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ÁYES: PENDER S,D SPECIAL EDITION Citizen Artist News: Clouded Title examining Indigenous and non-Indigenous perspectives spring edition: 2018 citizenartist.org.uk Reconsidering place: thinking through notions of ‘ownership’ in the Douglas Treaty

This newspaper is an invitation to enter into dent that colonialism persists and sustains fic- As a proviso, this publication does not rep- this material. I would also like to thank Emily an experiment – a thought experiment – to tions of entitlement and possession. Who we resent the W̱ SÁNEĆ Nation nor residents of Artinian of Street/Road Artists Space for her explore the different orientations of settler and are as ‘Canadians’ and how we behave as a . It speaks for neither commu- enthusiasm, stimulating conversations and indigenous conceptions of inhabiting ‘land’. It ‘community’ is deeply entangled with western nity. Instead, it is an assemblage of published commitment and with whom this project forms is focused on a local example and takes as its (British colonial) ideas of ourselves as ‘owners’. material from WSÁNEĆ and other indigenous part of a larger collaborative art and research starting point an examination of the notion of Happily though, there is growing awareness on and non-indigenous writers, accompanied by project called ‘Clouded Title’. I also thank ‘ownership’ in the context of the Douglas Treaty the island that Pender is within the traditional sections of commentary intended to draw out Robb Zuk for his kind and generous help in and contrasts this with a W̱ SÁNEĆ (Saanich) territory of W̱ SÁNEĆ people and this has led to some of the intricacies of the language of the the preparation of this document. I follow the Nation creation story, as a way of illuminating grass roots activities such as a Reading Circle, treaty, to illustrate (and examine) differing no- example of authors such the late Dave Elliot some of the complexities of differing concep- the erection of a monument on South Pender tions and practices of ‘ownership’. Readers Sr. (W̱ JOL̵EL̵P Nation), Robert YELЌÁTŦE tions of place that in turn, frame relations be- and some celebratory social events, the latter will find that there is no singular explanationClifford (SȾÁ,UTW̱ Nation) and Raymond tween communities. two in collaboration with primarily members and barring some suggestions, no solutions to Frogner in the use of SENĆOŦEN spellings Since 2013 (when I returned to ), of the SȾÁ,UT (Tsawout) Nation. These areits problems are posed. To expect answers or (pronounced Sun-cho-thun) i.e., the W̱ SÁNEĆ I have witnessed non-Indigenous Canadians heartening examples and it is hoped that this directives is to miss the point of the publica- language. The material presented relies on endeavouring to understand the complexities publication will help to further enrich discus- tion. The aim is to evaluate the implications of quotes from assembled literature and respon- of their own reality as inhabitants of indigenous sions of the implications of one’s occupancy of living on lands that are clouded in title. sibility for any errors is entirely my own. lands. In light of the publication of the Final Re- the island, in the context of the treaty, by pro- I am immensely grateful to Earl Claxton port: Truth and Reconciliation Commission of viding a point of entry to the complications of Jr (SȾÁ,UTW̱ Nation) for his gracious conver- Fawn Daphne Plessner Canada, it has also become increasingly evi- this intellectual and material terrain. sation, patience and guidance in discussing S,DÁYES/Pender Island

Introduction to what’s at issue: It is widely assumed that Pender Island was its enactment. By its very nature, a treaty -im ‘purchased’ from under the parts responsibilities and duties to the other Douglas Treaty. It is also currently under- party -- and not just at a governmental level stood that “the Tsawout, Tsartlip, Pauquachin -- but there is no transparent understanding and Tseycum First Nations […] have land and of one’s obligations in this relationship with harvesting rights to Pender under the 1852 the W̱ SÁNEĆ people. Nor is there any public Douglas Treaty” (Pender Islands Museum, knowledge of the experiences and perspec- n.d.). Equally, it is known that “there is an- Intives of the W̱ SÁNEĆ Nation in the history dian reserve at Hay Point on South Pender of the treaty’s making. The pervasive silence Island, which is home to members of the Tsa- that surrounds this topic sustains public igno- wout and Tseycum First Nations. Carbon dat - rance of the important details that bear on our ing of artifacts in shell middens near Belden economic, social, political, environmental and Cove identify an Indian village site that has ethical responsibilities in this relationship. been more or less continuously inhabited for The following discussion therefore is an five millennia. The Poets Cove Resort was introduction to how ‘land’ and ‘ownership’ are built on an ancient First Nations village site” differently regarded as evidenced in published (Wikipedia, n.d.). However, cutting across commentaries on the Douglas Treaty and a these claims is “the provincial government’s W̱ SÁNEĆ creation story. What follows is not 2007 settlement with the Tsawwassen First a complete exposition. Instead, this newspa- Nation [that] includes hunting and fishingper aims to simply draw out some dimensions rights on and around Pender Island—an ar- of the treaty that frame and indeed, under- rangement to which the Sencot’en Alliance pin understandings of belonging and claims objected, saying those rights are theirs under to ‘ownership’ by contrasting it with a discus- the 1852 Douglas Treaty” (Wikipedia, n.d.). sion of relationality in W̱ SÁNEĆ cosmology Also, it has been said that “The Saanich peo- and culture. As islanders, we are bound to- ple have never surrendered title to the Gulf gether in a relationship with the SȾÁ,UTW̱ Islands and we also feel that our territory ex- (Tsawout), W̱ JOL̵EL̵P (Tsartlip), BOḰEĆEN pands across the U.S.A. border” (Claxton, (Pauquachin) and W̱ SIḴEM (Tseycum) First 2007). That is, most of the W̱ SÁNEĆ tradi- Nations bands in virtue of our presence on tional territory has never been ceded. But their territory and under treaty. That is to say, what exactly does all of this mean? What is as residents we live here with members of the Douglas Treaty and how is it to be inter- the W̱ SÁNEĆ Nation even though our colo- preted given that it is a document that em- nial history has created the conditions of an bodies scarred histories, disputed claims and apartheid. It is my hope therefore that the fol- differing world views? lowing exposition provides a starting point for To date, there is little public awareness of the recognition of the deeper, more nuanced, what the Douglas Treaty is and there is no W̱ SÁNEĆ perspectives on claims to place as comprehensive or thoughtful public discus- illustrated in the literature and the importance editor: F.D.Plessner sion in the Media, let alone evidence of of a interrogating the persistent British colonial citizenartist.org.uk lived appreciation of one’s individual role in assumptions about inhabiting these lands. [email protected] 2

The Douglas Treaty(1)

Know all men,(2) that we the chiefs and people of the Saanich Tribe, who have signed our names (3) and made our marks to this deed on the eleventh day of February, one thousand eight hundred and fifty-two, do consent to surrender, entirely and for ever (4), to (5), the agent of the Hudson’s Bay Company in , that is to say, for the Governor, Deputy Governor, and Committee of the same (6), the whole of the lands situated and lying as follows, viz: - commencing at Cowichan Head and following the coast of the Canal de Haro North-west nearly to Saanich Point, or Qua-na-sung; from thence following the course of the Saanich Arm to the point where it terminates; and form thence by a straight line across country to said Cowichan Head, the point of commence- ment, so as to include all the country and lands, with the exceptions hereafter named, within those boundaries (7).

The conditions of our understanding of this sale (8) is this, that our village sites and enclosed fields (9) are to be kept for our own use, for the use of our children (10), and for those who may follow after us and the land shall be properly sur- veyed hereafter (11). It is understood, however, that the land itself, with these small exceptions, becomes the entire property of the white people (12) for ever; it is also understood that we are at liberty to hunt over the unoccupied lands (13), and to carry on our fisheries as formerly (14).

We have received, as payment [amount not stated] (15)

(Signed) Hotutstun his X mark and 117 others. (16)

Witness to signatures, (signed) (17) Joseph William McKay, Clerk H.B. Co’s service Richd. Golledge, Clerk

Source: Government of Canada, Indigenous and Northern Affairs (n.d.) Treaty Texts: . Papers Connect with the Indian Land Question, 1850-1875, Victoria, R. Wolfenden, 1875.

The image of the mountie and Chief Sitting Eagle (of Stoney Nakoda Nation, Alberta) shaking hands is from a popular tourist postcard published in 1955. The staged handshake suggests good relations and clemency between the state and indigenous peoples by focusing on the popular (Modern European) practice of shaking hands following promises, settlements or contractual arrangements, in addition to being a formal symbol of trust. This propagandistic image is a salutary reminder of how pictures of a benificent Canada have circulated within the country and abroad during moments of extensive state violence toward indigneous peoples. The description on the back of the postcard is strikingly ironic and exposes the publisher’s efforts to historicize relations between settler and First Nations in its glossed celebration of Canada.The legend on the back of the original postcard reads: “Mountie and Indian Chief -- Here indeed are symbols of Canada’s glorious past. A Mountie, resplendant in his famed ‘scarlet’, greets Chief Sitting Eagle, one of Canada’s most colourful Indians.” Published by Canada In Colour Limited, Banff, Alberta. Format Design and Text, copyright 1953. Smith Lithograph Limited, Vancouver - 1955. 3

W̱ SÁNEĆ covenant with XÁLS (1)

A long time ago when the Creator, XÁLS, walked the Earth, there were no islands in the W̱ SÁNEĆ territory. The islands that are there today were human beings (our ancestors). At this time XÁLS walked among the W̱ SÁNEĆ People, showing them the proper way to live. In doing this he took a bunch of the W̱ SÁNEĆ People and threw them back into the ocean. Each of the persons thrown into the ocean became the islands there today. Each of those islands were given a particular name that reflects the manner in which they landed, their characteristics or appearance, or the significance they have to the ̱ SÁNEĆW People. “James Island” was named LEL,TOS, meaning “Splashed in the Face.” LEL,TOS reflects the way the island landed in the ocean. The southeast face of LEL,TOS is worn by the wind and the tide.

After throwing the W̱ SÁNEĆ People into the ocean, XÁLS turned to speak to the islands and said: “Look after your relatives, the W̱ SÁNEĆ People”. XÁLS then turned to the W̱ SÁNEĆ People and said: “You will also look after your ‘Relatives of the Deep’”. This is what XÁLS asked us in return for the care of our ‘Relatives of the Deep’ [who] provide for us. (2)

