Calder et al. v. Attorney-General of British Columbia

Calder et al. v. Attorney-General of British Columbia
Collection
Supreme Court Judgments
Date
1973-01-31
Report
[1973] SCR 313
Judges
Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe; Laskin, Bora
On appeal from
British Columbia
Subjects
Aboriginal law
State
Decision Content
Supreme Court of Canada
Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313
Date: 1973-01-31
Frank Calder et al., suing on their own behalf and on behalf of All Other Members of the Nishga Tribal Council, and James Gosnell et al., suing on their own behalf and on behalf of All Other Members of the Gitlakdamix Indian Band, and Maurice Nyce et al., suing on their own behalf and on behalf of All Other Members of the Canyon City Indian Band, and W.D. McKay et al., suing on their own behalf and on behalf of All Other Members of the Greenville Indian Band, and Anthony Robinson et al., suing on their own behalf and on behalf of All Other Members of the Kincolith Indian Band Appellants;
and
Attorney-General of British Columbia Respondent.
1971: November 29, 30; 1971: December 1, 2, 3; 1973: January 31.
Present: Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Indians—Aboriginal title to lands—Territory occupied by Nishga Tribe—Extinguishment of title.
Crown—Sovereign immunity—Claim of title against Crown in right of Province—Absence of fiat of Lieutenant-Governor—Court without jurisdiction to make declaration requested—Crown Procedure Act, R.S.B.C. 1960, c. 89.
The appellants, suing on their own behalf and on behalf of all other members of the Nishga Tribal Council and four Indian bands, brought an action against the Attorney-General of British Columbia for a declaration “that the aboriginal title, otherwise known as the Indian title, of the Plaintiffs to their ancient tribal territory… has never been lawfully extinguished”. It was agreed that this territory consisted of 1,000 square miles in and around the Nass River Valley, Observatory Inlet, Portland Inlet and the Portland Canal, all located in northwestern British Columbia. The action was dismissed at trial and the Court of Appeal rejected the appeal. With leave, the appellants then appealed to this Court. Held (Hall, Spence and Laskin JJ. dissenting): The appeal should be dismissed.
Per Martland, Judson and Ritchie JJ.: The Royal Proclamation of October 7, 1763, which the appellants claimed applied to the Nishga territory and entitled them to its protection, had no bearing upon the problem of Indian title in British Columbia. The history of the discovery and settlement of British Columbia demonstrated that the Nass Valley, and, indeed, the whole of the Province could not possibly be within the terms of the Proclamation. The area in question did not come under British sovereignty until the Treaty of Oregon in 1846. The Nishga bands, therefore, were not any of the several nations or tribes of Indians who lived under British protection in 1763 and they were outside the scope of the Proclamation.
When the Colony of British Columbia was established in 1858, the Nishga territory became part of it. The fee was in the Crown in right of the Colony until July 20, 1871, when the Colony entered Confederation, and thereafter in the Crown in right of the Province of British Columbia, except only in respect of those lands transferred to the Dominion under the Terms of Union.
A series of proclamations by Governor Douglas between 1858 and 1863, followed by four ordinances enacted between 1865 and 1870, revealed a unity of intention to exercise, and the legislative exercising, of absolute sovereignty over all the lands of British Columbia, a sovereignty inconsistent with any conflicting interest, including one as to “aboriginal title”.
Under art. 13 of the Terms of Union, the charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, were assumed by the Dominion Government. The recommendations of a Royal Commission in 1913 resulted in the establishment of new or confirmation of old Indian reserves in the Nass area. Although it was said that this was done over Indian objections, nevertheless the federal authority did act under its powers under s. 91(24) of the B.N.A. Act. It agreed, on behalf of the Indians, with the policy of establishing these reserves.
Also, the Government of the original Crown Colony and, since 1871, the Government of British Columbia had made alienations in the Nass Valley that were inconsistent with the existence of aboriginal title. Further, the establishment of the railway belt under the Terms of Union was inconsistent with the recognition and continued existence of Indian title.
In view of the conclusion reached as to the disposition of the appeal, it was not necessary to determine the point raised by the respondent that the Court did not have jurisdiction to make the declaratory order requested because the granting of a fiat under the Crown Procedure Act, R.S.B.C. 1960, c. 89, was a necessary prerequisite to bringing the action and it had not been obtained. However, agreement was expressed with the reasons of Pigeon J. dealing with this point.
