the situation now in Australia or New Zealand. …and of course there's lots of pertinent…parallels are closer between Canadian or American Indians and the Aborigines of Australia or New Zealand. The peoples in these places are the…the aboriginal peoples are a minority. They're a small…now a small minority of the total population and they're usually…they're …spread out…They're…they're not a united, they're not…they weren't brought together in a single large …area or reserve. They're…they are …split into many very small …local segments. So that …they're politically weak because of that and because of other reasons too. And so that the colon…The…the…the kind of colonization that exists in Canada is a…is what we can call an internal colonization. It's colonization within a large social unit.

Page Two

Dr. Kew:

And the struggle of Canadian Indians and the American Indians is one, working within the system, I think, characteristically rather than the …most of them want to reform the details of their administrative situation, their colonial situation. Rather than struggling for total political independence or starting a revolution against the central government, they're struggling within the legal framework of the…of the larger governments to...to attain some kind of reform. So ... but to...to recap. The protests of the last summer are part of that kind of struggle of people. And you know they draw some inspiration from struggle elsewhere in North America or elsewhere in the world. The Indian leaders in Canada for example George Manuel, who is president of the National Indian Brotherhood draws, in a recent book called The Fourth World, he makes a parallel, you know right from the beginning of his book, with the situation of Canadian Indians and other native people elsewhere in the world. And he looks to their experience to inform Canadian Indians with what they should do. Now that...the situation's specifically in British Columbia though. That's what we really want to...to concentrate on.

Now I think over the last summer, there were three grievances that ... or three...yeah three grievances that they ...the protests and demonstrations addressed. These are not something just of the summer...they're not you know, a phenomenon or grievance of the summer only. They're long standing, but they certainly got a new focus this last summer. And this has been building up for several years in BC. Now these grievances were the following: first, the Indians wanted a settlement of the land claim, the general claim of BC Indians to certain land rights. Never mind what that is right now... We'll see what the land claim implies...in a short while. Secondly, they were looking for a settlement of, or a return rather, of cut off lands. Now you won't know what that is right now either, probably. Some of you may. A special grievance in the land claim thing but ...very limited and specific. They were looking for a settlement of that and finally they were looking and asking and..., protesting for political and economic independence of the...of the colonial administrative apparatus, which in...in Canada is the Department of Indian Affairs (for Indians). They were asking directly and forcefully for independence from the Department of Indian Affairs. So those are the three, I think, focuses of the protests and grievances this summer.

Now I...and I...what I want do is give you the background so you'll know what the land claim means; so you'll know what the "cut-off" lands means. And ...so that you can perhaps understand why they were wanting political independence of the Department of Indian Affairs. So, that's why it's necessary to understand the grievances, to understand why all this protest. It really is essential to understand the history of the land claim. You won't get, you know, it won't make any sense for you until you do. And that's kind of a complicated process… it's a complicated story. Now…so we have to go back and touch on the history of settlement of Canada and Colonial policy in Canada. I hope Linda Hale will check me up if I go wrong because she knows …a good deal about Canadian history and I, you know, I'm an anthropologist and I…I don't know too much about history although, well …some parts of history, you see, but …that's not…history isn't my strong point.

But now, …the thing about the…the situation of… the central feature of the situation in BC is that the Indians in BC signed no…no treaties. Now I have to amend that right away and say they did sign a few minor treaties, but in general British Columbia was not the…the title to it was not extinguished by treaty(the Indian title). And the history of Indian affairs in British Columbia, the hundred odd years since confederation, has been largely revolved around the neglect of the……of the obligation of governments to…to extinguish Land Rights …and…and the petitioning by Indians to have their …their land rights recognized. There's been a hundred odd years of avoidance on the part of the provincial government, you see, to…to settling the land issue. And it's a…it's a very sort of tangled story as to why this should have to be settled in British Columbia. Why the…why it wasn't …wasn't settled long ago in pre-Confederation but certainly by Confederation. For the root of the thing lies in British Canad…in British Colonial policy which…which proceeds…not…by long shot, the beginning of British Columbia and even the beginning of Canada for them, you know, constitutionally.