Source: Robert YELKÁTTE Clifford (2016) ‘W̱ SÁNEĆ Legal Theory and the Fuel Spill at SELEK̵TEȽ (Goldstream Riv- er)’, McGill Law Journal, 61:4. 4 Notes: The Douglas Treaty/North Saanich 1) There are 14 treaties that apply to indig- held an […] inchoate form of “qualified Domin- that the viewpoint of the W̱ SÁNEĆ was not was so explained to us by Joseph McKay, the enous and non-indigenous communities on ium” (p.62). However, the claim to ownership captured in the text of the treaty. interpreter for Governor Douglas. The governor Vancouver Island that were formulated byof underlying title, within the exploits of the The key point here isn’ what is inscribed [Douglas] himself solemnly assured us that all James Douglas between 1850 and 1854. TheCrown, is declared without “direct reference in the treaty’s text – i.e., if one reads it literally. asked to be ratified would be entirely to the -sat North Saanich Treaty is specific to one smallto the original possessors of the land. The What is important is noticing what has been left isfaction of the Indians. He also stated that the part of the (northern) territory of the̱ SÁNEĆ W notification at once declares the document’sout, namely the account of the W̱ SÁNEĆ and only object of the writing [i.e., the signatures] was (Saanich) Nation, home to four bands: theaddressee [the W̱ SÁNEĆ] and asserts Eng- their reasons for entering into discussions with to assure the Hudson’s Bay Company peaceful SȾÁ,UTW̱ (Tsawout), ̱ WJOL̵EL̵P (Tsartlip), lish sovereignty [over the ‘ownership’ of lands. Douglas. This is where we see the magnitude and continued use of land tracts suitable for cul- BOḰEĆEN (Pauquachin) and ̱ WSIḴEM (Tsey- And at the same time it codifies] settlement of colonial practices and indeed, its violence tivation. That was accompanied by [a] gift of a cum) First Nations (Clifford, 2016). It pertainsfor colonial land acquisition” (p.63) and erases (remembering too that during this period of -confew blankets. We all understood that similar gifts to residents of Pender Island who live within recognition of W̱ SÁNEĆ law within the inter- tact, Victoria was a militarized Fort and therewould be made each year, what is now called W̱ SÁNEĆ traditional territory. The History national forum. The problem of the Crown’s had been instances of military bombardments rent” (Sources of the Douglas Treaty, #6). Also Department at the University of Victoria has claim to ownership is discussed further below of First Nations villages on the Coast) (Elliot,included in the payment at the time were a row compiled an online database with informa- (see note 4 and 13). 1990, pp.63-65). As J.R. Miller points out, “Theof rifles that encircled the pile of blankets (Clax- tion about the treaties called The Governor’s fundamental problem in interpreting the treaties ton, 2017). Letters. The following is an excerpt from one 3) ‘…signed our names’: Unsurprisingly, there is that the two main parties, government and The language of ‘surrender’ is a one-sided, of their documents that offers some context: are conflicting accounts of the Treaty’s origins, First Nations, have different understandings of asymmetrical claim that exposes the interests “In the 1840s, Vancouver Island was home intentions and formulation. Contrary to popu- what treaties did and what they represent. The of the Hudson Bay Company and the emergent to thousands of First Nations peoples be- lar belief, the Treaty is not a straightforward national government has tended to take the po- corporate colonial state. The Treaty does not longing to Nuuchah’nulth, andcontract of sale of land to the then Hudson sition that these treaties are merely contracts evidence the negotiations or discussions, nor Kwakwaka’wakw speaking groups (an 1856Bay Company and the British Crown. Follow- by which […] First Nations surrendered title to does it reflect an understanding of the̱ SÁNEĆ W census counted 33,873 Indigenous people ing the murder by James Douglas’s men of a lands in return for compensation such as an- as equal parties to the agreement. This is rel- on Vancouver Island). In 1843, the Hudson’syoung messenger boy from Tsawout Nation nuities, reserves, assistance with farming, and evant to present day colonial practices. In an ef- Bay fur trading company established a - trad(Claxton, 2017), in addition to the felling andother, more specific benefits” (2007, p.28). fort to smooth over the evident occupation and ing post at Fort Victoria in the territory of theftthe of trees in Cadboro Bay in terri- Miller continues, “[m]oreover, Canada -un exploitation of remaining unceded territories, Lekwungen Coast Salish-speaking people. Bytory (Elliott, 1990), the Treaty was understoodtil very recently has insisted that the written the government of B.C. has solicited First- Na 1846, Britain and the agreed byto the W̱ SÁNEĆ as a Peace Treaty (Claxton, version of the treaties, which its treaty com- tions to enter into treaty negotiations since the divide the territories west of the Rocky Moun- 2017; Elliott,1990; Sources of the Douglas missioners and bureaucrats had drawn up, of 1990s. Arthur Manuel describes the processes tains, so that the United States controlled theTreaties, n.d. see #10, #13, #14, #16). Ascourse, were the sole and complete account of of the Treaty Commission as area south of the 49th parallel and Britain- conHamar Foster states, “The oral tradition of the what had been agreed. Consequently, the gov- perpetuating the skewed assumption of enti- trolled the area north of this border, including who signed two of Douglas’s ernment has usually refused to interpret treaty tlement that favours the interests of the settler Vancouver Island. To maintain its hold on the [blank] sheets of paper is that, whatever may commitments as anything other than the literal state. As he says, “The terms of the negotiations territory and have continued access to the be said or written at the time they believed that words of its version of the treaty. So, for exam- […are not] under Section 35 of the Constitution, Pacific Ocean for trade routes, the British- Cothe document was a peace treaty. There had ple, if a treaty said that members of the First under which Aboriginal rights would be recog- lonial Office created a colony on Vancouverbeen trouble over logging and over the shoot- Nation that signed it in the 1870s are each enti- nized and affirmed at the beginning of the nego- Island in 1849. Colonial powers like Britaining of a young Indian lad, and when Douglas tled every year to five dollars, then that is what tiations. Instead, [the treaty process is] carried believed that if they could settle enough of produced piles of blankets and asked them to they get in the early twenty-first century. […] out under the revised Comprehensive Claims their own citizens permanently in Indigenous put ‘X’s’ on a piece of paper, they thought they In short, the federal government has generally policy, which the Mulroney government brought territories, they could claim these territories were being asked, under sign of the Christian interpreted and applied treaties as contracts, out in 1986. It stated that negotiation would take as their own. Britain allowed the Hudson’scross, to accept compensation for not making reading them in strict literal fashion. For the First place under Section 91(24) of the BNA Act [Brit- Bay Company to manage the Colony of Van- war” (Sources of the Douglas Treaties, n.d. Nations, this reading is a perversion of what the ish North America Act], where the federal gov- couver Island and agreed to let the company see #10 and #14). That is, as compensation agreements were about. […They] take the po- ernment had sole jurisdiction over “Indians, and have exclusive rights for the next ten years. for harm done and to put an end to further in- sition that the treaties were not just contracts, Lands reserved for the Indians.” […] The Abo- In exchange, the company agreed to colo- fractions by Douglas and his men. To clarify, and disagree that the full meaning of the treaties riginal Lands under negotiation [are] defined nize the island with British settlers. Beforeas indicated above, the W̱ SÁNEĆ were asked is found in the government’s published version. as lands “held by, or on behalf of, an Aboriginal the Hudson’s Bay Company could sell theto sign a blank piece of paper and the text was [… Instead,] First Nations approached treaty group under conditions where they would con- land to settlers, it first had to ‘purchase’ (myadded after members of the W̱ SÁNEĆ had making in search of connection with the incom- stitute ‘lands reserved for the Indians’ under quotes) the land from its original owners, thebeen required to mark an X (Claxton, 2017;ing people and the crown. They were looking Section 91(24) of theConstitution Act, 1867.” Indigenous people. […] Between 1850 -1854,Sources of the Douglas Treaties, n.d. see #9).for assurances of friendship and future sup- (Manuel, 2015, p.90). In other words, the implicit James Douglas signed treaties with fourteen The signing of the treaty was further com- port that would guarantee their survival [and no rights and title of First Nations are not properly communities on Vancouver Island” (The Gov- plicated by the fact that “in 1850 few Hud- doubt protection from the tacit and real threat of recognized at any point in the process and the ernor’s Letters, n.d.). On the Tsawout Nation son’s Bay Company employees understood violence of HBC’s militarized forts]. For them, ‘negotiation’ then is not dissimilar in principle to webpage, further clarification about ̱ SÁNEĆW the Salish language and few local indigenous the meaning of the treaties is found in the re- the actions of the early colonial government un- territory is described as follows: “The Saan- people understood or read English” (Gover- lationship established rather than any specific der Douglas. As Taiaiake Alfred says, questions ich peoples’ territory includes the Saanich nor’s Letters, n.d., p.1; Elliott,1990; Sources clause, and the overall significance of treaties of “indigenous land ownership or questions of Peninsula, south to Mount Douglas, across ofto the Douglas Treaties, n.d. see #10 - #14).to them is that they were promised help to live the state’s claims to ownership or jurisdictional Mount Finlayson and Goldstream. In addition,It is also controversial as to whether or not well” (my italics, Miller, 2007, p.28). However, legitimacy” are omitted from the very start (Al- the Southern , reaching to Point the names and X’s were written by members despite the elisions and biases within the text of fred, 2005, p.111) (see also note 13). Roberts, and constituted of the W̱ SÁNEĆ. Earl Claxton describes the the Douglas Treaty, it has not been dismissed what is the Saanich Peoples traditional terri- handwriting of both the text of the treaty and or rejected outright by the W̱ SÁNEĆ or, indeed, 5) James Douglas: James Douglas was born tory. The Tsawout and Saanich people’s tra- the X marks as belonging to McKay (Clax- the Canadian Courts. It has been enacted in in the West Indies to a Scotsman called John ditional territory is the lands and seas that we ton, 2017). The late Dave Elliott Sr. (an Elder the courts with regard to W̱ SÁNEĆ rights to Douglas and a Creole woman, whose name traditionally used throughout every season” of Tsartlip Nation) is documented as saying hunting and fishing (see note 14, Claxtonis v. not certain, but was possibly “Miss Ritchie” (Tsawout Nation, n.d., n.p.). “Look at the X’s yourself and you’ll see they’re Saanichton Marina Ltd. and the Queen,1989; (Ormsby,1972). The couple had three children, all alike, probably written by the same hand. Regina v. Bartleman, 1984; Regina v. Morris,James being the second born. Douglas’s father 2) ‘Know all men’: This clause frames theThey actually didn’t know those were their 2006; Jack and Charlie v. the Queen, 1985).and three of his uncles (one of whom was Lieu - Crown’s (alleged) ‘legal’ claim of appropriated names and many of those names are not The Treaty is a document that embodies the tenant-General Sir Neill Douglas, Commander- lands in the context of the Imperial laws of the even accurate. They are not known to Saan- rights and title of the W̱ SÁNEĆ to their tradi- in-Chief, Scotland) were merchants in Glasgow Doctrine of Discovery. To clarify: the author of ich People. Our people were hardly able to tional territory. Indeed, there is much work yet and held interests in sugar plantations in British the act and the author of the document is the talk English at that time and who could under- to be done to honour and abide by the spirit of Guiana. “Placed at an early age in a preparato- British Crown. The writer is James Douglas. stand our language?” (Sources of the Doug- its claims such as, and not limited to, furnish- ry school in Scotland, James Douglas learned The addressee of the act is James Douglas las Treaties, n.d. see #16). The confusion over ing compensations due to the W̱ SÁNEĆ for the “to fight [his] own way with all sorts of boys, in his capacity as “agent of the H.B.C. and names suggest that there were also people use of their lands (see note 9 below for further and to get on by dint of whip and spur.” He re- the addressee of the document is ‘…all men’ present who might have been extended kin discussion of this last point). ceived a good education at Lanark, and prob- (Frogner, 2010, p.61). The following cites as- of those assembled or some other network ably further training from a French Huguenot pects of Raymond Frogner’s discussion of the of people who may have been invited to wit- 4) The claim that the W̱ SÁNEĆ ‘consented to tutor at Chester, England” (Ormsby,1972, n.p.). North Saanich Treaty: The “clause begins the ness events, but who have yet to be identified surrender, entirely and forever…the whole of At 16 years of age he apprenticed with the treaty with an assertion of sovereignty directed (Claxton, 2017). Raymond Frogner notes that the lands’ is, on a positive note, an acknowl- North West Company, a competitor of the Hud- at both domestic and international audiences. “some W̱ SÁNEĆ spoke Chinook, the local na - edgement of the implicit rights and title of the son’s Bay Company. When the two companies These abstract audiences are meant to bear tive trading language on the west coast, as did W̱ SÁNEĆ – i.e., to ask for consent is to first- reccombined, Douglas entered the Hudson’s Bay witness to Crown sovereignty and must there- J.W.MacKay, HBC secretary to Douglas and ognize that there is a prior right and title. How- Company as a second-class clerk. He excelled fore acknowledge the European concept of an signing witness on the document. Douglas ever, the claim that the W̱ SÁNEĆ ‘surrendered’ at his work and was quickly promoted to take imperial legal forum. [As applied here, u]sed also knew some Chinook. However, none oftheir lands is implausible for many reasons in- charge of a succession of Forts (Fort Vermilion, to enter this forum, and incorporate native sig- the HBC representatives knew SENĆOŦENcluding the following: in addition to their believ- Fort St. James, Fort Connolly, natories, is an invocation of natural law. […] [the language of the W̱ SÁNEĆ]. And Chinook, ing that they were signing a peace treaty (see et al.) to bolster trading and supply routes to ‘All men’ brings Aboriginal peoples into the a jargon developed for itinerant trade, does note 2), the agreement then pivoted on an un- HBC’s outposts throughout indigenous territo- jurisdiction of international law where unique not possess the vocabulary for land sale” (my derstanding that Douglas and the settlers could ries in the West. In 1839, Douglas was promot- cultural orders [i.e., the laws of the W̱ SÁNEĆ, italics, Frogner, 2010, p65). The subsequent use part of the W̱ SÁNEĆ territory (grasslands ed to Chief Factor. He actively negotiated trade are made to be] susceptible to common [law] addition of the main body of text and proper on the ) to grow some crops boundaries with competitors such as the Rus- rules of land title and governance. But incor- names evidences the wide gap in (mis)com- and that in return, the W̱ SÁNEĆ would be paid sians in Sitka territory and with the Americans. porating Aboriginal peoples into the legal do- munication between the parties but “despite an annual rent for the use of this land. It was The latter resulting in the division of W̱ SÁNEĆ main of international law is not the same thing these communication difficulties, interpreters not expected that Douglas and other British set- territory by the national border between the Brit- as recognizing their rights. Within the inter- did help Douglas explain the treaties to Abo- tlers would remain in the territory. As Chief Da- ish colonial state and the USA in the formation pretative framework of English common law, riginal groups” (Governor’s Letters, n.d., n.p.) vid Latasse had pointed out in 1934, “In returnof the 49th parallel