Sir James Douglas
Governor Douglas followed the fundamental principle that native people have the right to use and to occupy their traditional lands or to receive compensation for the loss of these lands. (This principle was outlined in the Royal Proclamation of 1763 which promoted and clarified the rights of native peoples over their traditional territories. It is often described as the "Charter of Indian Rights.) In the early 1850's, Douglas negotiated fourteen treaties with native nations on Vancouver Island. The land was to become "the entire property of the white people forever." Village sites and fields were reserved for native use and compensation was set at approximately 2 pounds 10 shillings per family.
The text of the treaties read as follows:
The condition of or understanding of this sale is this, that our village sites and enclosed fields are to be kept for our own use, for the use of our children, and for those who may follow after us; and the land shall be properly surveyed hereafter. It is understood, however, that the land itself, with these small exceptions, becomes the entire property of the white people for ever; it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.
The procedures followed were questionable. For example, when the last treaty with the Sneneymexw was concluded in 1854, there was no text and, in place of signatures, 159 identical marks were made for the Sneneymexw people (who did not speak English and may not have understood the full implications).
Courts have consistently upheld these land purchases as treaties. In R. v. White and Bob, 1964 the right to hunt on unoccupied land was confirmed. In 1987 the Tsawout Band successfully obtained a permanent injunction restraining the construction of a marina in Saanichton Bay on the grounds that it would interfere with the fishing rights promised in the 1852 treaty.
There is little agreement about the relationship of these treaties to the B.C. Treaty process. Some Nations, e.g. the Esquimalt, argue that as the Crown did not keep its word in the Douglas treaties, there is no point entering into new treaties. Others, e.g. the Temexw Treaty Association, expect to retain existing rights and look for the treaty process to deliver both more land and rights than granted in the Douglas treaties. The Federal Government insists new treaties must redefine the vague provisions of the Douglas treaties. One difficulty is that the Temexw Treaty Association claim that the Douglas treaties confer hunting and fishing rights on the descendants of the signatories (all the present members of the band), that is, they are individual rights, whereas any rights negotiated in a new treaty will be communal rights (constitutionally protected fishing for food, social and ceremonial purposes). Compensation in the form of money is unlikely to be sufficient to smooth over these divisions.
After the Douglas treaties
After the the initial treaties were signed and development moved north of what is now Port Hardy, the treaty process broke down. Funds from colonial sources were denied for land compensation and successive colonial governments chose to ignore the issue or deny outright the existence of native title to their land (Tennant). At the same time the discovery of gold in the Cariboo boosted an economy beyond the trade of furs and the mining of coal. A service industry grew from the needs of the flocking fortune seekers, Miners and Indians began to clash. In a matter of several years, natives changed from being partners in trade to obstacles of progress.
(A Nuu-chah-nulth chief to George Sproat, 1868)
Douglas (now the Governor of the colony of British Columbia) recognized his colonial responsibility to acquire land for the Crown and for the influx of settlers. He also assumed that natives would be able to claim their traditional lands for themselves. (Reserves were thought to be a place for the elderly and the infirm; larger tracts of land could be preempted or settled as homesteads by natives using the same process as was place for settlers.) Because of this understanding, Douglas granted only 10 acres per native family - much less than in other parts of Canada. After Douglas retired, natives were restricted in their ability to preempt land and the 10 acre allocation became the norm. This process was seen by the European community as progress. An editorial of the "British Columbian," 2 December 1865 stated: "Colonization necessarily involves the contact and practically the collision, of two races of men - one is superior and one is inferior, the latter being in possession of the soil, the former gradually supplanting it. . . . Everywhere, in obedience to what appears to be a natural law, the uncivilized native has receded before the civilizer."