In British colonial policy…I don't know when this would have started but it certainly prevailed in Africa and Australia and in North America...policy of the colonial…of the British government was to…to recognize the rights of indigenous people. To recognize that indigenous people…you know as European powers expanded they came into all sorts of areas of the world where there were indigenous non-European people (native people). People with simple…relatively simple cultures. And it was British policy to recognize that indigenous people had rights in the land. And in North America this policy, which was long standing, had …I suppose the most important … legal kind of statement of this policy was in the 1763…is that the date? 1763 Proclamation of King George the III. And this …this affected … parts of the …a large part of what's now the United States. And this was a statement of…really of British law and this is of…a Royal Proclamation that had the effect of law upon British subjects. And the…and the gist of this proclamation was the following: that the Crown, the British Crown and only the British Crown, in British colonial territory…only the Crown had the right to extinguish aboriginal title. Only the Crown had the right to buy land from indigenous people. British subjects could only buy land in those territories from the Crown. It meant that Brit…that trading companies, that individuals, people, it was illegal for them, if they were British subjects, to try and deal with Indians and buy their land from them, buy out their rights and resources.

Page Three

Dr. Kew:

Now you can see the logic of that very clearly. It is… its intent is not to…not to, you know, first of all not to protect the indigenes. Although it…it might have had some of that effect. But the intention is to protect the authority of the Crown. Because if you had trading companies coming in and buying up land here and there in Brit…in British colonial territory …they…the Colonial authorities would have had to deal with all those, you know, sub-owners of the land. But by making this law that only the Crown could buy up the land and then they had the…it gave the authority, to the Colonial government. So you …that makes very good sense. And it was merely a restatement of 1763, merely a restatement of what was accepted policy of long standing. Now…it set the…it set the…the terms though for …for Colonial authorities to…to make some purchases in what's now the United States; to make treaties with Indians, buy out their rights, set aside reserves for them, pay them compensation for their indigenous rights and in British law extinguish those rights, you see. It set the…it…it was the…it was the beginning of the American …system of making treaties with Indians and when the …United States was formed …they simply carried on with this policy which had been British policy and proceeded to make treaties with all the Indians in the continental United States.

…Now in what became Canada they did the same. Not everywhere ... the treaties made in Ontario …Linda do you remember the date of the first treaty in Ontario?

Linda Hale:

No I don't.

Dr. Kew:

…Hmm…I don't either. [Laughter.] But it was… sometime seven…it's in the seventeen hundreds, just before the beginning of the…in the end of the [voice unclear] ...in Ontario it would have to be after the contact…of… 1780, does that sound right?

Linda Hale:

yes…

Dr. Kew:

I think it's around then. Well these (Stan is looking in Cumming and Mickenberg that might)…[laughter]. That will have it in there. That by the way is probably best single reference for this subject. It's Cumming and Mickenberg…maybe you could hold that up Stan…it's Cumming and Mickenberg's "Native rights in Canada". It's the authoritative …book on this field. …Well so the…the colonial governments …followed this…this policy in Canada and …eventually in all of Ontario …and the Canadian government after Confederation followed this policy. It was just simply falling in line with standard …accepted policy. They made treaties with the Indians, extinguished their rights, set aside parcels of land, reserves for them. This was done in other parts of the British world too, Australia, New Zealand. So the…the Canadian government followed this too. And eventually all of Ontario, and all of the Prairie provinces, and parts of the Northwest Territories became, all of that land, the native title to it was extinguished by treaty, by formal treaties with the tribes…between the tribes and the central government. It was …sort of verification of the legitimacy or validity of that policy, you see, the fact that those…those treaties were made. But this policy wasn't followed in Quebec, Quebec wasn't…now that…that's a very complex reason why that was the case, but it is for that reason that treaties weren't made in Quebec and nat…Indian land rights weren't extinguished there, that we have the kerfuffle last year over the James Bay …development project and the Indians sort of stalled that for a while and now have got a promise of some kind of settlement of their interests in that land. …And the Maritimes weren't covered by treaties either. Neither was Newfoundland, of course, but the Indians were simply eventually exterminated in…in Newfoundland and quite early in history, and that was a purposeful, intentional practice and it wasn't an accident. But then in British Columbia Indian title wasn't extinguished either.