in 1846. “In 1849, Douglas land title and possession demanded evidence and it is understood among the W̱ SÁNEĆ that for the use of meadow and open prairie tracts of moved the HBC’s headquarters, shipping de- of settlement and improvement. By this stand- their ancestors, Douglas and his men had as- Saanich, the white people would pay the Tribal pot and provisioning centre from Columbia to ard, the Colonial Office recognized that the sembled at Cordova Bay to conduct negotia- chieftains a fee in blankets and goods. That was Fort Victoria in 1851” (Ormsby,1972, n.p.). He Aboriginal peoples of Vancouver Island […] tions (Claxton, 2017). However, it is obvious understood by us to be payable each year. It was appointed Governor and Vice Admiral of 5 Vancouver and its dependency by the British be appropriating funds from the HBC and with- land. Instead, “people and places are consti- of the Enlightenment, notably in the writings of Crown. In 1858, on conversion of what was in 6 months, the HBC “was pressing its own tuted within a complex field of social relations John Locke, (British philosopher,1632-1704). A the territory of New Caledonia into the crown claims [against Douglas] for compensation for [… including] permeable boundaries or paths fuller discussion of Locke’s notion of property, colony of British Columbia, Douglas became expenditures in the colony of Vancouver Island and itineraries, structured not to physically im- appropriation and ownership is offered below Governor of British Columbia and remained […]. Instances had been found when ‘fur trade’ pede movement or exclude others, but to pro- (see note 13) and the original source can be so until 1864, after which he lived in Victoria funds had been used for colonial purposes. In vide for the social interaction of different social found in Locke’s Two Treatise on Government, with his family. His temperament had been addition, £17,000 had been taken from the fur groups within common places. [… Boundaries Sections 25-5, Second Treatise: Of Property. described as “’furiously violent when aroused’ trade account in 1858 ‘under the pressure of then,] are physically located discourses of kin, Douglas, in his dual role as agent of the Hud- [so much so that] the Indians had taken an in- the moment’ to buy provisions for the miners sharing and travel. [… They] are more like son Bay Company and Governor of the colony, veterate dislike to him” (Ormsby,1972, n.p.). flocking into British Columbia. [… Douglas had‘sign posts than fences, comprising part of a persisted in handling the treaty as a ‘sale’ of Also, his colleagues came to complain of his made] use of the authority with which he [was] system of practical communication rather than land and “permitted settlers to take Indigenous manner saying that Douglas was “always per- invested for the promotion of his private inter- social control’” (Thom, 2009, p. 181). land even if it had not been ‘purchased’ through sonally vain and ambitious of late years. His ests and the benefit of his family and retainers” Equally important is that “’First Ancestors’ treaty” (my italics and quotes, The Governor’s advancement to the prominent position he now (Ormsby,1972, n.p.). and other powerful beings are inscribed in the Letters, n.d.). This sheds some light on the con - fills, has, I [Sir George Simpson] understand, However, Douglas’s private exploits did not landscape through legends that describe the temporary problems of ‘ownership’ that have rendered him imperious in his bearing towards affect his career within the unfolding colonial creation of the landscape’s features by the resulted from the covetous behavior of early his colleagues and subordinates – assum- project. HBC’s network of trading posts formed mythic acts of a powerful Transformer (some- colonists and has a direct bearing on the reality ing the Governor not only in tone but issuing a nucleus for the policing and ‘management’ of times glossed in English […] as the Creator)of our lives here today on Pender Island. orders which no one is allowed to question” the new province. From these early moments and through the powers of these ancestors (Ormsby,1972, n.p.). of the state, the exploitation of these lands by and other beings of the spirit world that con- 9) ‘…our village sites and enclosed fields’: The corporations and private individuals was (and tinue to be recalled and experienced in these containment of the W̱ SÁNEĆ to their ‘village 6) ‘… agent of the Hudson’s Bay Company incontinues to be) entwined with legislation and places. People may encounter these ances- sites’ and ‘enclosed fields’ is currently - under Vancouver Island, that is to say, for the Gov- policing. As early as 1863, the International Fi- tral figures through the spiritual and ritualstood as the reservations located on the Saan- ernor, Deputy Governor, and Committee of nancial Society (a group of London bankers) practices that take them into the land for spirit ich peninsula. These main villages are the sites the same’: Douglas occupied a range of roles purchased a controlling interest in the HBC encounters. Relations with these ancestral of what were winter residences. As indicated that are strikingly conflictual and self-serving; (capitalizing it at £2,000,000) (Canadian En- figures requires reciprocity, sharing - andabove re (note 7), the reservationsdo not define not only did he act as head trader and then cyclopedia, n.d.). Their focus was on real-es- spect for other persons, both human and non- the extent of W̱ SÁNEĆ territory as the entire chief factor for the Hudson’s Bay Company --tate speculation and advocating for the occu- human, who are associated with place. They territory was traversed throughout the year with a private corporation that controlled (fur) trade pation of lands by British settlers and laid the reinforce kin-based property relations, when its boundaries determined through relations to across Canada -- but his position as a businessfoundation for further British controlled land the land at once belongs to the ancestors who kin, ancestors and sites of ceremonial and spir- man became conflated with his political role asinvestment corporations such as the British dwell there, and to those living today who en- itual importance and a sharing economy etc. Governor and (head of a military as) Vice Admi- Columbia Land and Investment Agency, Ltd counter the ancestors. The kin-based proper- Numerous sites on Vancouver Island and the ral of Vancouver and its dependency, where he(1868 -1964). In 1926, HBC co-founded the ties in this land-tenure system map out on the Gulf Islands were inhabited through the spring, was responsible for administering and policing Hudson’s Bay Oil and Gas company (HBOG). land in complex, multi-faceted ways. Not every summer and autumn months with one particular the colony on behalf of the British Crown. The From 1973-79, HBOG owned 35% of Siebens named place is owned by kin groups. Ances- site on Pender (Pender Canal) known to be in combination of corporate control and exploita- Oil and Gas. In 1980, HBOG bought a control- tors may be associated with lands in numer- use for over 5,000 years (Carlson and Hobler, tion of resources, private gain and political priv- ling interest in Roxy Petroleum and in 1982, ous locations and individuals associating with 1993). The extensive midden on Browning Har - ilege, was a model for the political, social and HBOG was sold to Dome Petroleum (Cana- these ancestors may enjoy property rights in bour beach, much of it now worn away, also cultural mindset of the emergent state. Access dian Encyclopedia, n.d.). a number of places. These associations with testifies to a deep history as a gathering and to the wealth of these lands was also policed, During Douglas’s employment in the HBCancestors reveal a network of places in the re- harvesting site. Arthur Manuel, an extraordi- staging contemporary inequalities that persist and afterward in his role as Governor, he gion that an individual may access by virtue nary man who did much to secure international to this day. As the gold rush began to escalate, amassed considerable personal wealth from of their genealogy” (my italics, Thom, 2009, recognition through the United Nations for the mining regulations were drawn up by Douglas, the fees he received as a chief trader and fac- p.185-186). W̱ SÁNEĆ approaches to territory rights of Indigenous Peoples, describes the re- in his role as Chief Factor of the HBC, that in- tor and later in the appropriation of lands as then, is layered and braided together through ality of the reservations in the following way: cluded a ban on settlement by white men not Governor. “As chief trader he had earned 1/85 family kinships, cultural and religious histo- “Indian reserves are only 0.2% of Canada’s of British ethnicity. And as Governor, there was of the company’s net profits, about £400 an - ries and connections to specific locations (notland mass [making it difficult] for Indigenous a deliberate policy of privileging settlers from nually. As chief factor he was entitled to 2/85. necessarily contiguous) that in turn, constitutePeoples […] to survive on that land-base. This the British Isles and a concerted effort to - en By the spring of 1850 he had accumulated the social, spiritual, economic, geographic has led to the systematic impoverishment of In- courage those of primarily Scots, English and savings of nearly £5000” (Ormsby,1972, n.p.). and political network that these relations en- digenous Peoples and this impoverishment is a Welsh ethnicity to immigrate and ‘purchase’ This is a labour earnings equivalent of approx- tail. James Douglas’s inability and no doubt, big part of the crippling oppression Indigenous land for farming. All of this was done in con- imately $149,000.00 in 2018, but with the eco- unwillingness, to recognize the nuanced sys- Peoples suffer under the existing Canadian travention of the Treaty and its stated claim to nomic power of approximately $3,856,000.00 tem of W̱ SÁNEĆ culture and claims to place colonial system. […] Settler Canadians, on the honour “unoccupied lands” reserved for fishing in 2018 (Wellman, 2017; Economic Calcula- in his delineation of territory (Government other hand, enjoy the benefit from 99.8% of the and hunting (see note 13 below for further dis- tor, 2018; Historical Statistics, n.d.). As a com- of Canada, n.d., p.3), and the imposition of Indigenous land base under the federal and cussion). None of the wealth generated from parison, an acre of farmland within the Unit- ‘boundaries’ in tandem with the creation of the provincial governments” (Manuel, 2016, p.4). A these exploits was shared with the W̱ SÁNEĆ ed States was valued at $13.51 per acre in Canadian and United States border, severed rough calculation of land per head is approx. either. “After his authority had been confirmed1850 (Farms and Farm Property, n.d., p.33). families and flattened and restricted ̱ WSÁNEĆ 11.9 sq. km per indigenous person compared to in August he vested title to land in the crown. In December 1851, Douglas commenced lands to ‘reservations’. Colonial mappings as 287.8 sq. km per non-indigenous person. What [Land] was opened to [non-British] settlement “the ‘purchase’ of land […] as an investment. outlined in the Douglas Treaty ignored the this means is that, aside from personal wealth slowly, and, in the hope of attracting more Brit- To 12 acres he acquired adjacent to the fort important role that mobility and human (andaccumulated through such things as real es- ish immigrants, it was priced low. Only British [Victoria], he soon added other properties: at non-human) relations play in shaping claimstate, the economic benefits that accrue from the subjects could purchase land, but all those who Esquimalt, 418 acres in 1852, 247 acres in to place. Paradoxically too, the western sys- land’s ‘use’ (such as agriculture, forestry, min - applied for naturalization could obtain it” (Orms - 1855, and 240 acres in 1858. At Metchosin he tem of mapping of First Nation’s territories is ing, land taxes etc.) are funneled through and by,1972, n.p.). It is important to note that eligi - bought 319 acres. His most valuable prop- currently being relied upon by those engaged to the settler state. In the distribution of monies bility for naturalization, and in turn, access to erties were at Victoria – Fairfield Farm in the British Columbia Treaty Process that to support the public infrastructure, consider- ‘owning’ land, was restricted to only some eth- and a large holding at James Bay adjoin- further undermines the land tenure system ably lower sums of monies go to reservations nicities. For example, it wasn’t until 1947 when ing the government reserve” (my quotes, based on kin, culture, religion, a sharing econ- for programmes and services (such as schools Chinese, Japanese and those from the Indian Ormsby,1972, n.p.). omy and mobility (see Thom, 2009, for further and medical services). As Manuel says, “Indig- continent, who were born in Canada, could ap- discussion). Colonial practices of mapping enous Peoples living on “Indian Reserves” do ply to become naturalized (The Chinese Expe- 7) ‘lands situated and lying as follows … with- discrete boundaries of a territory that, in turn, NOT get equal programs and services that set- rience in British Columbia, n.d.; see also note in those boundaries’: The Treaty relies on a undermine the deep history of indigenous pro- tler Canadians get” (Manuel, 2016, p.2). Add to 11 below for further information). The aggres- cartography of ‘straight lines’ drawn between tocols and relationships in the region has deep that the limited access to fishing and hunting sive grab for resources and land, serviced by sites and points and assumes that the result- consequences for First Nations and indeed, sites (and in turn, the traditional economy of the establishment of a political administration ing domain (a flat topographical measure- for ourselves as residents on the islands (seethe W̱ SÁNEĆ) due to the increased numbers to bolster the private advantages of the early ment of space) is a coherent and valid way also note 13 and 14). of people residing on traditional territory; the British ‘Canadians’ had not gone unnoticed by to define territory. It also renders invisible result is a bleak reality (see note 14 below). the British Parliament. The intention to keep W̱ SÁNEĆ conceptions of and approaches 8) ‘The conditions of our understanding of this However, solutions to these injustices are not the whole trade of the country for “the HBCo’s to the organisation of place and in turn, to sale’: As mentioned above (note 4), the claim beyond reach. In addition to arguing for an people as far as possible was […challenged ‘ownership’ of lands. The Western system of that the W̱ SÁNEĆ sold their lands is improb- increased land base for Indigenous Peoples, by a colonial secretary in London (Sir Edwardmeasurement of a territory in terms of points, able. To sell land not only presupposes a con- which is entirely achievable and, interestingly, Bulwer-Lytton]. He reprimanded Douglas, then lines and planes that define the boundaries of ception of land as a material thing ‘owned’ and/ could accommodate current private ownership took steps to terminate the [HBC’s] rights anda terrain as evidenced in the Douglas Treaty or ‘possessed’ by individuals, but is also logi- of property among the settler population (see to open the Pacific slope to [further] settlement.has its history in the cartographic practices of cally impossible in light of the religious cove- Borrows, 2015), Manuel argues that one “goal [The Crown clearly wanted a controlling interestEurope and the Middle East and is at odds nant with the ‘transformer’ or ‘creator’, XÁLS, of finding common ground that both sides can in the land and the extracted wealth]. On 2 Aug. with the complex territorial activities and the (as outlined in this publication). A transaction of live with” and one that has real potential for the 1858, [six years after the signing of the Treaty sophisticated organizational practices of the sale would have violated the religious covenant islands especially, could be in the rerouting of with the W̱ SÁNEĆ, the British] parliament con- W̱ SÁNEĆ. W̱ SÁNEĆ authors (Elliott, 1990; with XÁLS and intentionally broken an obliga- a “portion of property taxes” (Manuel, 2015, verted the territory of New Caledonia into the Paul, 1995) point out that traditional territo- tion to protect the islands -- one’s ancestors. p.222), as a way to meet the material and in- crown colony of British Columbia. […The] two rial areas of a nation included the range of On this reading, ‘selling’ the world in which you frastructural needs of the W̱ SÁNEĆ. This by no interests Douglas represented had become an- people’s movement through their lands in the lived and to which you had an intrinsic con- means is his only suggestion. It is mentioned tagonistic, and although