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Nothing 'liberal' about colonial policy prior to Confederation

After 30 years of treaty talks, the Truth and Reconciliation Commission findings, and the adoption of the United Nations Declaration of the Rights of Indigenous Peoples, First Nations still face racism on a systemic basis in this province.

After 30 years of treaty talks, the Truth and Reconciliation Commission findings, and the adoption of the United Nations Declaration of the Rights of Indigenous Peoples, First Nations still face racism on a systemic basis in this province. Can Indigenous People ever find justice in this province? John Price and Nicholas XEMŦOLTW Claxton, co-authors of the new book Challenging Racist “British Columbia”: 150 Years and Counting, suggest that reconciliation will remain elusive unless the issue of Indigenous sovereignty is recognized as central and properly addressed.

In this three-part series, the authors review how the 1871 Terms of Union that brought this province into Canada affected Indigenous peoples, how Indigenous people have fought for sovereignty before and after, and why new initiatives directed at recognizing and institutionalizing Indigenous sovereignty may be the only path leading to justice and reconciliation.

What was B.C.’s “liberal” Indigenous policy up to 1870 that, as part of the Terms of Union, was to govern Indigenous affairs after Confederation?

And does it really matter more than 150 years later?

Well, actually, it does.

The Terms of Union, including Article 13, remain embedded in the Canadian Constitution to this day.

In 2014, the Supreme Court of Canada confirmed 1846 (Oregon Treaty) as the date when “the Crown acquired radical or underlying title to all the land in British Columbia at the time of sovereignty.”

This was ground zero for colonialism in B.C. — the foundation of Article 13.

Few historians other than Daniel Clayton have explored the Oregon Treaty of 1846. But the WSÁNEĆ people knew it only too well.

The late Dave Elliot recalled: “It was 1846 when they divided up the country and made the United States and Canada. We lost our land and our fishing grounds. It very nearly destroyed us; all of a sudden, we became poor people. Our people were rich once because we had everything. We had all those runs of salmon and that beautiful way of fishing. When they divided up the country, we lost most of our territory. It is now in the State of Washington. They said we would be able to go back and forth when they laid down the boundary, they said it wouldn’t make any difference to the Indians. They said that it wouldn’t affect us Indians. They didn’t keep that promise very long; Washington made laws over our Federal laws, British Columbia made laws over those Federal laws too, and pretty soon we weren’t able to go there and fish. Some of our people were arrested for going over there.”

The Oregon treaty did indeed create an artificial barrier through the homelands of the WSÁNEĆ and other First Nations. It also deemed that the British empire possessed overarching title to all the land of the province from 1846 on — undermining Indigenous sovereignty then, and First Nations claims to Aboriginal title now.

The British foreign office based its claim on the “Doctrine of Discovery,” arguing that the supposed “discoveries” of captains Cook and Vancouver allowed them to take the territory. Not everyone agreed.

Henry Howells, active in the abolition movement against slavery, wrote the British foreign minister in 1845 to stop the aggression: “The Oregon Territory, as your Lordship doubtless knows, is occupied by about one hundred and fifty thousand Indians, who inherit it from their ancestors; to whom, therefore, it rightfully belongs, and not in equity to either of the nations claiming the same.”

The British government ignored such pleas, wilfully engaging in an act of terra nullius (declaring the land empty).

The “Doctrine of Discovery” is today totally discredited, yet it remains the legal fiction for denying Indigenous sovereignty.

Contesting Indigenous sovereignty

Declaring British sovereignty over the territory was one thing — wresting it from the tens of thousands of Indigenous people who lived on the lands was another.

The W̱SÁNEĆ and other First Nations have never given up their belief that they were and are the sovereign protectors of the land.

When settlers first arrived in the colony of Vancouver Island, they were far outnumbered by the Indigenous inhabitants. Many were willing to share the land and its resources and saw trade with the newcomers as a potential boon.

But as newcomers began to settle and use the land’s resources without permission, resistance also occurred. When colonists began cutting trees near W̱SÁNEĆ territory for a new sawmill, chiefs protested, prompting the governor, James Douglas, to call for a gathering in l852.