Now before Confederation…before British Columbia entered Confederation in 1871 …there had been attempts to settle the land question. Governor Douglas had…had a long experience in the fur trade with Indian people and I think was liberally inclined towards Indians and …foresaw the possibility of …problems if this issue wasn't settled. So he tried to settle it. He tried to make treaties. In fact did make fourteen treaties, very small treaties, made with small groups of people on Vancouver Island, …with Salish people around Victoria and Nanaimo, Duncan and …Kwakiutl people around …Alert…what's now Alert Bay. Now what he was doing there was protecting the rights of…of colonists that were coming in and Indians that were being threatened by colonization. There was a coal mine started about that time at…near Nanaimo and the one up …near Fort Rupert and he wanted to be sure that the…the miners, their companies, wouldn't be interfered with by the Indians. And …there were farmers beginning to take up land and he wanted to be sure that they could do so peaceably, and at the same time he didn't want to see the Indians dispossessed of all their rights. Because then there would be problems, you see.

So his policy was to go to the…each group in turn. And they were…(he was really dealing with village groups there, not tribes because there weren't any tribes in the political sense). He went to each village and asked the chiefs what…what land they would like to keep and what…what was their land and he made some payments you see, to them for them giving up their rights in the…in the land surrounding them, and he set aside these reserves. So he set aside small reserves where their villages were, where their fishing camps were, and they were often separate plots of land, and where their cemeteries might be. That set the…the style, if you like, for the…for the creation of reserves all across British Columbia, subsequently. Small parcels of village land were set aside as reserves. Not great big tracts of land to which the Indians were removed, as had happened in the United States in many places and in parts of the Prairie provinces.

In BC he went to the Indians, you see, and asked where they wanted to remain living and there was no displacement or removal of Indians in British Columbia as a consequence. But also, you see, I think nearly a half or more than a half of the Indian reserves in Canada today are in British Columbia. [Laughter]…They're very small pieces of land, you see. Now, that was a result of this sort of policy that Douglas …Douglas began. Now, he didn't pay people very much. I think there's about a hundred square miles of land in the Saannich Peninsula that he …obtained for about two hundred pounds in goods, not cash, but in goods you see and …so elsewhere it was small sums, small payments. He did … guarantee to the Indians, in the areas concerned, their right to hunt and fish in…on…unoccupied land. And …that's been an important factor in some decisions in hunting cases in British Columbia. Subsequently courts have found that…that if…that Indians in Nanaimo, for example, the Nanaimo band have the right to hunt outside of hunting seasons and not to observe bag limits. They are not bound by the other rules that apply to other citizens. Because of this…this was the main argument for that court decision. Now, so Douglas, you see was, (Stan and I were talking before supper and I want you to see)…we can look on Douglas as kind of a…a red rose sort of a person because he was trying to settle the land question. But it's ironic that if he had of changed the settlements throughout British Columbia we would probably, if we have the interests of the Indians close to our hearts, then…we would probably damn him today because he would have extinguished all Indian rights for paltry sums like two hundred pounds for a hundred square miles, you know. And Indians would have…not the same sort of claim that they have today. Well…I think in the balance, though, we have to find that Douglas was a…was a fairly liberal, good intentioned …person.

Page Four

Dr.Kew

Now he tried to persuade the colonial government to extend these treaties, make them on the mainland. But they didn't have much money, the Imperial government wouldn't come forth with any money, said you'd have to raise it locally and so he had to let it slide. He didn't make treaties with the mainland people. He went to some of the reserves in the Fraser Valley and said, you know, "what would you like to have as your…your land", and he marked out, or had his agents mark out, some lands to be reserves in the future…in the future, but these…he couldn't achieve before Confederation.