there would be gen- change of seasons and the use and sharing nection through ancestors, kin and reciprocal here because it is immediately graspable in eral regret at his quitting his old concern [the of harvesting, fishing and hunting sites that obligations is not only highly implausible but the context of one’s daily life as a resident of HBC], his ‘ostentatious style of living’ as Gov- are contingent on kinship relations within and amplifies the precariousness and burden of thePender. Also, Manuel’s criticism opens up pos- ernor and his liberality in entertaining all com- across communities with access being bro- Treaty’s claims. It also exposes a willful insist- sibilities for a ‘grass roots’ rethinking of how ers had been saddled on the fur trade ‘whose kered through a system of cultural and politi- ence that western concepts of land as an asset one’s presence on the island can become interests benefitted very little by it’” -(Orms cal protocols (e.g., asking permissions to en- or a commodity, and individual ‘ownership’, are aligned with the interests and perspectives of by,1972, n.p.). Divested of his commission and ter a territory and/or use of a harvesting site cogent and incontrovertible, when in fact they the W̱ SÁNEĆ instead of being partitioned, as it supposedly of his interests in the HBC, James etc.). Importantly, it is not that boundaries do are fictions. is, in our colonial culture and practices of state. Douglas took the oath of office as Governor of not exist within W̱ SÁNEĆ territory per se. On Conceptions of ‘land’ as (dead) ‘matter’ that British Columbia at Fort Langley on 19 Nov. the contrary, they just are not conceptualized an individual appropriates and, in turn, ‘owns’ 10) ‘kept for our own use, for the use of our chil- 1858. However, he was subsequently found to as fixed, polygonal and discrete, patches of as ‘property’ is rooted in the particular imaginary dren’: The classification of individual ‘Indians’, 6 that is, the identification of who can be an ‘In- rate colonial perspective,] Archibald Barclay, British Isles and the latter particularly with non- migration policy was actively anti-Semitic, with dian’ continues to be controlled by the Federal London secretary of the HBC, despaired that literate, non-agricultural peoples” (Cole, 2012, the result that Canada’s record for accepting Government to this day. The registration of sta- the delay in undertaking the surveys was a fun- p.2). However, Douglas was not a biological Jews fleeing the Holocaust is among the worst tus Indians directly corresponds to an individu- damental mistake in asserting sovereignty on racist but a ‘Liberal Humanitarian’: “He did not in the Western world. Canadian policy towards al’s entitlement to reserve lands – i.e., who can Vancouver Island. Douglas had tried in vain to believe, [as many subsequent British Colonial Jewish refugees was summed up in the words claim rights to reserve lands under the terms of retain a permanent surveyor in the employ of governors, legislators and British settlers had] of one official: “None is too many”. […] In June the Indian Act and Section 91.24 of the Consti- the HBC in the period when he created his se- that Native people were inherently inferior” 1919 the entry of , Mennonites and tution of Canada. “The Indian Act has regulatory ries of treaties. But the comment in the treaty (2012, p.2). Instead, Douglas subscribed toHutterites was prohibited on the ground of their power over all facets of Indian life and provides regarding the surveys is not accurate. By the the idea that those who were not British could“peculiar habits, modes of life and methods of the federal government with a major concentra- time the North Saanich Treaty was prepared, ‘learn’ to be like the British and in turn, becomeholding property. […] The prohibition lasted un- tion of authority and social control over Indians surveyor J.D. Pemberton, under Douglas’s di- ‘civilized’ (as expressed in the assimilationisttil 1922 in the case of Mennonites and Hutter - – i.e., those that are identified [by the federal rection, had already surveyed a portion of the policies of what came to be the Indian Office).ites, longer for Doukhobors” (Canadian Council Government] as Indians. To decide Indian sta- area identified in the Treaty. Douglas wrote However, by the late 1860s, (biological) racistfor Refugees, 2000, p.3). Immigration policies tus there is a Registrar in Ottawa who deter- to Barclay on 2 November 1851: ‘Mr. Pem- assumptions about indigenous peoples drove to the present day treat immigrants from the mines who is and who is not and Indian, based berton is still busily engaged with the survey the land policies of the Colonial Office in BCBritish Isles and Northern Europe differently on INAC policies and legislation [the department being now employed in the Coast of the - Ca under Governor Frederick Seymour (who fol- than from other parts of Europe and the world. of Indigenous and Northern Affairs Canada aka nal de Arro, North of Mt. Douglas [the Canallowed Douglas into office) and functionaries Compare for example, the limited number and Aboriginal Affairs and Northern Development de Harro between the San Juan Islands and such as Joseph Trutch, Chief Commissioner protracted scrutiny and processing of Syrian Canada, AANDC]. The Registrar, accordingly, the southern Gulf Islands], and as the weather of Lands and Work (Cole, 2012). Entangled in refugees (sponsored applicants are capped at adds or takes people off the list called the Indian is fine he expects to get a good deal of work the term ‘white’ then, is a privileging of British 1000 per annum in 2017 (Brach, 2016) against Register. The issue is not who is actually an In- done before the winter sets in.’ Douglas also peoples who assumed a superior knowledge the generous and easy issuance of temporary dian, but who is entitled to be registered as an mentioned that this area was planned for a of and entitlement to devising, managing and work visas -- one of the routes to acquiring Indian according to the Indian Act. The Regis- sawmill in which he had invested. The mention policing the emergent Canadian State and its permanent residence-- to Irish citizens (6,350 trar also decides who is not entitled to be regis- of the mill and the description of Pemberton’s institutions. visas in 2013 increased to 10,750 visas per tered in the Indian Register” (my italics, National survey approximates the North Saanich Treaty It is important to acknowledge the particu- annum in 2014) (Carman, 2014; Irish Cana- Centre for First Nations Governance, n.d., p.3). region. One year later, Douglas explained the lar legacy and role that British identities and dian Immigration Centre, 2017). Similarly, we The history of the State’s system of registration North Saanich Treaty in a letter to Barclay. He perspectives play in holding (political) power, see a throwback to entry based on prejudices under the Indian Act (commencing in 1869) has commented on a subsequent Pemberton sur- decision making and in turn, the administration about ‘peculiar habits and modes of practice’ in proven to be implicitly prejudiced and injurious, vey near Esquimalt, west of the North Saan- and representation of ‘us’ – even today. For ex- the positing of the ‘Barbaric Cultural Practices with previous legislation stripping the status of ich Treaty area, and noted ‘[h]e will then com- ample, a cursory analysis of the surnames of Bill’ (2015) targeted at Muslim migrants (CBC ‘Indian’ from women who married non-Indians, mence on the Saanich District including land B.C.’s government cabinets evidences a ma- News, 05/05/2015; Smith, 01/09/2016). including the elimination of the status passing to lately purchased from the Natives of that Tribe, jority of names of British descent (NDP 82% in Within academic circles, primarily in the field her children. The Canadian state also stripped a part which has already been surveyed.’ The 2017 and Liberal 58% in 2013). Amongst the of Postcolonial Studies, reference to ‘white’ status from any ‘Indians’ who left the reserve Aboriginal representatives listed on the North number of women who have been admitted to as racial category has been criticized. It is be- without permission from the local agent of the Saanich Treaty discussed with Douglas the the BC Legislature in the past 100 years, the lieved that when defining white in racial terms Indian Office (Claxton, 2017) and anyone who treaty’s location when they visited Fort Victoriamajority of the names originate in the British this does not properly capture the essential “became a lawyer, doctor or clergyman [or] re- on 11 February 1852 to enact the transfer of Isles. On display in the halls of the Legislature characteristics of ‘white’ as an attitude of en- ceived a degree from a university, or joined the land rights. The negotiation of the geographic are photos of women who were ‘first’ to gain titlement to privilege, performed by individuals military. If you lost your status you lost the right details of the treaty were the result of an un- access and notably, the first First Nation- fe of any race. Taiaiake Alfred offers a list of “what to live on the reserve [i.e., one is legally barred documented discussion at Fort Victoria” (Frog- male member was elected only in 2016 (and we might call the essence of whiteness as cul- from one’s own home] and any benefits that ner, 2010, p. 57). Two problems surface in the into Cabinet in 2017). There are a tiny num- tural and social construct: profit, growth, com- might be associated with it. The Federal Gov- silence of the historical and oral record. On the ber of women of non-British Canadian eth- petition, aggression, amorality (consciously ernment viewed [what it called] enfranchise- one hand, “if Douglas mentioned the ongoing nicity, most of whom have been elected only masked as faux altruism), hierarchy, quantifica- ment as a way of ‘civilizing’ and assimilating survey of the North Saanich Treaty region [to relatively recently. Equally, when women were tion, dehumanization, exploitation, anti-nature, the Indian” (National Centre for First Nationsmembers of the W̱ SÁNEĆ], it was not captured given the vote in Canada, it was only those of and homogenization” (Alfred, 2005, p.110). Governance, n.d., p.4). And deep injustices in the oral history [of the W̱ SÁNEĆ. This seems British ethnicity that were granted this right. It As Alfred says, although these values are the continue to this day. With the implementation highly unlikely that such an important change was not until 1948 that those of Chinese, Japa- “overwhelming cultural reality of life in Western of Bill C3 (in 1985), the government instituted ato the territorial domain of the W̱ SÁNEĆ would nese and South Asian ethnicity could vote and societies […] they are easier to grasp [and dis- new classificatory system that divides ‘Indians’go undiscussed within the community. On the 1960 for status Indians (Canadian Encyclope- tinguish] when they are considered as a set of into 2 categories: status ‘Indians’ (6(1)) and other hand, if Douglas …] wrote the treaty with dia, n.d.). The point here is that the wide range practices, or principles, in the context of rela- ‘half-Indians’ (6(2)) with the result that “there isreference to the survey, it is difficult to under- of ethnicities in Canada (including mixed and tions between colonial states and Onkwehon- a population growing on reserves that have no stand the treaty’s vague geographic descrip- diffused British ethnicities through ‘assimila- we (original people). Euroamerican arrogance status as a result of Section 6(2). These individ- tion.” (Frogner, 2010, p. 58). tion’) are glossed by invoking the term ‘white’, and its cultural assumptions have operated in uals will have no political rights as either band The vague language of the Douglas Treaty creating problematic elisions in understanding the context of political domination and econom- members or status Indians. They will live on the and the corporate colonial methods of ‘man- the dominant culture of the colony and the as- ic dependency to produce pure expressions of reserve but will become ‘ghost people’ people aging’ these lands and the presumption of sumed normativity of British-colonial perspec- white power and project them onto the lives of with no rights.” (National Centre for First Na- Crown title, continues to cast a long shadowtives, ideologies, habits and practices. While Onkwehonwe. This arrogance is the root cause tions Governance, n.d., p.10). To have no rights over contemporary practices of partitioning the public rhetoric of racism has abated some- of the massive problems affecting our societies is the same as losing one’s land. The State’s terrain (see also note 13). For example, what, until Canada’s ethnic histories and inheritanc- and creating such a financial and moral burden management of a Register has accelerated the only recently has “Goldstream No. 13 reserve es matter to understanding who and what ‘we’ on the Settlers: social and psychological suf- disenfranchisement of First Nations and their (located 18 kilometres from Victoria) [been re- are and are essential to engaging honestly with fering in Onkwehonwe communities, unstable rights to reserve lands. “Even if a band controls turned to the W̱ SÁNEĆ. … It] was improperly the complexities of reconciliation. political relations between Onkwehonwe na- its membership list […] Indian Affairs maintains reduced in 1962 by approximately 10 acres The institutionalization of racism within co- tions and state governments, and land dis- control over who is registered as an Indian” (my from its original size. […] As Pauquachin Na- lonial legislation had not only sanctioned the possession and environmental pollution. Yet, italics, p.11). This further reveals the presump- tion Chief Bruce Underwood, on behalf of the containment and abuse of indigenous peoples Euroamerican society still displays the persis- tion that the state should have jurisdiction over W̱ SÁNEĆ Nations said: ‘The Province of Brit- within residential schools (Truth and Recon- tence of arrogance in confronting these prob- who is or is not a member a First Nation and ish Columbia, the Government of Canada and ciliation Commission of Canada, 2015; Cornet, lems by attempting to design solutions within illustrates the continuation of entrenched colo- the W̱ SÁNEĆ leaders are pleased to gather to 2007) and the policing of indigenous peoples the same intellectual and moral framework that nial practices and a lingering conception of in- commemorate the final settlement of a specific on reserves through the imposition of the pass created the problems in the first place! In the digenous peoples as wards of State under Her claim dating back to 1962. This historic settle- system (where individuals needed permissions processes that have been implemented to at- Majesty the Queen of Canada. The ‘Indians’ ment and return of the land has been a criti- from a local Indian Agent to move on and off tempt the decolonization of internal colonial are obviously more than capable of determin- cal part of our discussions for the betterment reserves) etc., but was endemic to immigra- states […] settlers have steadfastly refused ing who is a member or not and managing their for future generations. […] Our leaders are tion policies and the policing and management to remove themselves from the foundation of own registers if need be, but they are perpetu- pleased the wrongdoings of this mis-survey to of non-British migrant-settlers throughout the their colonial enterprise. They prefer to lazily ally undermined by the State in its insistence our nations’ land is now being corrected. It is 19th and 20th century. Jews, Italians, Eastern observe and address the problem from within that it maintain control over who is registered, important we honour our relatives that have Europeans, Germans, Austrians, Bulgarians, the comfort zone of their own imperial cultural i.e., who is legally entitled to be an ‘Indian’ or walked the land before us and those that walk and Turkish peoples – all describable as ‘white’ heritage” (Alfred, 2005, p.111). This is a pow- not. The undermining of rights to reserve lands, the land after we are gone’” (BC Gov News, and most definitely understood to be ‘Europe - erful indictment of non-Indigenous habits and effected through this administrative tool, begs 2013, n.p.). The return of lands took “50 years ans’ -- were prohibited from entering Canada practices and the forcefulness of the argument the question: is this a continuation of what Dun- of bureaucracy” to complete (Times Colonist, for periods of time under the Canadian Immi - provides some clarity for understanding the ef- can Campell Scott had inscribed into law in the 2013). A current example is the recognition gration Act (enacted in 1910) (Matas, 1985). To fects of colonialism on especially indigenous 1920s when he said “I want to get rid