The Federal Court of Appeal鈥檚 ruling against the federal government in a land claim in northern British Columbia is likely to have an impact that reaches far beyond the four hectares in question along the Skeena River.
In 1891, Indian reserve commissioner Peter O鈥橰eilly set aside more than 1,000 hectares of land for the Kitselas First Nation northeast of present-day Terrace, but then excluded a four-hectare parcel from the reserve because a Hudson鈥檚 Bay Co. store was located on the land.
The Specific Claims Tribunal, which was set up by the federal government in 2008 as a way to handle land-claim cases outside of court, concluded that the land was the site of an ancient Kitselas settlement and should never have been excluded from the reserve. The federal government appealed that decision, but the Court of Appeal ruling this month upheld the tribunal鈥檚 decision. That means the Kitselas can seek compensation for the land, now a provincial park, unless Ottawa appeals the decision to the Supreme Court.
O鈥橰eilly鈥檚 diaries indicate he tried to be fair to First Nations in setting reserve boundaries, and listened carefully to chiefs before making his decisions. He held various positions with the colonial government after his arrival at Victoria in 1858, and he took his duties seriously.
Although he was well connected in Victoria鈥檚 high society, he was not content to relax in the comfort of his Point Ellice residence. He travelled extensively throughout sa国际传媒, often enduring great hardship. His travels and his knowledge of the land likely helped him be more sensitive to the needs of the aboriginal peoples, but he was working within a flawed system.
British colonial policy recognized that aboriginal groups were sovereign nations, and their title to the land was recognized by English and international law. Treaties were required to legally transfer title of aboriginal lands to the Crown before colonial settlement could proceed.
But in the territory that is now sa国际传媒, that was not the case. When James Douglas was colonial governor of Vancouver Island, he bought some land from natives between 1850 and 1854, but few treaties were signed after that. After Douglas鈥檚 retirement, the colonial government took the official position that aboriginal peoples didn鈥檛 have rights to the land they occupied.
Ignoring international law, the government took away the right of aboriginal people to acquire Crown land as settlers could, and reduced the size of reserves already allotted, all without compensation.
Thus, aboriginal rights to vast tracts of land in sa国际传媒 were never extinguished or transferred. One of the effects of that policy was the forming of the sa国际传媒 Treaty Process, begun in the 1990s to resolve outstanding land issues with First Nations, including unextinguished aboriginal rights, but it has been complicated by various court rulings and criticism from all sides. A substantial number of sa国际传媒 First Nations refused to be part of the process.
Perhaps O鈥橰eilly鈥檚 mistake in 1891 was in giving undeserved deference to the Hudson鈥檚 Bay Co. store that stood along the Skeena River. Oral traditions (which the tribunal accepted as evidence) said the site had been occupied by the Kitselas people for many generations.
Archeological evidence backs up that tradition, indicating that human habitation on the site goes back 5,000 to 10,000 years.
Yet O鈥橰eilly, though likely well-intended, lived in an ethnocentric society that gave no credence to aboriginal history and culture. The misguided policies that grew out of that bigoted attitude have resulted in a tangle that will take many, many years to sort out.
We are still correcting the mistakes of an arrogant colonial government. And so we should.