Now, what happened at Confederation, you see, there was a neat requirement that the…the colony of British Columbia asked of the federal government. It was that the federal government would treat the Indians with as liberal a policy as the colony had here-to-for, you see…[laughter], which is a neat way to make things look good afterwards. …Because, in fact …the…the colony hadn't been very liberal at all. Now, but at Confederation you see…now under the…the terms of Canada's constitution, the BNA Act, which says that the federal government has legislative authority over Indians and Indian…and lands reserved for Indians. And everywhere in Canada you'll see that's the case today. Indigenous people and, you know, a court decision in 1938 or so ruled that Eskimos were Indians for the purpose of that……within the meaning implied by in the BNA Act. So that the federal government, you see, has legislative responsibility and responsibility for their land. And this has been extended sort of beyond the…the…the narrow terms of the BNA act, so that the federal government, historically, in it's administration has taken responsibility for administering all Indian affairs. Not just legislating for Indians and seeing to their land, but for carrying out social programs and educational programs for Indians right across Canada. The federal government hasn't shirked its responsibility that was initiated and implied in the BNA Act. It's gone, you know, more…it's done more than it, sort of, constitutionally would be required to do. And at the same time provincial governments have shirked the responsibility towards Indians as citizens, you see. So that …fed…provincial governments have not provided social welfare, not provided education and other sorts of services to Indians as they provide to other citizens. Now there's no constitutional reason why provincial governments shouldn't do that. And it is a…sort of a…it's a…an injustice …very clearly in that Indians are the only citizens of provinces that are not given the services which…of other citizens. And it is of course because the federal government has historically taken responsibility. And of course nobody wants to pay for what someone else will pay for. And that's the…the whole story with the provincial/federal discussions of this. Who's going to pay the shot? The province is always eager for the federal government to pay for some service to some segment of its population. Now, when Confederation came about …the federal government, in British Columbia, the federal government took responsibility for Indians and Indian affairs, but under the terms of the union the province got authority over Crown land in British Columbia. Now that wasn't the case in all the provinces in Canada, …the Prairie provinces didn't get legis…didn't get authority over Crown land until very recently?

Linda Hale:

1930's

Dr. Kew:

1930's, right, yeah. Well in…in BC they were smarter or whatever so the…the province…the province got authority over Crown land, you see. Now, and reserves hadn't been established and treaty rights hadn't been extinguished. So right then, from then on, the scene was set for the buck-passing that has been going on right up to the present. The federal government has said, "let's settle the Indian land question". We have…you know, we want to get that settled and the province has you know, backed off. And the federal government couldn't do it alone because it had no authority to grant lands, to settle any claims, to create larger reserves. You see, it requires the joint coordinated agreement of both senior governments to do anything in this. And there's been a lot of buck-passing by both governments.

So treaties were not made and settlement continued and obviously something had to be done because Indians were clamorous for a settlement. They were protesting, they were petitioning …the colonial government and they were petitioning the new provincial government, the federal government, …they were sending delegates to Victoria and eventually to Ottawa and even to London. They…they wanted the thing settled; they were in effect asking for treaties to be made, some guarantees of their position. Now, one of the first things that was done, there had to be some kind of practical satisfaction given to the Indians, and the first thing was the establishment of a joint Provincial/Federal Commission in 1876. And it lasted until 1908, 1876 to 1908.

Joint Federal/Provincial Commission and its function, its purpose was to establish Indian reserves. But note that it had no authority to make treaties or to extinguish Indian rights at all. It merely had authority to establish Indian reserves. And it got very busy and went about the…about its business doing this…and it sort of followed the…the policy that, as I said, that Governor Douglas had instituted before.

Now there were some Indians that…that couldn't understand what was happening. The Indians from the Tsimshan and Nass Indians in the north-coast. …Some of them didn't meet with the commission, refused to have anything to do with them. …Kitwinskole (Kit-wan-cool)tribe is a case in point, just wouldn't meet with them. Others met with them and the chiefs recorded …minutes or translations of proceedings are available, so the chiefs asked questions like: oh…"How can these men come here and…and give us land?" "How can the Queen," they asked "give us land? We don't understand this. We never gave the land to the Queen, We've lived here all the time. How can the Queen think that she can give us land?" They couldn't really understand what was…I mean, you can…you can see why. It's just this incomprehensible thing that was happening to them. In some places …there was more or less acceptance of what was happening, …but whether that was an understanding of the legal thing that was happening to them, you know, it…it couldn't have been a full understanding of…of the…of the historical process that was going on.

Page Five

Dr. Kew:

You know, it…it could've have been an understanding in the light of what white people were anticipating that, at that time, namely, increased settlement, expansion of the white population, and the … you now, the …the taking over of what had been Indian land. The Indians could not…because they had no experience of this and, you know, couldn't understand that that was about to happen to them. Now, if they had understood that, they might have, you know taken a different stand. In some cases they were…they were…they gave answers to the commission, "yes we want this piece of land, that piece of land." So there was a little, in a way, consultation with the Indians. And most of the villages were made reserves whether the Indians asked for it or not. Occupied villages were. So it was in some sense, it wasn't really unfair, you know. Could have been worse, I guess. But …it was essentially a unilateral process of establishing…establishing Indian reserves. There was no formal meth…means for the Indians to protest what was happening or to put any authoritative…to have any authoritative input into what was happening. It was unilateral on the part of the two senior governments. Now that went on for quite a few years, you see, over thirty years. And finally it came to an end in 1908. …Not all the…the bands had been given reserves and there was continuing discontent on the part of the Indians and on the part of the provincial government.