of the In- of “Cordova Spit, or TIXEN, [that] was cut off further draw out the comparison, David Matas people today. However, by collapsing together dian problem. […] Our objective is to continue from Tsawout village by ‘arbitrary lines on a suggests that “to talk of racism in Canadian im- the name of a skin colour, ‘white’, with certain until there is not a single Indian in Canada that map’” (Heywood, 2017, n.p.). migration policy is over generous. Rather we behaviours, the argument obfuscates the im- has not been absorbed into the body politic and should talk of racism as Canadian Immigration portance of ethnic histories to the identities and there is no Indian question, and no Indian De- 12) ‘white people’: The term ‘white’ within Brit- policy” (Matas, n.d.). The Canadian Council for orientation of individuals within this society and partment, that is the whole object of this Bill” ish culture during the 19th and 20th century Refugees states that “until the 1960s, [1978 ac- creates elisions around the problem of domi- (National Archives of Canada, n.d.). One might and as understood by James Douglas and no cording to Matas], Canada chose its immigrants nant colonial norms and principles that are spe- pause to reflect on the Canadian presumption doubt the clerks and witnesses of the Douglas on the basis of their racial categorization rather cific to and derivative of British culture. of ‘managing’ the “Indians” through a depart- Treaties (whose names indicate Scots, English than the individual merits of the applicant, with ment of state when the real issue has never and in one case, Welsh ethnicity), is in itself a preference being given to immigrants of North- 13) ‘unoccupied lands’: Attempts to explain been an ‘Indian problem’ but a settler problem. loaded term. Being ‘white’ was not necessar- ern European (especially British) origin over away the occupation of indigenous lands ex- How do we get rid of the settler problem? ily understood by the British colonists as the the so-called “black and Asiatic races”, and poses a host of convoluted legal arguments colour of one’s skin. Instead, it was a coded at times over central and southern European and questionable assumptions that do more to 11) ‘…the land shall be properly surveyed here- term for ‘civilized’ and in turn, “British ways [of “races” [note: Ukrainians fleeing from war dur- reveal the precariousness of one’s presence after …’: In addition to the problem of western life] were [assumed to be] superior to Ameri- ing the Bolshevik revolution were interned in and claims to ‘ownership’ of land than offer any systems of mapping territory (note 7),reading can, and infinitely superior to those of Nativeconcentration camps as were Canadian born solid foundation upon which one can rely for this phrase, as Raymond Frogner suggests, peoples. [Douglas] took for granted the dis- Japanese during WWII]. […] During the years support. The Doctrine of Discovery (appropria- “one would assume that the treated region was tinction between civilized and savage life, as- when the Nazis were in power in Germany tion by sovereign nations of lands claimed to be not yet surveyed. [… Tellingly, from a corpo- sociating the former most completely with the (and immediately afterwards), Canadian im- ‘uninhabited’), Terra Nullius (the argument that 7 no one owned the land prior to possession) eignty, the Crown acquired radical or under- edly references appropriation demonstrated the US and Canadian border and then under and First Possession (first come, first served, lying title to all the land in the province. This through the manipulation of nature. Interest- the colonial government, continuing through to as applied to homesteading) casts a long Crown title, however, was burdened by the ingly too, in many passages he draws on ex- current practices of the British Columbia Treaty shadow over our legal system and the his- pre-existing legal rights of Aboriginal people amples of “Indians” but characterizes “the Na- Process. There are a number of points that tory of these islands. The following discussion who occupied and used the land prior to Euro- tions of the Americans” as being “rich in land” intersect and are in need of fuller discussion. relies on the excellent work of Joanna Har- pean arrival. […]The Aboriginal interest in land but “poor in all the “Comforts of Life” because First, the name W̱ SÁNEĆ translates as “raised rington and Sengwung Luk who summarise that burdens the Crown’s underlying title is an they had not “improved” the land through their up” (Elliott, 1990, p.14) relating to the geogra- the historical rationale that is embedded in independent legal interest, which gives rise labour (1823, p.118). No doubt this will strike phy of their territory and also a historical mo- Canadian law and international law and thatto a fiduciary duty on the part of the Crown.’readers as palpably ironic given that there ment of their survival during a tsunami. They continue to underpin legal claims to the ‘own- However, […] the doctrine of discovery within is little evidence of our environment having have also been called the “saltwater people ership’ of indigenous lands by the Crown. The international law [see note 2] only gave rise to been “improved” by it being, in this example, [… meaning] that the sea was very important following will first offer a brief overview of the an inchoate claim of sovereignty over territory, agriculturally, but also industrially, exploited to our way of life” (Elliott, 1990, p.15). During Doctrine of Discovery and then outline how it giving rise to the more important doctrine of by individuals and corporations in the colo- the summer, families “travelled all through the informs the Douglas Treaty and continues to effective occupation. A similar doctrine of oc- nial state. Nevertheless, the main point I want territory […] fishing and gathering food. […] underpin practices of state. cupation can also be found within Canadian to draw attention to here is his argument for We did not know strict boundaries between our The Doctrine of Discovery is rooted in two law with respect to Aboriginal title claims, with ‘possessive individualism’ that is engrained in brothers and friends. Each of us did have our sources “the Papal Bulls of Romanus Pontifex the Supreme Court of Canada confirming that our Modern understanding of ownership and own hunting and fishing territories. We respect- (1455) and Inter Caetera (1493). These Bulls one must examine the continuity, exclusivity property, founded on a justification for appro- ed our traditional territories. We never fought purported to give Spanish and Portuguese and sufficiency of the occupation of the landpriation. “The same measures governed the with our friends and brothers over land” (Elliott, monarchs the right to lands and jurisdictions claimed to establish title at the time of the as- Possession of Land too” as he says. “If the 1990, p.16). over any lands that they discovered, based on sertion of European sovereignty” (Harrington, Indians had not yet mixed their labour with the Central to the̱ SÁNEĆW way of life then, the idea that the spread of Christianity to non- 2014, n.p.). In other words, the Tsilhqot’in earth in any permanent way”, or if a region was their mobility. Travelling through their is- European peoples gave them the right to do Nation v British Columbia case lays bare the were literally ‘uninhabited’, then it was consid- lands was via the water and was necessary be- so. Rather than rejecting this principle, other rights of Indigenous communities but, again, ered to be terra nullius. Locke’s discussion is cause of how their headquarters were (and are [Western] European monarchs, such as the contained within ‘the doctrine of occupation’ layered with assumptions about the alleged currently) situated. As Elliott explains, “There French and British monarchs, simply sought is a rationale that loops back to the moment validity of individuals “taking from Nature” was one thing different about our people. Our to modify the rule so that they could also gain of ‘discovery’ with the Crown never having to by outlining the “use of land” as the grounds headquarters was the Saanich Peninsula. lands and jurisdiction by discovery as well” prove what constitutes its alleged legitimacy upon which possession is valid. As he says, There was no river in our territory. [...Unlike the (Luk, 2015). Hence, the ‘discovery’ of Canadato trump the ‘underlying title’ to land. This il- “Land that is left wholly to Nature, that hath no Cowichan or the Sooke, or Qualicum people, and the concept of ‘Crown’ land, was justifiedlustrates the persistent asymmetrical relation improvement of Pasturage, Tillage, or Plant- who didn’t] have to go anywhere for fish. The accordingly and continues to persist based on between Indigenous peoples and the state ing is called, as indeed it is, waste: and we fish came to them” (Elliott, 2009, p.55). The “the idea that when European nations ‘discov- and the limit on Indigenous peoples’ rights to shall find the benefit of it amount to little moreW̱ SÁNEĆ, by contrast, “had to catch all our fish ered’ non-European lands, they gained spe- their own lands. “The idea that Crown Sover- than nothing.” Leaving aside the rather pecu- in the salt water, out in the rough water, the fast cial rights over that land, such as sovereignty eignty is presumed to exist, but indigenous liar notion of lands being ‘waste’ if not cultivat- running tide of the straights” (p.56) and hence, and title, regardless of what other peoples live presence must be proved” (Luk, 2015) is aed, Locke uses this argument to endorse the a sophisticated (and sustainable) system of on that land” (Luk, 2015). To illustrate how this logical absurdity that undermines not only In- colonization of the Americas on the basis that reef net fishing technology was developed. “A plays out in the courts today, Luk goes on to digenous peoples but also Canadians. Surely “This shews, how much numbers of men are location where a reef net is fished is called a discuss the Supreme Court of Canada deci- there are other legal frameworks (and there to be preferd to largesse of dominions, and SWÁLET. […] These locations called SWÁLET sion in the Regina v. Sparrow case of 1990. are) for contending with what one can call ‘the that the increase of lands and the right em- are all through the Gulf Islands. They belong to “This was the first time the highest courtsettler in problem’ than relying on a rationale ploying of them is the great art of government” different families” (p.57). For example, Poet’s the Canadian legal system had a chance to that perpetually undermines indigenous sov- (1823, p.122). Cove is called “SXIXTE […] XIXEXI means deal directly with s.35(1) of the Constitution ereignty and in turn, positions non-indigenous Locke’s vision of land, property and owner- “narrow” [and is] the SWÁLET of the Pelkey Act, 1982, which for the first time explicitly -en presence as relentlessly arrogant and thiev- ship and indeed, his perception of the ‘Indians’, family” (2009, p.33). However, as Elliott says, shrined the protection of Aboriginal and Treaty ing. Contending with this harsh reality is at theis not only a sad indictment of the paucity of “In 1846 when they divided up the country and Rights in the Constitution of Canada” (Luk, heart of reconciling and no doubt the para- the philosophical assumptions that underpin made the United States and Canada, we lost 2015). However, the Court began by saying digm of Crown privilege weighs heavily on thethe legacy of our colonial state, but his influ- our land and our fishing ground. It very nearly “It is worth recalling that while British policy to - conscience of some members of this nation. ence can be seen in the local example of the destroyed us. That is when we became poor wards the native population was based on re- Can anyone who is non-indigenous claim to Douglas Treaty. As Nick Claxton (Tsawout Na- people. Our people were rich once because we spect for their right to occupy their traditional be ‘settled’ in the fullest sense of the word? tion) points out, Douglas was under “explicit had everything [i.e., bountiful sources of food lands, […] there was from the outset never any The colonial origins of the state and the con- instructions […] from Archibald Barclay in Lon- and resources. …]. When they divided up the doubt that sovereignty and legislative power, tinuing presumption of the Crown’s privilege don, who was at the time the [Hudson’s Bay] country we lost most of our territory. […] They and indeed the underlying title, to such lands saturates our psyche and identity as ‘Canadi- company’s secretary. It read: ‘With respect to said we would be able to go back and forth vested in the Crown” (Luk quoting Sparrow, p ans’, and not to good purpose. the rights of the natives, you will have to con- when they laid down the boundary, they said 1103). The problem that Luk draws our atten- Another aspect of the complexity of the le- fer with the chiefs of the tribes on that subject, it wouldn’t make any difference to the Indians. tion to is one deeply absurd assumption: “it is gal fiction of Crown entitlement is the modern and in your negotiations with them you are to […] They didn’t keep that promise very long” the existence of aboriginal societies and their concept of property rights that has its roots consider the natives as the rightful possessors (p.59). The border severed families and barred rights that need proving in the courts: the sov- in the writing of the British philosopher Johnof such lands only as they are occupied by cul- people from traversing the US/ Canadian bor- ereignty of the Crown is just taken as a given. Locke (1632-1704). Expressions of Locke’s tivation, or had houses built on, at the time the der. “Some of our people were arrested for go- […] Unless an Indigenous community proves work (Two Treatises of Government) are found island came under the undivided sovereignty ing over there” (p.59). to a court’s satisfaction that it has exclusive in the Declaration of Independence and the of Great Britain in 1846. All other land is to Since that moment, there have been re- occupation or control of a territory, the default American Constitution and his central political be regarded as waste, applicable for the pur- peated sanctions against not only movement understanding of the Canadian Legal system is principle -- that rights in property are the basis poses of colonization. The right of fishing and through territory but following the implementa- that that territory is Crown land, even if Crown of human freedom and that government ex- hunting will be continued to the natives, and tion of the Douglas Treaty (which radically cur- officials and settlers have never set foot on that ists to protect these rights and preserve pub- when their lands are registered, and they con- tailed W̱ SÁNEĆ activities on their own lands) land. [Also,] even if an Indigenous community lic order-- is germane to the values of Liberal form to the same conditions with which other in 1916, the oppressive “Department of Indian can prove that they have an Aboriginal right, Democracy that embrace the Canadian state. settlers are required to comply, they will en- Affairs outlawed our reef-nets, [and] called it a Aboriginal title, or a Treaty Right, that right is In his chapter on property (Second Treatise, joy the same rights and privileges.’” (Claxton, trap […]. They made it illegal to fish with our always potentially subject to infringement by Chapter 5, ss 25-51, 123 – 26), Locke offers 2007, n.d.). This quote vividly captures the SXOLE” (reef net technology) (p.60). The du- the Crown” (Luk, 2015). a narrative on how one can ‘rightfully’ claim self-righteousness and intellectual limitations plicitous and hypocritical justification for -ban To expand on this point, the following turns a ‘thing’ to be the property of an individual. of the British Crown and its agents. If the landning reef net fishing by the government, and to an account outlined by Joanna Harrington. He argues that “there must of necessity be was unoccupied by settlers, it was incumbent in turn, undermining the core of the W̱ SÁNEĆ Not until Tsilhqot’in Nation v British Columbia a means to appropriate” what one removes on the Crown to ensure that it did not populate, economy, is evident in the permissions given (2014) have the courts acknowledged that “the from the Commons (the Commons, as hesell or license lands and control resources on to a settler fishing enterprise called J.H. Todd doctrine of terra nullius (that no one owned the describes it, is the Earth and all that it offers the ‘unoccupied lands’ so as not to undermine and Sons in 1916, who actually did use trap- land prior to European assertion of sovereignty) that was given to all human beings by God). the agreements of the treaty and encroach on ping techniques to harvest fish. The company never applied