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Treaty Troubles: More than a Century in the Making

In BC, a lone white official who sensed the complexity of First Nations kinships and land use was tragically ignored. Second in a series.

By Carly Wignes 12 Dec 2012 | TheTyee.ca

Carly Wignes is a Vancouver-based journalist recently graduated with a diploma from the journalism program at Langara College.

This project was funded by the Jeani Read-Michael Mercer Scholarship for Journalism at Langara College, endowed in honour of late Province columnist Jeani Read by her husband, the late screenwriter Michael Mercer.

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Gilbert Malcolm Sproat was assigned by the BC and Dominion governments in 1878 to allocate land on which First Nations would live, separated from incoming settlers.

[Editor's note: The 20-year effort to create modern treaties between B.C. First Nations and the federal and provincial governments has not produced many agreements. Underlying the challenge are complex structural relationships between First Nations that more than a century of colonial influence has aggravated. This four-part series by Carly Wignes looks at the deep tension one potential treaty has created, how others have succeeded, and the complex history that makes it so difficult to redress longstanding inequity.]

Gilbert Malcolm Sproat admitted that he was not prepared for what he discovered as he travelled throughout British Columbia in 1878. "Places very dear to the Indians had been taken from them," Sproat wrote to his superiors in Ottawa. "In several instances they had been deprived of their cultivated fields without compensation." The B.C. and Dominion governments had jointly set up an Indian Land Reserve Commission to resolve the many land disputes that flared throughout the province between the First Nations and settlers. As the sole commissioner, Sproat toured the province to allocate land on which indigenous people would live, separated from the incoming settler population.

Did he and his predecessors have any idea of the implications their decisions would have more than a century later?

Before European contact in the New World, families and tribes along the West Coast often moved from one area to another according to the seasons and the availability of food they harvested throughout the year. Usually, families shared territory for harvesting, hunting, fishing and gathering with members of their extended family tree, which served as the basic social unit for First Nations. But when the Dominion government created reserves and band councils, huge indigenous nations were broken into smaller administrative units that split communities and families apart and created the foundation for new social and political structures with which First Nations from younger generations would identify.

"Community" would be understood not only through traditional kin relationships but also through the permanent reserves or villages that the government created. Later, when the modern treaty process required First Nations to define the specific geographic boundaries of their communities, they faced a difficult choice. They could choose to define their property based on their original reserves and villages or they could broaden the boundaries according to their traditional understanding of property and include the territories that connected people based on their extensive family lineages. Either way, overlapping claims to traditional land were inevitable.

Today, resolving the overlaps is one of the major obstacles to finalizing treaties in British Columbia, and one of the key reasons why just two treaties have been implemented in 20 years. The treaty process does not require a First Nation to prove its land claim using the kind of evidence they would need to present in court. Instead, according to the treaty commission's criteria for the first stage of the process, the description of land that a First Nation claims is supposed to be a "distinct traditional territory that is generally recognized as being their own." But the treaty commission said resolving shared claims over the land has been a "pressing issue" that has "pitted First Nation against First Nation in disputes over jurisdiction in contested traditional territories and over appropriate uses of the land."

Nowhere in British Columbia is this more apparent than among the Coast Salish Nation, whose currently registered 18,000 members are divided into dozens of administrative bands. "The Coast Salish are into now 60 separate bands through colonization, and they're still one nation," said Eamon Gaunt, who works as a treaty analyst for Cowichan Tribes in Duncan. Yet that tribal nation's many First Nations each have a unique identity, administration and history that has developed since their individual band councils were first established. Some historic villages are not populated today by families that have been there for generations. "They might have moved there in the last 50 years," Gaunt said.

Sproat's advice wasn't taken

As settlers came to B.C., the British Crown initially compelled its subjects to reach formal "land surrender" treaties with the several hundred thousand people who inhabited what would become British Columbia. The Royal Proclamation of 1763 directed colonial administrators to negotiate formal treaties with the original inhabitants of the land, as if they were members of other independent countries, to recognize the territorial rights of the indigenous peoples. The newcomers could buy territorial rights through fair negotiations. Ideally, the original inhabitants would get land to live on and certain hunting and fishing rights. Yet while treaties were the norm across the country that was emerging as Canada, few were negotiated in B.C. (Only 14 land settlements were signed in British Columbia when the second governor of Vancouver Island, James Douglas, exchanged cash, clothing and blankets for about 570 square kilometres of land in the early 1850s.)