So no new reserves were created there for a while. But in 1912 another commission was established by a second agreement between the federal and provincial governments. This was the so called McKenna-Macbride agreement between McKenna, I'm not sure what position he held, he was a representative of the federal government, and Macbride, who was the Premier of the province at the time. This is another joint agreement and it was to settle the Indian land claims…land question once and for all. [Laughter]…But again, what this commission had the authority to do, there were two (I think it was two) two provincial and two federal appointees and a chairman nominated …by the…the four. What this commission had the authority to do, was to establish new reserves, to add to existing reserves, to reduce the size of existing reserves, and that's all. It didn't have authority to make treaties or to …limit or extend Indian rights. It merely had the authority to increase, reduce, or expand…Indian reserves. And it set about a formal procedure where the…for four years, the commission went around. I don't think it took them quite four years, but they did go up…right throughout the province asking each band, by this time the federal government had organized the bands into political groupings for administrative purposes, that we called bands. That was the term they used. And they had…some of them had Chiefs …elected, some…, most of them but, at that time were Chiefs by traditional right and they were…they…So…this commission went around to all these administrative units that had been set up, you see, and asked the Indians again whether they had enough land, whether they wanted more land, …whether they were using the land they already had? And there was a procedure established that they were supposed to follow for hearing these petitions and making decisions. And in the case of lands that the Indians didn't need, the procedure called for …those lands to be taken away and they were to be sold, and half of the monies were to go to the federal government and half to the provincial government. The federal governments portion was to be held in trust, by the federal government, for the Indian group concerned that had given up the reserve land. But no land was to be taken away from the reserves without the consent of the Indians. That was to be req…that was required.

Well the commission met in 1916, four years, in 1916 it published a report. And in that report they recommended and they created a lot of new reserves, places which hadn't been met…hadn't been touched by the previous commission, especially in out of the way areas in the interior, and the coast. So, they created new reserves and they added some land to reserves and they cut off, they took away quite a bit of reserve land. The acreage they added was over twice what they took away. I forget what the figures are, but very much…they added much more land to reserves than they took away. But the value of the land they took away was…exceeded the value of the land that they granted anew to Indian reserves, and it's easy to see why: because they took away some of the choicest real-estate, you know, like …a piece of land in Victoria harbour, and …where the North …end of the Lions Gate Bridge now is. They took a big chunk of land there away from the Squamish band. They took away part of the city of Penticton is it? Part of Osooyos? …It was at the same time that the False Creek …reserve, where the Planetarium is, was taken away. So they…they…they, since the Indians weren't using it sufficiently, so they took it away, you see. …That was the logic.

Now, in none of these cases did the…this commission go through a proper procedure of consulting with the Indians and getting their permission for this. And since that time the Indians have opposed the decisions of this committee. They opposed it very forcefully in…at the time, 1916, when the commission ended and published a report. That was the time when the Indians formed The Allied Tribes of British Columbia and it was a direct attempt to…to stop the proceedings and ratification of this …decision, because they could see very clearly what was happening. They were being robbed and so they banded together formed this Allied Tribes Association in an attempt to stop this, you see. …Well now, to just stop for a minute here, "cut-off" lands, the term "cut-off" lands: this is what we're talking about. It is land that had…had been granted…to the Indians of BC as reserve land and then had been taken away (or "cut off") at the time of this …commission. So that's what "cut-off" lands are and the grievances about "cut-off" lands like the Lions Gate approach and Penticton and Osoyoos and various other places, that people…some of those people were picketing and handing out placards on this, last summer. So those are the "cut-off" lands.