in Canada [i.e., is not legitimate], To justify what one has taken that is not, in hunting and fishing rights. It was binding on continued to trap fish until “the middle 1940s as confirmed by the Royal Proclamation of and of itself, one’s own, Locke constructs an the Crown to abide by the terms of the treaty before [they were bought out by] B.C. Packers” 1763. [… ]Territory regarded in law as terra nul- argument that builds on the premise that one and to not then subvert its terms by populating (Elliott, p.60). B.C. Packers was the culmina- lius was rarely ever empty of people. The literal ‘owns’ one’s own body. From this he infers that the lands with settlers or exploit resources. As tion of the industrialization and corporatization meaning of the Latin phrase [nobody’s land] “the Labour of his Body and the Work of his Morellato points out, “Consultation processes of the fisheries in BC that exploited the fishing does not equate to its precise legal content, Hands, we may say, are properly his.” That is, dealing with Treaty rights must take into ac- stocks and controlled “fishing stations, canner- with a fiction having been developed within thebecause one owns one’s own body it follows count oral history and the promises made at ies, fresh fish branches, fish-curing establish- law of nations of that time to treat the lands as logically that one owns whatever results from the time of the treaty regarding the nature and ments, cold storage plants, reduction plants if vacant to make the doctrine of discovery fit the ‘work of one’s hands’, i.e., one’s labour. scope of treaty rights in question. […] If the and shipyards. […] After WWII, the corpora- the situation presented. However, within Cana- He then claims that whatever one removes oral history of a treaty people provides that at tion expanded “rapidly beyond the west coast dian law [in light of the Tsilhqot’in Nation v Brit- from the State of Nature and has “mixed his the time of treaty, the Crown promised that the of Canada. Company facilities sprang up in ish Columbia case], it has been held that the Labour with” has, by extension, made (i.e., treaty people in question could fish for liveli- Atlantic Canada and in foreign coastal areas, terra nullius concept has no application vis-à- produced) the thing that was taken into his hood purposes over surrendered territory, including the United States, Mexico and South- vis the European assertion of sovereignty over own and consequently, ‘owns’ (has a ‘right’ to) then land and resources within surrendered east Asia. It operated until 1997 when its un- lands now part of Canada. On 26 June 2014, that ‘property’. To give an example, he states territory cannot be ‘taken up’ in a manner that sustainable techniques led to overfishing and in a unanimous 8:0 decision that marked the that “As much Land as a Man Tills, Plants, Im- fails to accommodate the treaty promise” (my had forced its closure (City of Richmond, n.d.). first time the highest court has recognized theproves, Cultivates, and can use the Product italics, Morellato, 2008, n.p.). An example can Elliott asks a penetrating question: “This has existence of Aboriginal title on a particular site, of, so much is his Property. He by his Labour be seen in the unrelenting market in real es- to be answered—Why did they do that to our the Supreme Court of Canada made clear that: does, as it were, inclose it from the Common. tate and land speculation – all without consul- people?” (p.60). Indeed, it is hard to fathom the ‘The doctrine of terra nullius never applied in […] God and his Reason commanded him to tation or reparation to the W̱ SÁNEĆ. kind of ignorance it takes to first appropriate Canada, as confirmed by theRoyal Proclama- subdue the Earth, i.e., improve it for the ben- and then degrade these precious lands and its tion (1763) R.S.C. 1985, App. II, No. 1.’ See efit of Life, and therein lay out something upon 14) ‘we are at liberty to hunt […] and to carry resources. Tsilhqot’in Nation v British Columbia, 2014 it that was his own, his labour” (Locke,1823, on our fisheries as formerly’: This clause is at Not only have the W̱ SÁNEĆ been dispossessed SCC 44 at para. 69. [… A]s the Court explains:p.116). the heart of a long legacy of the disenfranchise- of the ‘ownership’ of their land (remembering that ‘At the time of assertion of European sover- Throughout the discussion, Locke repeat- ment of the W̱ SÁNEĆ by the early creation of the underlying title is under Crown control whose 8 claim to the possession of lands is never chal- sentatives such as Sencot’en C’A,I,Newel, at theample, in 1998, CBC News reported “The in command at Fort Victoria. […] As an ap lenged or questioned, see note 4), but the very least), the presumption of the state here, yetNisga’a people of British Columbia have been prentice clerk he […] was sent [by Douglas] to rights and title to the benefits of the land – such again, is the alleged validity of “the Doctrine of fighting for more than 100 years for control of explore the Cowichan and Comox valleys and as hunting and fishing – continue to be subvert - Discovery” (see note 13) that sustains the gov- the Nass Valley. The deal gives the Nisga’a to establish the HBC salmon fishery and sheep ed in two ways. First, the lack of governmental ernment’s colonial project and its determination 1,930 square kilometres of land in the lower station on San Juan Island. In August 1852 Mc- adherence to the longstanding responsibilities to appropriate, control and exploit land. Nass Valley, self-government powers akin to Kay formally took possession, on behalf of the of the Douglas Treaty to not undermine the municipal governments and $190 million in HBC, of the coalfields at . […] While conditions of indigenous rights and title by al- 15) ‘We have received, as payment (no cash” (CBC News, 1998). This announcementin charge there McKay opened a coal mine, a lowing “unoccupied” lands to be occupied (note amount stated)’: As indicated above (note 4, 8 focuses on what at face value seems to be sawmill, a saltern, and a school” (Mackie, 2003, 13) has instead resulted in increased numbers and 9), it is perennial fiction that the ̱ WSÁNEĆ considerable sums of money but it ignores n.p.). He quit the HBC to manage one of his of people inhabiting W̱ SÁNEĆ territory. To give sold their lands and no sum is stated in the the actual politics and indeed, the real costs many businesses, “Vancouver’s Island Steam some context, the population of Pender has text of the treaty or other HBC documents. of the agreement – extinguishment of rights Saw Mill Company [and in]1855 he rejoined grown fivefold from approx. 400 permanentHowever, monies and goods were traded with and title, onerous financial debt to the govern- the [HBC] at Fort Victoria and bought a farm at residents in the 1970s to approx. 2400 perma- the W̱ SÁNEĆ. These transactions may have ment due to vastly expensive court costs over Cadboro Bay, which gave him the necessary nent residents today, added to which are the been understood as compensation in line with decades, the reduction in size of traditional freehold property to stand in the election the many hundreds who own vacation homes on a peace treaty. In some of Douglas’s corre- territory etc.. As Arthur Manuel observes, “Thefollowing year to the first House of Assembly of the island and who add to the concentration spondence to HBC’s offices in London, Nisga’a he Treaty […] was promoted as a break- Vancouver Island. At first defeated, McKay con- of people in the summer months. This rapid claimed to have paid £109.7.6 (109 pounds, 7through by the First Nations Summit and the tested the election of his opponent, Edward Ed- suburbanization has worsened the conditions shillings and 9 pence) “in woolen goods whichB.C. Treaty Process” (Manuel, 2015, p.120). wards Langford, on the grounds that he did not of the habitat and its animals and led to envi- they preferred to money.” […] This amount However, negotiation within the B.C. Treaty possess the necessary property qualification. ronmental degradation (contaminated beaches conflicts with the Aboriginal oral history, whichCommission is perverse. It requires that First His complaint was upheld, Langford’s election and sea life, increased light pollution and de- put the amount “at about 200 pounds” (Frog- Nations extinguish their rights and title, in or- was annulled, and McKay was elected member forestation etc.), impacting on the availability of ner, 2010, p.59). However, in the examinationder to then negotiate new, limited, rights. As for Victoria District in his stead. Shortly after the sea foods, fish stocks etc.. of HBC’s Fort Victoria accounts, and compar- Manuel says, “the Nisga’a model completely beginning of the Fraser River gold-rush in the Secondly, the British Columbia Treaty Pro- ing the “expense ledgers with the price of blan- undermined the legal principles and frame- summer of 1858 McKay was sent by Douglas cess has interfered with relationships between kets, it appears that Douglas did not honour work for reconciliation of Aboriginal Title with to search for a route to the gold-fields between First Nations, not only by imposing western the amount promised in the treaty [whatever Crown Title that the Supreme Court had set Howe Sound and Lillooet Lake. In June 1860 systems of mapping (note 7), but also, by- igthat may have been], even after accounting out in Delagmuukw. […] By 1999, the rest of he was made chief trader and placed in charge noring indigenous systems of governance. It for the 300 percent mark-up the HBC placedthe world was beginning to notice that some- of the auriferous Thompson’s River district. has created disputes over rights “to hunt and on the goods traded with the Natives” (2010,thing was very wrong in Canada. [… T]he UN […] At Thompson’s River Post (Kamloops), fish as formerly.” This is evident in itsp.59). 2007 Human Rights Commission released a report he spent six years developing the HBC’s- re treaty agreement with the Tsawwassen First There is another aspect to the myth of on Canada that chided the country for not fol- tail provisions business, supplying Europeans, Nation. “The Tsawwassen agreement unfair- payment to the W̱ SÁNEĆ. An early account lowing the Royal Commission on Aboriginal Chinese, and Indians with food and mining ly trumps this existing [Douglas] treaty, says of Chief David Latasse reveals how economic Peoples’ recommendations and sharply criti- equipment in exchange for gold dust, dollars, Sencot’en C’A,I,Newel spokesman Eric Pelkey. transactions were tracked within a communi- cized the government’s extinguishment policy and furs. […] In 1865, […] McKay conduct- […] Under the agreement, Tsawwassen are ty. “Latasse was present at the Treaty nego- as a fundamental human rights transgression. ed a survey of the country between Williams also granted hunting and fishing rights on thetiations in Victoria in 1850. His recollections […] The Human Rights Committee then de- Creek and Tête Jaune Cache in anticipation of Southern Gulf Islands and in surrounding wa- were recorded in 1934 when he was report- manded that the practice of extinguishing in- the HBC’s proposed telegraph line from Fort ters -- rights that the Sencot’en [W̱ SÁNEĆ] say edly 104. ‘I say truly that I have no knowledge herent aboriginal rights be abandoned as in- Garry (Winnipeg) to New Westminster (B.C.). are theirs alone” (Kimmett, 2007). The conse- of payments of money, as mentioned in pa- compatible with Article 1 of the […] Covenant Between 1866 and 1878 he was in charge of quences of third party (governmental) broker- pers supposed to have been signed by Chief of Civil and Political Rights, which Canada rat- the company’s operations at Fort Yale (Yale), ing of long standing relationships have created Hotutston and Whutsaymullet and their sub- ified in 1976. […] The Committee was point- in the Kootenay district, and in the Cassiar and tensions between Nations (and not just in this chiefs. I know of no act of signing such papers ing out that extinguishment of our rights to the the Stikine mining districts, and he directed its case) and because the foundation of treaty is and believe that no such signatures were in land was incompatible with our human rights coastal trade at Fort Simpson; he was promoted based on the colonial concept of ‘ownership’ fact made by those tribesmen. There was no as peoples” (Manuel, 2015, pp.120-121). factor in 1872. Four years later he was made of land, it ignores indigenous methods of gov- payment in goods, instead of money. If there These are the real forms of ‘payment’ made a justice of the peace, an appointment he held ernance where longstanding relationships are had been, custom would have required imme- by the state to indigenous peoples. When until 1885. In the summer of 1878 McKay was core to the negotiation of access to a place diate public distribution of the trade goods to there is mention in the press regarding indig- dismissed by the HBC, in part because of his within a sharing economy. Negotiations about the tribesmen and the women folk. Then all enous resistance, it “comes from below [i.e., substantial business dealings outside the com- rights then become skewed between Nations members of each sub-tribe would have known not the band councils] as the people refuse to pany. Since the Fraser River gold-rush McKay and we see the crudity of western understand- of the payment and the reason why it had surrender their birthright for quick cash and a had invested in silver mines, salmon canneries, ings of property undermine more complex and been made by the white men’” (Sources of thetiny fraction of their traditional lands” (Manuel, and timber leases, and just six months before sophisticated indigenous protocols. Douglas Treaty, n.d.). 2015, p.120). his dismissal he had been prospecting near We also see how the Crown ignores the Latasse’s description not only further expos- Bella Coola on his own account. [In]1878 he very legal agreements it purports to uphold. As es Douglas’s imperiousness and self-interest 16) ‘Hotutstun his X mark and 117 others’: entered into a two-year agreement to manage Pelkey says, “‘First Nations that used southern in his handling of negotiations (see note 6) but“Overlapping claims to the northern part of the salmon cannery on the lower Skeena River Gulf Islands in the past did so with our permis- it also illuminates Douglas’s ignorance of the the peninsula [see also note 7,3 and 11] made owned by the North Western Commercial Com- sion. We find it odd that the Crown is willing economic and political practices of W̱ SÁNEĆ it difficult for Douglas to conclude separate pany of San Francisco. During the following two to implement a Treaty with Tsawwassen that society. Apparently, Douglas had “originally in- agreements with the individual groups living decades McKay worked for the dominion gov- includes harvesting rights in the Gulf Islands tended to purchase the entire Saanich Penin- there. Instead, he concluded one single treaty: ernment, being appointed census commissioner when the Crown must first negotiate with sula us. from local representatives […] but he could the North Saanich Treaty included 117 signa- for British Columbia in 1881 and Indian agent Sort of [like] having someone make a deal to sell not reach a conclusion on the representation tories” (Government of Canada, n.d). How- two years later, first for the northwest coast and your house and then tell you about it afterwards of land use” (Froger, 2010, p.58; Sources of ever, there were apparently three groups of then for the Kamloops and Okanagan agencies. -- in real estate law this is called title fraud.’ […] the Douglas Treaty, n.d.). What this suggests W̱ SÁNEĆ people who ‘signed’ their Xs to thisWhile agent he […] established an Indian in- Pelkey says his people are concerned about a is that Douglas expected to do business with document: members of the Tsawout Nation, dustrial school near Kamloops [i.e., a Residen- depletion of resources and loss of jurisdiction a single authority, i.e., the “‘men with beards’ Tsartlip Nation and one other group whose tial School that continued to operate until 1977 in their territory. ‘We’ve never stopped sharing or adult males […] rather than group repre- identity is unknown but who may have been that incarcerated “hundreds of Secwepemc resources in our territory,’ says Pelkey. ‘We’ve sentatives” (Froger, 2010, p.52). This makes present as witnesses (Claxton, 2017). children”]. In 1893 he was appointed assistant never said we would not allow anyone else to visible his mindlessness and perhaps willful to Arthur Wellesley Vowell, the superintendent come and access resources, we ask only that disregard of the distributive communal rights 17) ‘Signatories’: The author, writer and wit- of Indian affairs for British Columbia. Through- they come and ask us for permission.’” (Kim- of the W̱ SÁNEĆ as an organized, uniformnesses of the treaty embody the confluenceout this period McKay continued to pursue his mett, 2007). W̱ SÁNEĆ rights to ‘hunt and fish jurisdiction. As Raymond Frogner points out, of the appropriation of lands, resource exploi- business interests. The year before his death he as formerly’ have been recognized in the BC “[a]s a consequence the distributed commu- tation and the imposition of legislation and a applied for a grant of 40,000 acres on Queen courts on a number of occasions (see note 3) nal rights of Aboriginal societies gained inac- judicial system that secured methods for polic- Charlotte Strait, on which he planned to estab - but, within the British Columbia Treaty Process, curate colonial legal recognition as organized, ing and overriding indigenous peoples’ rights lish a pulp-mill, but he died before he could see it the government’s methods are divisive. “First uniform social jurisdictions in state-purposed and wellbeing, all in the pursuit of the accumu- in operation. […] Like several of his colleagues, Nations that are involved in this process aren’t treaties” (Frogner, 2010, p.58). Reading be- lation of private, corporate and Crown wealth. McKay made [the] transition from fur trader to In- required to consult with neighbouring nations. tween the lines of Latasse’s account then, The individuals who were directly involved in dian agent and like most of his contemporaries ‘We’ve been banging on the door now for prob- one can surmise that the sophisticated proto- mobilizing the Douglas Treaty had combined he exhibited an abiding personal interest [in the ably up to three years [since 2004] because of cols and practices of wealth distribution within roles as HBC traders, clerks, bookkeepers, private ‘ownership’ and exploitation] of natural our dissatisfaction with the B.C. treaty process the community, coupled with the why’s and surveyors, real estate speculators and politi- resources (Mackie, 2003, n.p.). and how we see numerous First Nations lay- wherefores of the source of wealth being com- cians, and in some cases actively engaged in By comparison to McKay and Douglas (note 5 ing claim to our lands,’ says Pelkey. The [Tsa- municated to members, evidences how rela- policing indigenous peoples as Indian Agents, and 6), much less is known of Richard Golledge. wout, Tsartlip, Pauquachin and Tseycum First tionships (both endogenous and exogenous), like many other fur traders. They set the tone He “was born in West Ham, Essex, [England]. Nations …] have reserves on Pender, Mayne, reciprocity and sharing, structured W̱ SÁNEĆ for Canada as a corporate colonial state and At the age of twenty-one, [he] arrived in Fort Vic- Saturna, Saltspring and Bare Islands. ‘This is economic practices and traditions. Equally im- its egregious culture. For example, Joseph toria on the brig Tory in 1851 as an apprentice a very valuable area for us,’ says Pelkey. ‘His- portant, Latasse’s comments show how oral William McKay, born in of Scottishclerk. Until 1858, he worked as clerk and sec- torically our people here have been known as stories take legal form in that they trace, verify parents, came from a family who were active retary to James Douglas. […] Douglas was of salt water people. We have no major rivers in and confirm transactions and events. His ac - in the fur trade as trappers and managers. too high a rank to have involved himself in the our territory. We actually live out there on the count therefore further dispels the rhetoric of McKay joined the Hudson’s Bay Company on time-consuming task of book-keeping or tran- water and that’s why we have those reserves land having been ‘sold’. 1 June 1844, at age 15, and was sent to Fort scription, but he would nevertheless require the and also fishing stations’” (Kimmett, 2007). Currently, misleading and indeed, sensa- Vancouver () [… from where he] information as an aid in making decisions. […] We see in this example the devastating results tionalist descriptions of payments of seeming- accompanied […] British naval officers [… on The later period of [Golledge’s] life was marked of our government representatives and the ly large sums of money to indigenous groups the] reconnaissance of Oregon Territory. Hav- by allegations of conduct unbecoming his sta- Crown overriding the long held, peaceable andcontinue to infuse newspaper reports and ing been transferred in November 1846 to tion: drinking, gambling, and playing euchre with enduring arrangements between indigenous leave out the more complex backstories of Fort Victoria, […] in the wake of the Oregon a prostitute while acting as Gold Commissioner peoples in claims to place, as well as subvert- indigenous struggles to secure rights to their Boundary Treaty, he participated in a survey for Sooke. He married Juliana Charbonneau ing the Douglas Treaty. Instead of being led by lands through the courts. Glossing is evident of the area around Victoria and Esquimalt. In on 26 September 1871. He died in Victoria at First Nations in the negotiation of place (which in the reporting of the Nisga’a treaty arranged 1848 he was promoted to the rank of postmas- the age of 55, and was buried on 8 September obviously would have had to include repre- through the BC Treaty Commission. For ex- ter, and the following year he was […] second 1887” (Hammond, 1989, p.122). 9 Notes: W̱ SÁNEĆ covenant with XÁLS It is recommended that the comments on the W̱ SÁNEĆ People, land, ancestors and non-human elements in the world, which has nature) then has no ‘value’ unless transformed the Douglas Treaty be read in advance of XÁLS. Nor do I pretend to understand the a bearing upon how we understand and regu- through ‘use’ (see note 13). An example of this this section, especially notes 7, 8 and 13: scope and meaning of these relationships. late our relationship within W̱ SÁNEĆ territory. habit of mind can be found in how land and the notion of ‘ownership’ of land is contrast- I accept that aspects of these meanings are It is, however, not only being, but also a higher nature is curated through gardens and ‘wild- ed with selected literature that discusses closed to me and to others who are non- level of agency in the non-human world that we life’ parks, forest ‘management’ and the prac- W̱ SÁNEĆ conceptions of place, relations W̱ SÁNEĆ inhabitants of this place. must consider in understanding W̱ SÁNEĆ law. tice of destroying trees and animal habitat to to land and systems of organisation. Understanding agency in the non-human world create a scenic ‘view’. By contrast, in Clifford’s 2) To help non-indigenous readers think [is] exemplified in relation to our Relatives of the writings we begin to grasp the implications 1) The following discussion of the story of - through the significance and scope of thisDeep, cos specifically with reference to the - crea of agential relations to land. He invites us to XÁLS and its implications for understanding mological story, and in turn, gain an insight into tion story of L̵EL,TOS (James Island), an island think through and appreciate what it is to see W̱ SÁNEĆ relations to place, relies on the workthe manner in which it is integral to W ̱ SÁNEĆ within W̱ SÁNEĆ territory. [This] creation story in these islands, and its non-human inhabit- of Robert YELЌÁTŦE Clifford, a lawyer and laws, governance and understandings of place, describes both the origin of the island and ants, one’s ancient and living ancestors; to be member of the SȾÁ,UTW̱ (Tsawout) Nation. Clifford explains the role of these stories (and the name L̵EL,TOS, as well as relating howconnected to this place over layers of time; This story of XÁLS is specific to Clifford’s ̱ others of its kind) within W SÁNEĆ culture. As every island is an ancestor to the W̱ SÁNEĆ” to know in the details of the landscape (and own family history and its interpretation is he says, “Indigenous oral traditions have always (2016, p.773). the SENĆOŦEN place names) the presence eloquently explained in detail in his article used stories to teach, guide and reinforce be- Clifford continues: “Islands within W̱ SÁNEĆ and lessons of the ‘Transformer’ (or ‘Crea- ‘W̱ SÁNEĆ Legal Theory and the Fuel Spill havior, meaning they can be used to create territory were once our ancestors and were giv- tor’); to be rooted to specific fishing, hunting at SELEK̵TEL̵ (Goldstream River)’ (2016) a framework for understanding relationships en to us by the Creator to maintain our way of and harvesting locations throughout the entire and other writings (2011, 2016a). He makes and obligations, decision-making processes, life. With this gift came a reciprocal obligation clear that this particular story of XÁLS is not territory via connections to one’s (human and and deviations from accepted standards.” […] to care for these islands. This obligation is one necessarily widely shared amongst all mem- non-human) ancestors and kin over millennia The purpose of W̱ SÁNEĆ stories is not about of our sources of laws. If we are to understand and to be embodied in an enduring reciprocal bers of the W̱ SÁNEĆ Nation and variations of returning to the past, but how we choose to W relationship to these lands. And even though its telling are common within the community. ̱ SÁNEĆ law on its own terms, it would be a relate to and use stories in guiding our lives non-W I cannot reproduce all that he says as he simplification and a distortion to think of them ̱ SÁNEĆ residents are not privy to these today. There is no singular way to tell, use, only as ‘islands; – that is, inanimate masses of offers extensive fine-grained distinctions of deeper (ancestral) connections to land that or interpret a story. Stories are dynamic, not rock surrounded by water. What are the impli- are based on a cosmology reaching back its significance to his analysis of W̱ SÁNEĆ static, and may even take new shapes in differ- through time, the emphasis on relationships to law, governance and culture. Instead, I have cations of this understanding? Canadian Law ent contexts. Stories draw on past knowledge, does account for the environment, but these selected the sections of his commentary land and non-human inhabitants (rather than but there is a continual process of agency exer- stories indicate a starting point for W - where he discusses this story in particular and ̱ SÁNEĆ dominion over discrete spaces) as a founda cised in learning from and using those stories. law that goes much beyond that posture. Hu- hope that readers will seek out his writing for tion for governance is very promising. Many They are a framework for thinking and relating mans cannot live in this world without draw- questions arise: How might we understand further elucidation. As he says, “W̱ SÁNEĆ cul- (or the “process of knowing”) more than about ing and relying on the world around us. This one’s obligations under ‘treaty’ not only as a ture consists of a myriad of stories in which transmitting ‘explicit rules’ (p.769-772). notion is directly acknowledged in the story form of membership with the W̱ SÁNEĆ Na- the Creator transformed people and animals As opposed to the Lockean notion of land, ap- XÁLS turned to speak to the is- tion but also based on conceptualizing the as a way of setting an example. Each story of L̵EL,TOS: propriation and ‘use’ allegedly justifying ‘owner- lands and said: ‘look after your relatives, the land as agential? How might colonial habits is set in a different context and contains its ship’ (see Douglas Treaty, note 13), ‘land’ here W̱ SÁNEĆ People.’ The land and the ecology and practices be exchanged for a system of own unique principles. However, beyond any is understood as an agent and is foundational provides for us. However, our relationship with local laws that are derived from W̱ SÁNEĆ specific principles, these stories also give us to relationships to place, and indeed claims to the external world cannot centre only on our law and culture? As he says, “The diversity of broader insights into notions of being, agency place in the identification of territory, specific needs as humans: XÁLS then turned to the ways to interpret and use stories is an excit- and relationality in W̱ SÁNEĆ law” (p.772). fishing and hunting sites etc. That is, “land andW ing component of indigenous law. While these To guard against confusion, I have given a ̱ SÁNEĆ People and said: ‘you will also look the non-human world is animate” (2016, p.767) after your “Relatives of the Deep.’” The greater stories are less about explicit rules, they can title to the story of XÁLS to draw out the com- and I would suggest, active in its agential role attribution of being and agency to land means be the framework for deliberation, the means parison with the (North Saanich) Douglas within a ‘compact’ of reciprocality . As Clifford that our application of W̱ SÁNEĆ law must not by which we judge the application of specific Treaty. My use of the term ‘covenant’ in the says, “the relationship between humans, the only be about land, but ‘deeply informed by the legal principles, and the soil from which those title is motivated by two concerns. First, the land, and the non-human world is mutual and land as a system of reciprocal relations and ob- principles grow. […] Taking these stories seri- intention of this publication is to contrast this reciprocal” (p.767). ligations’. It also means that the responsibility to ously means paying attention to a sophisticat- passage with the tone and orientation of the Clifford begins his explanation of the storycare for the land extends beyond the actions of ed form of understanding and transmitting a Douglas Treaty to illustrate the treaty’s colo- of XÁLS by introducing the name and mean- the W - distinctive set of values and cultural assump- nial and material assumptions of ‘ownership’ ̱ SÁNEĆ. That is, W̱ SÁNEĆ law also pro ing of the SENĆOŦEN word for ‘islands’. Asvides the obligation to protect the land against tions. It also involves learning to discern the that, in turn, produce the problems of its he says, the word for ‘islands’ “is ṮEṮÁĆES, a ‘contract’. Secondly, the term is used to intro- the harmful actions of others” (2016, p.774). legal principles flowing from these stories, conjunct of ṮEĆ (deep) and SĆÁLĆES (rela- I would suggest that another important values and assumptions, and the evolving in- duce what I understand to be a deep and sub- tive or friend). The ̱ WSÁNEĆ concept of islands tellectual and experiential context guiding the tle conception of ‘land’ as an ancestral being aspect of Clifford’s discussion is the social therefore literally translates as “Relatives of the and political implication for those of us who application of those principles. All of these and existent life force, embodied in a defining Deep”, indicating an ontological connection of reside on his family’s and other members of tools for thinking foreground relationships compact between the W̱ SÁNEĆ, the islands/ the W - ̱ SÁNEĆ people with the islands in the ter the W̱ SÁNEĆ Nation’s territory. Clearly, noto ecosystems and the non-human world, ancestors and XÁLS as described in Clifford’s ritory” (2016, p.768). He is careful to note that one who is non-W as opposed to a liberal paradigm [within co- story. The English word ‘covenant’ encom- ̱ SÁNEĆ can boast of such its usage would not necessarily circulate widely a complex and integral connection to these lonial culture] that centres on the individual passes meanings beyond mere ‘contracts’ to within the community (2016a). Whether this is islands and his discussion helps expose the [and ‘ownership’ of land]. Those relation- include “an engagement entered into by a Divine because of a multiplicity of familial stories and shortcomings of the pervasive colonial imag- ships have an aspirational dimension, but Being with some other being or persons” (Oxford interpretations and/or the effects of residential inary of land as ‘real estate’ that one ‘owns’ they are not a romantic ideal any more than English Dictionary,1971, p.586). In this respect, schools is not clear. However, his point is and has ‘dominion’ over. Remembering too the notion of individual freedom and non- the term is, I hope, a useful tool for discerning that embedded in the language are mean- that regardless of any legislation relating to interference. They are what we strive for, or the complexity of W̱ SÁNEĆ relations to ‘land’ ings of relations to land (as a being) that are the conditions we seek to generate through and claims to place. However, to be clear, environmental protections, Canadian Law is distinct from colonial orientations to place. burdened by the Lockean imaginary of land law. It is an entirely different starting point in no way is the term ‘covenant’ intended As he says, “on its own, this [origin story] in- and nature as ‘dead’/inanimate and malleable with its own implications for law” (my italics, to describe the nature of the bond between dicates an attribution of much more being to matter – what Locke calls ‘waste’. Land (and 2016, p.770-771).

