June 2004

In these tumultuous times of raging wildfires and the ‘dead-heat’ federal election, we’ll pick up where we left off a couple of months ago with the historical overview of the Aboriginal title situation in BC. 

Shortly after the McKenna-McBride reserve commission had been carried out in BC, Department of Indian Affairs senior federal official, Duncan Campbell Scott, proposed some stipulations in relation to dealing with the land question.  The first was that indigenous peoples surrender their title and accept benefits that had been designated in the numbered treaties and accept the recommendations of the McKenna-McBride reserve commission as being final.  Another stipulation was that, should the land issue make it to court, legal council for the indigenous people would not be of their own choosing but rather designated by the Department of Indian Affairs. These options were refused outright by the Allied Tribes of BC and they continued to pursue their case by petitioning the Judicial Committee of the Privy Council in London for a hearing.  

Also of significance during this timeframe was the 1921 ruling handed down from the Judicial Committee of the Privy Council in London that served as the highest court for Canada until 1949.  The 1921 ruling of the Judicial Committee explicitly stated that Aboriginal title throughout the British Empire was a pre-existing right that “must be presumed to have continued unless the contrary is established.  This ruling was of relevance to all indigenous peoples throughout the British Empire, which of course included British Columbia and Canada. 

The clarity of this fact was not lost upon the governing powers and their reaction was to ensure that the Aboriginal title issue stayed out of the judicial system at all costs.  The government’s next approach was in response to the Allied Tribes’ request for a hearing by the Privy Council in 1926.  This resulted in the establishment of a Joint Commission by Parliament made up of members of the Senate and House of Commons to hold hearings and make recommendations on the issue. 

The Joint Committee held hearings during the spring of 1927 and their principal finding were against the Allied Tribes of BC. A major recommendation of the Joint Committee was to stop further fund raising efforts to pursue the case of Aboriginal title.  As a result, in 1927 it became illegal under the Indian Act to pursue legal avenues for recognition of Aboriginal title. 

Simultaneously during this timeframe, the provincial government was treating all land in BC as if it legitimately belonged to them to benefit from and dispose of as they saw fit; indigenous peoples were protesting, developing petitions, hiring legal council in defence of Aboriginal title; and the federal government was actively sidestepping legal standards of its mother country while implementing the Indian Act system. 

When we stand back and take a good look at how the pieces of the larger puzzle fit together in the Aboriginal title situation in BC, we arrive at a clearer understanding of how our current situation developed.

Cathy Narcisse First Published in Bridge River Lillooet News June 2004
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