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The Formation of the Vancouver Island (Or 'Douglas') Treaties of 1850-1854 In Sharing The Land: The Formation of the Vancouver Island (or ‘Douglas’) Treaties of 1850-1854 in Historical, Legal and Comparative Context by Neil Vallance BA (Hons.) University of Victoria, 1969 LLB, University of British Columbia, 1974 MA, University of Victoria, 2003 A Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in the Faculty of Law ¬ Neil Vallance, 2015 University of Victoria All rights reserved. This dissertation may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author. ii Supervisory Committee Sharing The Land: The Formation of the Vancouver Island (or ‘Douglas’) Treaties of 1850-1854 in Historical, Legal and Comparative Context by Neil Vallance BA (Hons.) University of Victoria, 1969 LLB, University of British Columbia, 1974 MA, University of Victoria, 2003 Supervisory Committee Hamar Foster, (Faculty of Law) Co-Supervisor John Lutz, (Department of History) Co-Supervisor John McLaren, (Faculty of Law) Departmental Member David Williams, (Faculty of Law, University of Auckland) Additional Member iii Abstract Supervisory Committee Hamar Foster, (Faculty of Law) Co-Supervisor John Lutz, (Department of History) Co-Supervisor John McLaren, (Faculty of Law) Departmental Member David Williams, (Faculty of Law, University of Auckland) Additional Member Chapter I introduces the Vancouver Island or ‘Douglas’ Treaties of 1850-54, entered into between several Vancouver Island First Nations and Hudson’s Bay Company Chief Factor, James Douglas, acting as agent of the Crown. The written versions purported to extinguish the aboriginal title of the First Nations to their land. Recent research has indicated that these documents do not accurately reflect what was agreed between the parties at the treaty meetings. The goal of the dissertation is to ascertain the likely terms of the treaties. This task also posed my major research challenge, as very little contemporaneous documentation exists of the formation of the treaties. There are a number of first- and second-hand accounts reduced to writing long after the events described, but they have received little attention from scholars until now. Chapter II is devoted to a critical analysis and comparison of the extant First Nation and colonial accounts, from which I conclude that the treaties were likely agreements by the First Nations to share not cede their land. Chapter III makes a comparison with first person accounts of the Washington or ‘Stevens’ Treaties of 1854-55, entered into between iv Native American tribes and the United States government. I conclude that these accounts bolster the likelihood that the Vancouver Island agreements were sharing treaties. Chapter IV follows up on a fascinating connection between the written versions of the Vancouver Island Treaties and an agreement concerning land between the Ngai Tahu Moari of New Zealand’s south island and Henry Kemp, acting as agent of the Crown. The comparison provides a number of useful contrasts and parallels with the Vancouver Island Treaties. Chapter V describes the silencing of the Vancouver Island Treaties by the policies of successive governments, the inattention of scholars and the decisions of Canadian courts. Finally, Chapter VI reviews existing and potential categories of historical treaties between First Nations and the Crown. By analogy with treaty categories in international law and the work of political and legal theorists, I make the case for the Vancouver Island Treaties as examples of modus vivendi (interim or framework agreements). v Table of Contents Supervisory Committee ...................................................................................................... ii Abstract .............................................................................................................................. iii Table of Contents ................................................................................................................ v Acknowledgments............................................................................................................ viii Dedication .......................................................................................................................... ix Chapter 1: Introduction ....................................................................................................... 1 A. Background ................................................................................................................ 1 B. Organization ............................................................................................................... 7 1. Choices .................................................................................................................... 7 2. Methods................................................................................................................. 13 3. Theories................................................................................................................. 18 4. Premises and Research Questions ......................................................................... 21 C. Literature Review: Part 1 ......................................................................................... 23 1. Northern Forest Treaties (Numbered Treaties 8 through 11) ............................... 24 2. Prairie Treaties (Numbered Treaties 1 through 7) ................................................ 27 3. Great Lakes Treaties ............................................................................................. 39 4. Eastern Seaboard Treaties ..................................................................................... 45 5. Canadian Treaties in General ................................................................................ 49 6. Supplemental Research Questions ........................................................................ 55 Chapter II: Formation of the Treaties ............................................................................... 57 A. Introduction ........................................................................................................... 57 B. Prior to the Treaties .................................................................................................. 57 1. Overview ............................................................................................................... 57 2. The HBC and James Douglas in the Oregon Territory ......................................... 61 3. The Threat of Violence ......................................................................................... 66 4. Prelude to the Treaties .......................................................................................... 68 C. The Treaty Meetings ................................................................................................ 75 1. The Fort Victoria Treaties (1850) ......................................................................... 77 a. The Latass Account ........................................................................................... 77 b. The Finlayson Account ..................................................................................... 84 c. The Douglas Account ........................................................................................ 85 d. The McKay Account ......................................................................................... 89 e. Linguistic and Cultural Translation .................................................................. 92 f. The Douglas Forms ........................................................................................... 95 2. The Fort Rupert Treaties (1851) ......................................................................... 105 vi 3. The Saanich Treaties (1852) ............................................................................... 106 a. The Latass Account ......................................................................................... 107 b. The Douglas Account ..................................................................................... 113 c. Oral History and Oral Traditions .................................................................... 114 4. The Nanaimo Treaty (1854) ................................................................................ 119 a. The Whoakum Account .................................................................................. 119 b. The Yaklam Account ...................................................................................... 123 c. The Quen-es-then or Wyse Account ............................................................... 124 d. The Douglas Account ..................................................................................... 127 D. The End of Treaty Making on Vancouver Island (1854-1862) ............................. 129 1. Douglas’ Intentions ............................................................................................. 129 2. The View from the Colonial Office .................................................................... 134 3. The Voice of the Settlers..................................................................................... 135 4. First Nation Perspectives .................................................................................... 136 Chapter III: The Washington Treaties of 1854-55 .......................................................... 140 A. Introduction ...........................................................................................................
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