St. Catharines Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46; Johnson v. McIntosh (1823), 21 U.S. 240; Worcester v. State of Georgia (1832), 31 U.S. 530; United States v. Santa Fe Pacific R. Co. (1941), 314 U.S. 339; United States v. Alcea Band of Tillamooks (1946), 329 U.S. 40; (1951), 341 U.S. 48; Tee-Hit-Ton Indians v. United States (1955), 348 U.S. 272, referred to.
Per Pigeon J.: Although sovereign immunity from suit without a fiat has been removed by legislation at the federal level and in most of the Provinces, this has not yet been done in British Columbia. Accordingly, the preliminary objection that the declaration prayed for, being a claim of title against the Crown in the right of the Province of British Columbia, the Court has no jurisdiction to make it in the absence of a fiat of the Lieutenant-Governor of that Province, should be upheld.
Lovibond v. Governor General of Canada, [1930] A.C. 717; Attorney-General for Ontario v. McLean Gold Mines, [1927] A.C. 185, applied.
Per Hall, Spence and Laskin JJ., dissenting: The proposition accepted by the Courts below that after conquest or discovery the native peoples have no rights at all except those subsequently granted or recognized by the conqueror or discoverer was wholly wrong. There is a wealth of jurisprudence affirming common law recognition of aboriginal rights to possession and enjoyment of lands of aboriginees precisely analogous to the Nishga situation. Paralleling and supporting the claim of the Nishgas that they have a certain right or title to the lands in question was the guarantee of Indian rights contained in the Royal Proclamation of 1763. The wording of the Proclamation indicated that it was intended to include the lands west of the Rocky Mountains.
Once aboriginal title is established, it is presumed to continue until the contrary is proven. When the Nishga people came under British sovereignty they were entitled to assert, as a legal right, their Indian title. It being a legal right, it could not thereafter be extinguished except by surrender to the Crown or by competent legislative authority, and then only by specific legislation. There was no surrender by the Nishgas and neither the Colony of British Columbia nor the Province, after Confederation, enacted legislation specifically purporting to extinguish the Indian title nor did the Parliament of Canada.
Further, on the question of extinguishment, the respondent relied on what was done by way of Acts, Ordinances and Proclamations by Governors Douglas and Seymour and the Council of British Columbia. However, as submitted by the appellants, if either Douglas or Seymour or the Council of the Colony of British Columbia did purport to extinguish the Nishga title any such attempt was beyond the powers of either the Governors or the Council and what, if anything, was attempted in this respect was ultra vires.
As to the pre-emption provision in the consolidating Ordinance of July 1, 1870, on which the Courts below chiefly relied in making the finding that the Indian title in British Columbia had been extinguished, it was obvious that this enactment did not apply to the Nishga lands on the Nass River. The Northwest boundary of the Colony in that area was still in dispute at the time.
On the question of jurisdiction, actions against the Crown in British Columbia are governed by the Crown Procedure Act and this Act provides for the petition of right procedure, which requires that a fiat be obtained as evidence of the consent of the Crown to the action. However, the petition of right procedure does not apply to proceedings seeking declaratory or equitable relief. Furthermore, the validity of what was done by Governors Douglas and Seymour and by the Council of the Colony of British Columbia was a vital question to be decided in this appeal and the Province could not be permitted to deny access by the Nishgas to the Courts for the determination of that question.
APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing an appeal from a judgment of Gould J. Appeal dismissed, Hall, Spence and Laskin JJ. dissenting.
T.R. Berger, D.J. Rosenbloom and J.M. Baigent, for the appellants.
D. McK. Brown, Q.C., and A.W. Hobbs, Q.C., for the respondent.
The judgment of Martland, Judson and Ritchie JJ. was delivered by
JUDSON J.—The appellants sue, as representatives of the Nishga Indian Tribe, for a declaration “that the aboriginal title, otherwise known as the Indian title, of the Plaintiffs… has never been lawfully extinguished”. The action was dismissed at trial. The Court of Appeal rejected the appeal. The appellants appeal from both decisions.