Now what happened after that …after that, is that the…the Indians formed this Allied Tribes, they opposed the ratification, and they actually stalled it for …some seven years. I think it was 1923 before the government…the federal government ratified the decision of this committee. In that time, the commission had actually been disbanded and there were some people that were sort of cleaning up things. They even made decisions then that…that removed land and added land, and changed the decisions of the other with no consultation whatsoever of any of that with the Indians. Now the Indians conceivably could have taken this to the courts. They never have. I think, maybe wisely. They were not a…they were not very trusting of the outcome of a court decision on this, you see. They would have to ask the court to disallow the findings of this commission, which is a pretty serious thing to. It would be rather putting all your eggs in one basket thing…basket I guess to put it to put it on a court decision. So they never took it to court. They tried to fight it politically by petitioning Ottawa. They did stall it for seven years and finally …the government…the federal government ratified it. They never have been…neither government has been very sure of…of this though because they…they…although they sold a little of this "cut-off" land they never, they didn't sell it all. They stopped selling it quite some time ago because they were…they, perhaps, had misgivings about this, you see. And re…recently both governments have said that it was a…it was an improper process and that …the "cut-off" lands should never have been cut off. See, it wasn't properly done.

Now, but … this didn't happen for a number of years and the Indians were very discouraged in 1926. Finally, the Allied Tribes (three years after ratification) they…they were able to present their case to the…to a committee of Federal, House of Commons and Senate. And the House of Commons is…they just… this committee just turned them down. Said "no you have no claim, go away" "don't…don't waste your time fighting this issue," is what they said to the BC Indians. And they were very discouraged at that time. Reverend Peter Kelly was one of the …Haida who was a leader and an advocate in that issue …recounted years later, that he personally felt defeated at that point. He had worked so very hard for a number of years. They'd collected money to the reserves to pay their way to Ottawa to try and fight this claim and it all came to nothing. Further more, in 1927, the year after they disallowed this claim, the government passed …a clause…a new…added a clause to the Indian Act that made it illegal for Indians in Canada to solicit funds to prosecute …an aboriginal claim. Now, you should…[laughter]…write that down in your head, because that it is just about as oppressive a piece of colonial legislation as you could find in the world. And if any, you know, modern government did that today, there'd be, you know…questions in the UN and so on and so forth. …Now that…that further discouraged the Indians. To be fair, I think you should know, that as far as I know, there never was a prosecution under that …clause of the Indian Act. But it is a fact that…that in BC the Indians really …they…their political agitation slowed down for a while after that. Not entirely. It did have a resurgence eventually. That clause in the Indian Act disappeared in 1951 with …when there was a series of major revisions. It's important, really, because I think it indicates the lengths to which …the federal government was prepared to go, you know. And …well intentioned you see, of course, like all…you know, you can find good…good reasons for all bad legislation, I guess. But the Indians are just wasting their time this issue, you know, "don't collect any more of your poor peoples money to do these foolish things". But it does indicate the…the preparedness of the federal government to push the issue far. Well I've got to hurry up here because I'm getting behind.

Page Six

Dr. Kew:

…Now the Indians petitioned and appealed for years and as we come up closer to the present, the pace of these petitions and appeals and agitation has increased as you would expect. The film you saw, I understand last week, …was a film of one of these step-ups in agitation. That was the 1967 …request by the Nishgas for the BC courts to declare that the Nishga had aboriginal title. You see, all along since Confederation, provincial authorities have been saying, "well, there's no basis to the Indian claim, they don't have title". Governor Trutch was a leader in this position, saying that, "there is no such thing as Indian land rights, you see. They don't have any rights at all". Denying it. Now the Nishga in that court case asked the court to declare simply that they had title to their traditional land. And that dragged on. It went to the decisions of lower courts. I forget the sequence now. One found in favor, one against, and it was eventually appealed to the Supreme Court of Canada that rendered the decision in seventy-three. Did you discuss that decision last time?

Linda Hale:

no not yet,……

Dr. Kew:

Yeah, yes, there was a split. There were seven judges that finally rendered the decision. Three found in favor of the Indians, three against the Indians case and one found against the Indians on a technicality, namely that they didn't have permission, they didn't have fiat to…to take issue with the government. At that time in…in BC …you had to have the permission of the government to sue them, take issue with them, you see. …That's an old…that's an old British point of law that's now gone in British Columbia and, I think, everywhere else in Canada. It's …you know it's a…an outmoded …thing. But this judge found, you know, let that technicality decide the issue for him, even though one of the judges found in favour of the Indians, made a powerful argument against accepting that very argument, you see. Now, so the Indians lost the case, but not really, because the most forceful decision was one registered by, this is a written decision, something like a historical…a paper in history really. It's a…it's an argument, documented and it's a very, very impressive piece of scholarship by Emmett…Justice Emmett Hall. And this is just so…such a forceful argument for the validity of the Indian position that …well, it had the most effect. I think, there's no question that it was the forcefulness of that argument on the losing end of the case, that led very…within a couple of months, to the federal government's decision to openly recognize the validity of the aboriginal claim in British Columbia. And this…the federal gover…the Liberal government…the present government did. They said publicly, "The Indians in British Columbia have aboriginal title to the land". This is exactly what the Nishgas were asking the courts to decide. They didn't say this, but you see, they won a political decision that had been really forced, I think, partly by the…the court case. Now, and that's where the situation is today.