Members of the preparing for the ceremonial protocols and permissions for coming ashore, Reserve, Tribal Journey, 2017. 10

“Prior to the signing of the North Saanich Treaty in 1852, the subsequent creation of discrete reserves, and the creation of ‘bands’ under the Indian Act, the W̱ SÁNEĆ comprised a single group, or knot, of extended families who share the SENĆOŦEN language and cultural order that revolved around their relations with marine creatures, some terrestrial animals, spirit beings, and with one another. The W̱ SÁNEĆ families exploited different ecological niches within the W̱ SÁNEĆ world, tailoring their seasonal movements according to the timing of local events. Such a pattern meant that one family knot could acquire through trade with another family knot what could not be procured locally. Tsawout members only rarely say that they ‘own’ the locations of the reefnet fisheries or other fisheries associated with specific families, but instead are descended from those fisheries, or are owned by them. It is a complex system of belonging that links kinship and community to territory and animal relatives.” (Tsawout First Nation, 2015, p.23).

Map of Pender Island showing discrete patches and borders of individually ‘owned’ land. For a discussion of the problems relating to the concept of ‘property’ and collonial practices of map making, see ‘Douglas Treaty Notes’ 7, 9, 11 & 13.

Source: Islands Trust: http://mapfiles.islandstrust.bc.ca/ 11

Map of W̱ SÁNEĆ First Nation Traditional Territory. For a more detailed discussion see ‘Douglas Treaty Notes’ 1, 14 and all of the notes to ‘W̱ SÁNEĆ People’s covenant with XÁLS.’

Source: Courtesy of SȾÁ,UT (Tsawout) First Nation. Copyright © Tsawout First Nation. All rights reserved. This map or any portion thereof may not be reproduced or used in any manner whatsoever without the express permission of Tsawout Nation.

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