Without Treaty, Without Conquest: Indigenous Sovereignty in Post- Delgamuukw British Columbia

In British Columbia right now the year is A.D. 1492. That is the most concise and forward-looking reading of a 1997 appellate decision by Canada's Supreme Court that reverses key findings in the 1991 decision in the First Nations land-claims case Delgamuukw v. the Queen. The implications of the decision are so monumental that many in the media, in provincial and national politics, and even on First Nations treaty-negotiating teams have not yet fully comprehended how far-reaching the new legal dispensation is for aboriginal people in the province. ¹ For the Gitksan, Wet'suwet'en, Nisga'a, and neighboring peoples, to whom the language of the original case (and of the decision) is most applicable, and to First Nations to whom the language can be more or less readily applied, it represents an inversion of all of the assumptions and certainties of colonialism. In particular, it provides for the elevation of indigenous legal systems, including systems of land tenure and concepts of sovereignty, to the level of constitutional recognition, though it leaves wide latitude for exploring legally what that will mean. Here I begin to explore the implications of the decision forthese indigenous legal systems in northwestern British Columbia today, especially considered alongside what the British Columbian government is determined to impose on First Nations: treaties that extinguish title, on the model of the Nisga'a treaty. If First Nations reject that model, then 1997 may come to mark the date when the tide of conquest was turned, when the legal clock was set back to the moment of European contact, with the relationship to settlers as yet to be determined.

The reason that, among all of the indigenous rights struggles around the globe, it is in British Columbia that aboriginals have found themselves in such a position is what has been called the British Columbia anomaly. British Columbia is a land, for the most part, without treaties. (The few exceptions include some early land transfers on Vancouver Island, the "Douglas treaties," whose legitimacy has been called into question; an area in the northeast of the province that comes under 1898's Treaty 8, which is an extension of an Alberta treaty; and the Nisga'a Treaty of 2000, discussed in greater detail below.) This lack of indisputable cession has been significant in Canadian law because of the Royal Proclamation of 1763, in which King George III declared that title to Indian territory was not to be considered extinguished or transferred merely by conquest or occupation but only through voluntary cession. The Royal Proclamation retains the status of constitutional law in Canada, which, as a Crown dominion, is even today not constitutionally distinct from the United Kingdom. Under this dispensation, British Columbia is the one area ofwhat was called British North America where treaties were utterly neglected as an instrument of colonization. When the colonies of Vancouver Island and British Columbia amalgamated and then in 1871 were confederated into Canada as the province of British Columbia, the Indian title question had not yet been settled. The federal and provincial governments each expected the other to settle the matter, but neither pressed the matter to a resolution. This situation of a legal no-man's-land persists—and even the Treaty 8 lands and the Douglas treaties have now been effectively swept aside in the current province-wide reassessment of the land question. ²

Until relatively recently, there was little opportunity for British Columbia First Nations to exploit this gaping hole in the colonizers' paperwork, due to restrictions such as a ban on organizing or fund-raising for land claims, repealed only in 1951. ³ Nonetheless, political consciousness and various forms of resistance did develop under these restrictions, much of it intertribal and focusing on fishing rights. This activism culminated in the late 1980s with Delgamuukw v. the Queen, a legal...