You see, since 1973 the federal government said the Indians have aboriginal title to British Columbia. Now the question is, What does aboriginal title mean? And this…this…aboriginal title has meaning within British law. It's mentioned in…in, lets say, part of the proclamations, the Royal proclamations, and it and it has been given additional meaning by court cases that have decided on issues affecting Indians. And what it means is, to over simplify, it means that Indians who have aboriginal title have the right of occupancy of land. They have the use rights of land, that is the use of resources of the land. They have…they have …prior claim on occupancy and use rights. Now, they don't have sovereign title like a nation and they don't have title you know in a in fee simple such that they can sell land …legally in Canada. They can't do that. The only way, legally, that they can…you know…they can't sell land and giving a title to it. What they can sell is their aboriginal right or aboriginal interest. It's usually linked to interest of occupancy and use rights of resources. Now they can sell that. And that was what Indians in the rest of Canada were doing when they made treaties. They were selling those rights. Even in treaties though, (to another aside) Indians did not sell all their aboriginal rights, because the treaties in the Prairie provinces specifically guaranteed to the Indians their right to hunt and fish on unoccupied land, and those are still retained by Treaty Indians and even non-Treaty Indians in Canada.

Well, that's a very important thing you see…if…if that declaration by the federal government, because it meant, at last, that the Indians had some, with some formal recognition that they had rights that hadn't been extinguished, and that this opened the door to their further requests, and more forceful requests, for a settlement of those rights, you see. Because now, it's not just a matter of…of buying out their interests, but of compensating them for lost interests. And that is a…that is also …you know a practice, that's well established in…in law. It's certainly in the United States. And the decisions have been, interestingly enough for Canadians, decisions of American courts on these issues …can be used by Canadian …judges in deciding a case, you know. Because it is the…the same sort of …parallel applies and their logical arguments, and so on. And you find frequently …American legal precedence and decisions cited in decisions of Canadian courts, which is really interesting.

Page Seven

Dr. Kew:

One of the obvious precedences for a settlement now in BC is the recent settlement in Alaska, where natives of Alaska, you see, were given large tracts of land and…and large amounts of cash monies and certain interests in resources, in Alaska. When Alaska was sold to …the United States you see, the…the Russian government had made no treaties, …at all. And so the…the interests of, (this is the American courts decision), the interests of the Aborigines of Alaska was retained in Alaska, and had to be extinguished by the …federal government of the United States. That's just a recent decision about four or five years ago.