The appellants are members of the Nishga Nation, which is made up of four bands: Gitlakdami, Canyon City, Greenville and Kincolith. They are officers of the Nishga Tribal Council and councillors of each of the four Indian bands. They are descendants of the Indians who have inhabited since time immemorial the territory in question, where they have hunted, fished and roamed. It was agreed for purposes of this litigation that this territory consisted of 1,000 square miles in and around the Nass River Valley, Observatory Inlet, Portland Inlet and the Portland Canal, all located in northwestern British Columbia. No other interest has intervened in this litigation to question the accuracy of this agreed statement of facts.
The Crown in right of the province has made certain grants in this territory, some in fee simple; in other cases rights of pre-emption, mineral and mining rights, petroleum permits, forestry rights and titles, and tree farm licences. However, the vast bulk of the area remains still unalienated.
No treaty or contract with the Crown or the Hudson’s Bay Company has ever been entered into with respect to the area by anyone on behalf of the Nishga Nation. Within the area there are a number of reserves but they comprise only a small part of the total land. The Nishga Nation did not agree to or accept the creation of these reserves. The Nishgas claim that their title arises out of aboriginal occupation; that recognition of such a title is a concept well embedded in English law; that it is not dependent on treaty, executive order or legislative enactment. In the alternative they say that if executive or legislative recognition ever was needed, it is to be found in the Royal Proclamation of 1763, in Imperial Statutes acknowledging that what is now British Columbia was “Indian Territory”, and in Royal instructions to the Governor of British Columbia. Finally, they say that their title has never been extinguished.
All these claims, at one point or another, were rejected in the judgments under appeal.
In the agreed statement of facts, the mode of life of the Indians is set out in rather bald terms. This description is amplified in the material filed at the hearing. I refer to The Indian History of British Columbia, chapter 8, by Wilson Duff, published in 1964:
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 foodgathering. 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.
The Nishga answer to government assertions of absolute ownership of the land within their boundaries was made as early as 1888 before the first Royal Commission to visit the Nass Valley. Their spokesman said:
David Mackay—What we don’t like about the Government is their saying this: “We will give you this much 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, and places where they got their berries; it has always been so. It is not only during the last four or five years that we 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; we are not like white people who live in towns and have their stores and other business, getting their living in that way, but we have always depended on the land for our food and clothes; we get our salmon, berries, and furs from the land. Any Canadian inquiry into the nature of the Indian title must begin with St. Catharines Milling and Lumber Co. v. The Queen[2]. This case went through the Ontario Courts, the Supreme Court of Canada and ended in the Privy Council. The Crown in right of the Province sought to restrain the Milling Company from cutting timber on certain lands in the District of Algoma. The company pleaded that it held a licence from the Dominion Government which authorized the cutting. In 1873, by a treaty known as the North-West Angle Treaty No. 3, the Dominion had extinguished the Indian title.
The decision throughout was that the extinction of the Indian title enured to the benefit of the Province and that it was not possible for the Dominion to preserve that title so as to oust the vested right of the Province to the land as part of the public domain of Ontario. It was held that the Crown had at all times a present proprietary estate, which title, after confederation, was in the Province, by virtue of s. 109 of the B.N.A. Act. The Indian title was a mere burden upon that title which, following the cession of the lands under the treaty, was extinguished.
The reasons for judgment delivered in the Canadian Courts in the St. Catharines case were strongly influenced by two early judgments delivered in the Supreme Court of the United States by Chief Justice Marshall—Johnson v. McIntosh[3], and Worcester v. State of Georgia[4]. In Johnson v. McIntosh the actual decision was that a title to lands, under grants to private individuals, made by Indian tribes or nations northwest of the river Ohio, in 1773 and 1775, could not be recognized in the Courts of the United States. In Worcester v. Georgia, the plaintiff, who was a missionary, was charged with residing among the Cherokees without a licence from the State of Georgia. His defence was that his residence was in conformity with treaties between the United States and the Cherokee nation and that the law under which he was charged was repugnant to the constitution, treaties and laws of the United States. The Supreme Court made a declaration to this effect. Both cases raised the question of aboriginal title to land. The following passages from 8 Wheaton, pp. 587-8, give a clear summary of the views of the Chief Justice:
The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.
The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy; and recognized the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.