What happened that day nearly 170 years ago is still debated.

According to the Douglas documents, the agreement conveyed title to the whole Saanich peninsula in exchange for blankets. Yet the actual wording of the document was only appended after the meeting.

According to W̱SÁNEĆ accounts, the agreement that was reached was a peace agreement to allow some limited settlement in exchange for annual payments.

Assured that their villages, food-gathering sites and fisheries would be forever protected, most believed then and now that the agreement was one for sharing the land, not an agreement to hand over all the land to white people.

This was the argument made by W̱SÁNEĆ chief David Latess beginning a hundred years ago when he wrote officials in Ottawa for the first time. It is the position that he maintained until his death in 1936 and it remains the position of the nation to this day.

Still, W̱SÁNEĆ and others have used the Douglas agreement in court cases to protect some rights. The Tsawout community was able to block the development of the Saanichton marina because the Douglas agreement stated that the community retained the perpetual right “to carry on our fisheries as formerly.”

The Saanich treaties were two of 14 agreements, often referred to as the Douglas Treaties. In the end, however, these agreements were exceptions.

After 1854, Douglas failed to initiate any further agreements with First Nations. He became increasingly focused on attracting settlers and assuring British control of the area. To do so, Douglas often threatened violence, through gunboat diplomacy and the courts, to enforce dispossession.

The Cowichan recall: “In 1862, Douglas led a group of over 100 Hwulunitum (white) settlers into the Cowichan Valley to take possession of lands they had “purchased” from the colonial government. Douglas clearly anticipated resistance. The settlers were accompanied by a show of military force, a gunboat. As the settlers took possession of Hulqumi’num lands, the gunboat visited regularly to impose colonial law and order.”

On leaving office in 1864, Douglas made a grand gesture — he held a party in New Westminster and invited Stó:lō leaders to attend. He promised to create larger reserves in the lower Fraser region and dispatched a surveyor to do so.

“A very evil impression was introduced in the Indian mind” by this act, attorney-general Henry Crease warned those deliberating confederation in 1870. Crease was expressing what had in fact become the dominant view among officials such as himself and the main architect of land policy after Douglas — Joseph Trutch, who was appointed chief commissioner of lands and works in 1864. Trutch began to claw back reservation land.

Nearly fifty years ago, historian Robin Fisher identified Trutch as the key architect of Indian policy up to and during negotiations on Confederation. He rightfully identified Trutch as representing local settlers’ radical views — determined to reduce the size of reservations; preventing Indians from establishing their own farms like white settlers could through pre-emption; limiting the size of reservations, making them the smallest on the continent. Trutch made it clear that Indian title “has never been acknowledged by Government, but on the contrary, is distinctly denied.”

However one might describe colonial policy prior to Confederation, “liberal is not one of them,” concluded Robin Fisher. Clause 13 of the Terms of Union was “deliberately misleading.”

Scholars such as Paul Tennant, Cole Harris, Hamar Foster and John Lutz have subsequently upheld Fisher’s conclusions regarding Trutch and B.C. policies prior to Confederation. Their conclusions underscore what the W̱SÁNEĆ have experienced for generations. The dispossession experienced under Douglas and Trutch from pre-Confederation days lives on, normalized in the ongoing practices of a colonial government unable to escape its past.

Article 13 and its “Policy as Liberal as that Hitherto Pursued” would cause havoc after the province joined Canada, making “British Columbia” a province like no other. The W̱SÁNEĆ and all First Nations in the province continuously fought to maintain their control of the land, emerging as a powerful force in the Indigenous resurgence that is reshaping the province and the country.

Next Week: Part 3, Indigenous Resurgence in a Province Like No Other

Nicholas XEMŦOLTW̱ Claxton and John Price and are co-authors with Sharanjit Kaur Sandhra, Denise Fong, Fran Morrison, Christine O’Bonsawin, and Maryka Omatsu of Challenging Racist “British Columbia”: 150 Years and Counting, available as a free download at