Now, so the protests last summer were really given their thrust by this…by this …background… this historical chain of events that I've recapitulated for you. And what people were asking were, for the BC government to negotiate on the "cut-off" land issue. You know, give us back our land. The federal government was more willing to do that, and a lot of pressure was put on the provincial government, over the summer, to get involved in that discussion. And pressure on both governments to…to start negotiating the general land claim. There's two separate issues, you see. The aboriginal claim is for the total province if you like, except that part that's extinguished by treaties. That's not even all of Vancouver Island. But the "cut-off" land is entirely separate. That is a claim for returning of lands that were already granted at one time, and were taken away illegally. And the governments have admitted this, the impropriety of that reduction. Its just a matter of working out how it's done, but the governments have been dragging their feet. So the Indians were putting pressure on for that reason. And, finally, this summer, a new kind of a…tactic emerged in among the Indians and that centered on their protest against the Department of Indian Affairs' (the occupation of Indian Affairs Offices). And what they were asking for was independence from that administrative system. They took the form of a rejection of federal funds. And what it was saying, you know, the logic of it was this, "We own British Columbia. We…we…We, you know, we have …we have rights in the resources of British Columbia, and here we are petitioning each year for piddley little economic development funds from the federal government, piddley little housing funds, petitioning for welfare payments, when we are wealthy people in our own right or ought to be, because of the fact that we have this interest in the land. To hell with your handouts," was the things they were saying. "We …we want what is rightly ours and we're not going to be satisfied with …welfare." …They…they went a little further in some places in British Columbia. They went so far as to say, "we're going to reject your funding and your welfare and we'll hunt and fish, when we damn please, to hell with your regulations". And they proceeded to do this in a few places, you see. And …they began to block some roads with…saying …"you can't use this land, you know, …if you want to…if you want to go through here you'll have to…you'll have to do something. You'll have to recognize our prior claim," or…or put pressure on …your own people to…to satisfy our claim". That was the logic of it. They went even further in the Nass Valley. Indians blocked there the logging roads and wouldn't …wouldn't …renew …logging, permits of logging companies to…to move trucks and logs over some Indian territory. And in the Nazko and Clusko (sic)area west of Quennell they…they have blocked …logging development. Saying, "this is our land, you can't come here any more" …And …[laughter] "when you settle our claim, then you can come here, maybe". …The Alkali Reserve near Williams Lake…near the end of the summer proclaimed its independence. That was how they phrased it. And drew a line on a map, and said "this is our land and we're going to use everything there as we please". And the Chief went and got a loan from the bank and purchased some logging equipment, and I'm not sure if he's done so, but his threat, then, around the end of September was, "when we're ready we're going to start cutting timber on Crown land and we don't care about getting a permit or paying …stumpage or whatever. It's, that's…those are our trees and we're going to sell them. There's a market here". …Now, this is taking the whole thing a step further. And it's a very forceful kind of protest.

Now, quickly, I'll take a couple of minutes. What's been the result of all this protest over the summer? It…it took various forms. It…they…the protests against the…the federal government was mainly in the form of sit-ins in Department of Indian Affairs offices and the rejection of funding. Well, first of all, the BC government has come around on the "cut-off" land issue. Whether it was, you know, directly a result of the protests over the summer, you can't really say. It must have had some effect. So the…the BC government has…has sat down and…and they have returned a token hundred acres of this "cut-off" land to the Indians concerned, the Indian bands concerned. …When that was reported in the daily Province in Vancouver it…was put in these terms "BC Government makes gift to Indian band". [Laughter]…Well, I don't know if it's a comment on…on how things can become redefined to mean something else, but I think on the…the ignorance really of reporters who…who write up by-lines. Because, you see that…how can something you stole, when you return it, become a gift, you see? That's essentially what that was saying. But…but so the BC government has moved. And there has been some progress toward settlement of the general claim. The federal government is…is willing and they have, ....Buccanan, the Minister, has said publicly that "he is going to see that negotiations begin by March, this coming March". The Province is still dragging its feet on the general land claim issue.

MISSING AUDIO

Our interests, what will we say. They said this. That they…they will look on their interests in two…two ways. They look on it as a joint interest in common of all Indians in of all of BC. And then special interest of certain groups to certain areas. And …they are looking for compensation in the form of money, land and proportions or shares of resource revenue. That last, is probably most important, because you see it won't go out of style…it won't go out of proportion with inflation. Money is a poor settlement, but a ten percent interest in timber royalties is something else again. Or, I…I'm just throwing that figure out, you see. But an interest in…in resource revenue is something else, again. Those are the sorts of things that they are going to try to obtain for settlement, yeah. But I think that's there's no question that they're going to say, you know, "get off our land". They're not going to say "Vancouver city has to move or Osoyoos has to move". …they will…they will have a…a clear claim for …compensation of access to those areas. What that will mean in dollars, you know, nobody knows. what that will mean in dollars or revenue, nobody knows. It's a…it's an open de…but the…but the important thing for the Indians, the achievement of the last years, is that there is this political recognition of this, called their aboriginal title, And that has meaning. It has meaning legally and political, too, but especially legally. Because you can take the issue to court and you know our courts are just and if you…[laughter]…if you have a claim then…then the courts will say. [Inaudible segments] [Laughter]…yeah. The…the possibilities are kind of mind-blowing, you see. Now they 're the same sort of saying as, last week the Indian Association of Alberta announced that they were going to lay claim to this Alberta Tar Sands, Now, you know, [laughter]…you know, and they…they will very soon, you watch the papers, because very soon there's going to be some probably legal tactic. They'll either ask for a court to…to grant an injunction to stop development or …some kind of a…a guarantee of Indian interests in what's coming out of that. So it's a bi…it's a big issue. It effects all of us very importantly.

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