The description of the nature of Indian title in the Canadian Courts in the St. Catharines case is repeated in the reasons delivered in the Privy Council. I quote from 14 App. Cas. at pp. 54‑5:
The territory in dispute has been in Indian occupation from the date of the proclamation until 1873. During that interval of time Indian affairs have been administered successively by the Crown, by the Provincial Governments, and (since the passing of the British North America Act, 1867), by the Government of the Dominion. The policy of these administrations has been all along the same in this respect, that the Indian inhabitants have been precluded from entering into any transaction with a subject for the sale or transfer of their interest in the land, and have only been permitted to surrender their rights to the Crown by a formal contract, duly ratified in a meeting of their chiefs or head men convened for the purpose. Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty. Their possession, such as it was, can only be ascribed to the general provisions made by the royal proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British Crown. It was suggested in the course of the argument for the Dominion, that inasmuch as the proclamation recites that the territories thereby reserved for Indians had never “been ceded to or purchased by” the Crown, the entire property of the land remained with them. That inference is, however, at variance with the terms of the instrument, which shew that the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign. The lands reserved are expressly stated to be “parts of Our dominions and territories;” and it is declared to be the will and pleasure of the sovereign that, “for the present”, they shall be reserved for the use of the Indians, as their hunting grounds, under his protection and dominion. There was a great deal of learned discussion at the Bar with respect to the precise quality of the Indian right, but their Lordships do not consider it necessary to express any opinion upon the point. It appears to them to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.
There can be no doubt that the Privy Council found that the Proclamation of 1763 was the origin of the Indian title—“Their possession, such as it was, can only be ascribed to the Royal Proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British Crown.”
I do not take these reasons to mean that the Proclamation was the exclusive source of Indian title. The territory under consideration in the St. Catharines appeal was clearly within the geographical limits set out in the Proclamation. It is part of the appellants’ case that the Proclamation does apply to the Nishga territory and that they are entitled to its protection. They also say that if it does not apply to the Nishga territory, their Indian title is still entitled to recognition by the Courts. These are two distinct questions.
I say at once that I am in complete agreement with judgments of the British Columbia Courts in this case that the Proclamation has no bearing upon the problem of Indian title in British Columbia. I base my opinion upon the very terms of the Proclamation and its definition of its geographical limits and upon the history of the discovery, settlement and establishment of what is now British Columbia.
Following the Treaty of Paris, General Murray was appointed the first Governor of Quebec. The Royal Proclamation, dated October 7, 1763, first recites that the Crown has created four distinct and separate governments, styled respectively Quebec, East Florida, West Florida and Grenada, specific boundaries having been assigned to each of them. The concluding recital reads as follows:
And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.
The Proclamation then goes on to deal with a prohibition of the granting of warrants of survey or patents for lands; the reservation of lands for the use of Indians; the prohibition of purchase or settlement or taking possession of reserved lands without special leave and licence; directions to all who have either wilfully or inadvertently settled on reserved lands to remove them- selves; and the prohibition of private purchase from Indians of lands reserved to them within those Colonies where settlement was permitted, all purchases being directed to be made on behalf of the Crown, in public assembly of the Indians, by the Governor or Commander in Chief of the Colony in which the lands lie. Rather than attempt to paraphrase, I set out the precise text of the opening paragraphs of the Proclamation dealing with these matters. The full Proclamation with all its recitals is to be found in the Revised Statutes of Canada 1970, Appendices, pp. 123-129.
We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions; as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.
And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained.
And, We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.
It is clear, as the British Columbia Courts have held, and whose reasons I adopt, that the Nishga bands represented by the appellants were not any of the several nations or tribes of Indians who lived under British protection and were outside the scope of the Proclamation.
The British Columbia Courts have dealt with the history of the discovery and settlement of their province. This history demonstrates that the Nass Valley, and, indeed, the whole of the province could not possibly be within the terms of the Proclamation.
As to the establishment of British sovereignty in British Columbia in 1818 by a Convention of Commerce between His Majesty and the United States of America, the British Crown and the United States settled the boundary to the height of land in the Rockies, referred to in the Convention as the “Stoney Mountains”. The boundary was the 49th parallel of latitude. The Convention provided for the joint occupancy of the lands to the west of that point for a term of ten years. This Convention was extended indefinitely by a further Convention in 1827.
The area in question in this action never did come under British sovereignty until the Treaty of Oregon in 1846. This treaty extended the boundary along the 49th parallel from the point of termination, as previously laid down, to the channel separating the Continent from Vancouver Island, and thus through the Gulf Islands to Fuca’s Straits. The Oregon Treaty was, in effect, a treaty of cession whereby American claims were ceded to Great Britain. There was no mention of Indian rights in any of these Conventions or the treaty.