The first reserves along the Lower Fraser were created when 33,000 miners flooded the area in search of gold. When the miners left, British settlers moved in and began to establish farms. During Sproat's time in the region, his understanding of the intricate relationship the indigenous people had to the area grew steadily. Sproat wrote to Prime Minister John A. MacDonald to explain how indigenous people from various settlements along the river returned to the canyon each season to fish.

"Indians on this lower portion of the river are one people" who "claim to belong to particular villages" and "move about constantly from one place to another," he said. The canyon fishery reserves, he explained, thus had unique requirements from elsewhere in the province because they would have to accommodate the interests of a much broader group. He suggested the government "take a view as to the people as a whole" before assigning land to individual tribes.

Despite Sproat's plea, federal authorities appointed chiefs and band councils and adopted a policy that designated single village communities as the legitimate administrative unit. They also created membership rules where an individual could only be a member of one band at a time.

The first stage of the current 20-year-old treaty negotiating process requires a First Nation to identify the "geographical area of the First Nation's distinct traditional territory." Usually, band members will go to their elders and ask where the borders should be drawn. The elders will often draw lines that show where traditional village sites existed, but they will also include lines that show how people are connected to areas through family relations. The lines of their claimed traditional territory end up linking and overlapping.

Just as you can only be a member of one band, you can also only receive benefits from one treaty settlement. To participate in the treaty process, First Nations people must decide how they will exercise their property rights using the colonial definition of property that was imposed on them.

It's critical to understand that First Nations connect through village and kin and "not just the reserves of the government," University of Victoria anthropologist Brian Thom told The Tyee. "You are who you are in terms of where you live, but you also are who you are through your family, and those two axes are fundamental in understanding Coast Salish social and political organization. Any individual's family tree will connect to a huge number of places throughout the Coast Salish world."

Without this understanding, he said, "we're going to miss out altogether on all the rich functionings of society," including "all the very healthy and amazing ways" that First Nations people have adapted to the environment for over a thousand years.

Incomplete agreements

The land claims of almost every First Nation in the province could overlap or be shared with neighbouring groups. But the details of the overlaps don't need to be fully worked out before a treaty is signed, and that has led to agreements that fail to fully recognize the claims of neighbouring communities.

When the Tsawwassen people, located in South Delta between the Roberts Bank port facility and the BC Ferries terminal, moved toward settling the province's first urban treaty in 2009, Cowichan Tribes, located on Vancouver Island, protested the agreement. Though based out of Duncan in the Cowichan Valley, the Cowichan people claim land in areas along the Fraser River that were to be included in the Tsawwassen Final Agreement. The two groups worked out a mediated arrangement that Thom described as a "passable solution" at best. When the Nisga'a First Nation in northwestern B.C. finalized a treaty that included nearly 2,000 square kilometres of the Nass Valley watershed, the neighbouring Gitanyow people disputed their claims to the area. "That's a mess," Thom said. "That's a real mess."

Political pressure to see treaties completed has become increasingly intense -- not only because of the hundreds of millions of dollars that have been spent on the process but also because First Nations have spent decades in patient pursuit of land claim agreements that were supposed to be negotiated long ago.

Thom says if First Nations really want a treaty with governments, "irrespective of their overlaps," they are going to get it. "If there is a territorial dispute between Tsawwassen and their neighbours, or between Nisga'a and their neighbours, you look at the record," he said. "The practice has been government will sign the treaty to anybody who will sign with them."

What would Gilbert Malcolm Sproat think?

Tomorrow: Part three of this series will look at Lieutenant Governor (Chief Commission of Lands and Works) Joseph Trutch's hostility to Indians and the death in B.C. of the 18th-century treaty process, and how that legacy plays out today.  [Tyee]

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