As to establishment of the northern boundary of what became British Columbia, the Courts below relied on the evidence of Dr. Willard Ireland, Provincial Archivist, who had published a work on the evolution of the boundaries of the province. He begins with the Imperial ukase of the Czar, dated September 16, 1821, asserting exclusive rights of trade on the Pacific Coast as far south as the 51st parallel. There was opposition to this pretension immediately both from Great Britain and the United States. The United States proposed a tripartite treaty under the terms of which no settlements should be made by Russia south of 55 degrees, by the United States north of 51 degrees or by Great Britain north of 55 degrees or south of 51 degrees. The United States was prepared, if necessary, to accept the 49th parallel as the northern limit for its settlements. This proposal was rejected by the British Government, which preferred to negotiate separately with Russia and the United States. The discussions with Russia culminated in the Convention of February 28, 1825, which laid down a line of demarcation.
It was the opinion of Dr. Ireland that although the exact interpretation of these terms became a matter of serious dispute after Russian America was purchased by the United States, this Convention, broadly speaking, established the boundary as it exists today between Canada and Alaska. In other words, it determined the northern limit of British territory on the Pacific coast.
The Colony of Vancouver Island was established by the British Crown in 1849. James Douglas was appointed Governor in 1851. The Colony of British Columbia, being the mainland of what is now the Province, was established by the British Crown in 1858 and the same James Douglas was the first Governor of the Colony with full executive powers. Douglas remained Governor of both Colonies until 1864. On November 17, 1866, the two Colonies were united as one Colony under the British Crown and under the name of British Columbia. This Colony entered Confederation on July 20, 1871, and became the Province of British Columbia and part of the Dominion of Canada.
When the Colony of British Columbia was established in 1858, there can be no doubt that the Nishga territory became part of it. The fee was in the Crown in right of the Colony until July 20, 1871, when the Colony entered Confederation, and thereafter in the Crown in right of the Province of British Columbia, except only in respect of those lands transferred to the Dominion under the Terms of Union.
The political and social conditions prevailing in these two colonies are described in some detail in the reasons of Tysoe J.A.[5];
Prior to the establishment of the territories of Vancouver Island and the mainland of British Columbia as British colonies they had been governed by the Hudson’s Bay Company, of which company James Douglas was for some time the chief factor. It had been his responsibility to see to the orderly settlement of the lands and to control the native Indians, some tribes of which were of a warlike and aggressive nature. Douglas had to keep law and order. The responsibility continued to rest upon his shoulders after the establishment of the colonies and until executive councils were appointed, as in due course they were. Douglas had his difficulties with the Indians on Vancouver Island. In 1852 the white settlers with their children numbered only about one thousand and they were surrounded by an Indian population of nearly thirty thousand. On the mainland he had like troubles but in aggravated form. The territory was much larger and the discovery of gold exacerbated the situation. Vancouver Island had been the scene of an influx of foreigners and it was fear of this that led to the setting up of the Colony of Vancouver Island. On the mainland conditions in this regard were worse. Gold was first discovered on the Fraser River and this resulted in a great number of Ameri- cans from the California gold fields entering the territory. They were men who had “a hankering in their minds after annexation to the United States” and they did not have the same respect for the native Indians as did the British colonists. The first white child was born at Fort Langley on the mainland on November 1, 1857. The precious metal was the lure that brought the Kanakas from Hawaii in 1858, and it is said that in that year there were ten thousand men engaged in gold mining in the Colony of British Columbia. In the years 1859 and 1860 the mining population was being added to by small parties of men who had travelled overland from Eastern Canada. That was the commencement of a slow but steady stream of immigrants from beyond the Rocky Mountains. See Margaret Ormsby, “British Columbia” p. 145, and Cicely Lyons, “Salmon, our Heritage”, pp. 80, 81, 82, 85. In the late fifties and early sixties roads were being built into the mining areas. Frequent clashes with the Indians occurred. As immigration increased Douglas became concerned about the danger of Indian warfare spreading into the interior from Washington territory and alarmed about the great hazard of disrespect for Imperial rights and law and order. The search for gold spread further and further north and east. White settlers were spreading out and some were encroaching upon the village lands and other occupied lands of the Indians. The need for protection to the Indians and protection to the settlers against the Indians increased immeasurably. Such protection and an orderly system of settlement became of paramount consideration. Douglas had these matters very much in mind in the year 1858 and in succeeding years.
Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a “personal or usufructuary right”. What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was “dependent on the goodwill of the Sovereign”. It was the opinion of the British Columbia Courts that this right, if it ever existed, had been lawfully extinguished, that with two societies in competition for land—the white settlers demanding orderly settlement and the Indians demanding to be let alone—the proper authorities deliberately chose to set apart reserves for Indians in various parts of the territory and open up the rest for settlements. They held that this had been done when British Columbia entered Confederation in 1871 and that the Terms of Union recognized this fact.
As to Vancouver Island, we have before us a collection of dispatches between the Colonial Office and Governor Douglas in connection with the Indian problem that was confronting him. The first, dated July 31, 1858, contains an admonition that it should be an invariable condition in all bargains or treaties with the natives for the cession of lands possessed by them that subsistence should be supplied in some other shape. It is in the following terms.
July 31, 1858
I have to enjoin upon you to consider the best and most humane means of dealing with the Native Indians. The feelings of this country would be strongly opposed to the adoption of any arbitrary or oppressive measures towards them. At this distance, and with the imperfect means of knowledge which I possess, I am reluctant to offer, as yet, any suggestion as to the prevention of affrays between the Indians and the immigrants. This question is of so local a character that it must be solved by your knowledge and experience, and I commit it to you, in the full persuasion that you will pay every regard to the interests of the Natives which an enlightened humanity can suggest. Let me not omit to observe, that it should be an invariable condition, in all bargains or treaties with the natives for the cession of lands possessed by them, that subsistence should be supplied to them in some other shape, and above all, that it is the earnest desire of Her Majesty’s Government that your early attention should be given to the best means of diffusing the blessings of the Christian Religion and of civilization among the natives. These dispatches are detailed and informative on both sides. They set out the difficulties and problems as they arose and suggestions for their solution. I quote from the last dispatch of the Governor, which conveniently summarizes his efforts:
Victoria, 25th March, 1861.
My Lord Duke,—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, with much force and truth, the evils that may arise from the neglect of that very necessary precaution.
2. As the native Indian population of Vancouver Island have distinct ideas of property in land, and mutually recognize their several exclusive possessory rights in certain districts, they would not fail to regard the occupation of such portions of the Colony by white settlers, unless with the full consent of the proprietary tribes, as national wrongs; and the sense of injury might produce a feeling of irritation against the settlers, and perhaps disaffection to the Government that would endanger the peace of the country.
3. Knowing their feelings on that subject, I made it a practice up to the year 1859, to purchase the native rights in the land, in every case prior to the settlement of any district; but since that time in consequence of the termination of the Hudson’s Bay Company’s Charter, and the want of funds, it has not been in my power to continue it. Your Grace must, indeed, be well aware that I have, since then, had the utmost difficulty in raising money enough to defray the most indispensable wants of Government.
He then went on to point out the need for further purchases, totalling in all £3,000, and asked for a loan of this amount from the Imperial Government. The reply was that the problem was essentially local in character and the money would have to be raised in the Colony. The full reply is as follows:
Downing Street, 19th October, 1861
Sir.—I have had under my consideration your despatch No. 24, of the 25th of March last, transmitting an Address from the House of Assembly of Vancouver Island, in which they pray for the assistance of Her Majesty’s Government in extinguishing the Indian title to the public lands in the Colony, and set forth the evils that may result from a neglect of this precaution.
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 burthened to supply the funds or British credit pledged for the purpose. I would earnestly recommend therefore to the House of Assembly, that they should enable you to procure the requisite means, but if they should not think proper to do so, Her Majesty’s Government cannot undertake to supply the money requisite for an object which, whilst it is essential to the interests of the people of Vancouver Island, is at the same time purely Colonial in its character, and trifling in the charge that it would entail.
The reasons for judgment next deal with a series of proclamations by James Douglas as Governor of the Colony of British Columbia. The first is dated December 2, 1858, and it is stated to be a proclamation having the force of law to enable the Governor of British Columbia to have Crown lands sold within the said Colony. It authorized the Governor to grant any land belonging to the Crown in the Colony.
The second proclamation is dated February 14, 1859. It declared that all lands in British Columbia and all mines and minerals thereunder belonged to the Crown in fee. It provided for the sale of these lands after