In this timeline, we offer Te’mexw Treaty Association’s views on some of the important events and milestones that have led us to this point in the modern treaty process.
Britain’s Royal Proclamation of 1763 recognizes lands belong to Indigenous people unless they are ceded or purchased by the Crown.
The Douglas Treaties were a series of treaties signed with fourteen Indigenous groups on Vancouver Island in the 1850s. The Te’mexw Treaty Association is committed to protecting the Douglas Treaties throughout our negotiations.
BC joins Canada and signs the Terms of Union. The federal government assumes responsibility for “the charge of the Indians and the trusteeship and management of the lands reserved for their use and benefit.” (Section 13, British Columbia Terms of Union).
Different laws regarding First Nations are consolidated into the Indian Act.
The potlatch was outlawed for 67 years beginning in 1884. In 1895, the ban was broadened to include “any Indian festival, dance or other ceremony” that involved the giving away of money or goods, and any celebration or dance that involved wounding of humans or animals. In 1927, any dancing off-reserve was also banned, and First Nations could only participate in shows, exhibitions or other performances with permission from Indian Affairs. In 1951, the ban on these dances and ceremonies was lifted and they were made legal again.
The McKenna McBride Royal Commission in 1916, and later the Ditchburn Clark Report in 1923, recommended to Canada and BC that the boundaries of some reserves be adjusted to increase or decrease their size or change what land was included. These recommendations were accepted by the governments in 1924. As a result, many reserves were adjusted to remove high value land and replace it with less valuable land.
Canada adds Section 141 to the Indian Act outlawing the hiring of lawyers and legal counsel by First Nations without the permission of Indian Affairs, effectively barring them from fighting for their rights through the legal system. In 1951, Canada amended the Act to remove this section.
Status Indians are allowed to vote in BC elections. Frank Calder, from the Nisga’a Nation, is the first Indigenous person elected as an MLA in BC. Before 1949, status Indians had to enfranchise (had to give up their status) to vote in provincial elections.
Several amendments are made including the removal of prohibitions on potlatches and hiring lawyers.
All status Indians are allowed to vote in federal elections. Before 1960, status Indians had to enfranchise (had to give up their status) to vote in federal elections.
Clifford White, a member of Snuneymuxw First Nation, and David Bob, a member of Snaw-Naw-As Nation, are arrested for hunting deer out of season. Both men claim a treaty right to hunt based on the promises expressed in the Douglas Treaties. The Supreme Court of Canada upholds the decision of the BC Court of Appeal recognizing that the Douglas Treaties are in fact treaties and the defendants have a treaty right “to hunt over unoccupied lands.”
The 1969 White Paper (a federal policy paper) proposes ending the legal relationship between Indigenous peoples and Canada and dismantling the Indian Act. The White Paper is met with forceful opposition from Indigenous leaders across the country and sparks a new era of Indigenous political organizing in Canada. A document called Citizens Plus is written by the Indian Association of Alberta in response to the White Paper. This document becomes known as the “Red Paper” and is supported by many Indigenous organizations as their answer to the White Paper.
In 1973, the Supreme Court of Canada makes their ruling in a case brought by Frank Calder and other Nisga’a elders against government of BC, alleging that Nisga’a’s title to their lands had never been lawfully extinguished through treaty or by any other means. The Court acknowledges that Aboriginal title exists, but refuses to issue a declaration to the Nisga’a because of a technical problem with their claim. The Calder case lays out the framework for future Indigenous land claims in British Columbia.
Canada repatriates the Constitution from Britain and includes a new section 35 recognizing and affirming the Aboriginal and treaty rights of the Aboriginal peoples of Canada.
The Supreme Court of Canada, in the case of Guerin v. the Queen about the Crown’s management of Musqueam reserve lands, recognizes the federal government has a fiduciary duty towards First Nation peoples.
In the case of R. v. Bartleman, the BC Court of Appeal finds the Douglas Treaties provide a right to hunt on unoccupied lands throughout the traditional territory of a First Nation, not just in the area described in the treaty.
In 1985, the Indian Act is amended by the passage of Bill C-31 to remove the rule that women with Indian status who married non-status men would lose their status, but discrimination is not completely wiped out. Bill C-31 also introduces the “second generation cut-off” rule and applies it even to people born before 1985. As a result, women who lost their status by marrying a non-status man get their status back, but many of their descendants still cannot get status.
In the case of Claxton v. Saanichton Marina Ltd., the Tsawout First Nation successfully uses its Douglas Treaty fishing rights to obtain a permanent injunction to stop the construction of a marina in Saanichton Bay. BC Court of Appeal finds the marina would interfere with Tsawout’s Douglas Treaty fishing rights.
In the case of R. v. Sparrow, a case brought by a Musqueam man, Ronald Sparrow, regarding his Aboriginal right to fish, the Supreme Court of Canada confirms that Aboriginal rights are protected by section 35 of the Constitution and can only be infringed by the Crown if that infringement is justified. The court sets out a justification test the Crown has to meet. This case also recognizes the Aboriginal right to fish for “food, social and ceremonial” purposes.
BC formally joins Nisga’a treaty negotiations.
The BC Claims Task Force, made up of representatives of First Nations, BC and Canada, releases its report recommending a process for modern treaty negotiations in BC.
The BC Treaty Commission is established by agreement among Canada, BC and the First Nations Summit.
The Te’mexw Treaty Association is incorporated as a society. Our five Nations come together to negotiate modern treaties with the federal and provincial governments. TTA files the Statement of Intent to enter the BC Treaty Commission treaty process.
1995 TTA table declared ready for negotiation
Openness Protocol is signed in June of 1995 by Canada, BC and the Te’mexw Treaty Association. The purpose of this Openness Protocol is to provide public access throughout the treaty negotiations process, subject to the need to conduct effective and efficient treaty negotiations.
The Te’mexw Treaty Association signs the Framework Agreement with BC and Canada. This sets out a series of topics to be negotiated among the parties.
In a case called R. v. Badger, regarding Treaty 8 hunting rights, the Supreme Court of Canada establishes the principles for interpreting treaties, including that the rights in treaties must be broadly interpreted, the Aboriginal perspective on the treaty promises must be considered and uncertainties must be resolved in favour of the Aboriginal people.
In a case called R. v. Gladstone, regarding the Heiltsuk right to commercial fishing of herring roe on kelp, the Supreme Court of Canada finds for the first time an Aboriginal right to fish commercially.
In a case called R. v. Van der Peet, regarding the conviction of a Sto:lo First Nation member for selling salmon without a license, the Supreme Court of Canada explains the test that Indigenous peoples have to meet to establish an Aboriginal right.
In a case called Delgamuukw v. British Columbia, the Supreme Court of Canada explains how to establish Aboriginal Title, describes the nature of Aboriginal Title and confirms that there is unsettled Aboriginal Title in British Columbia. The plaintiffs in this case, hereditary chiefs of the Gitksan and Wet’suwet’en, are only denied a declaration of Aboriginal Title because the Supreme Court of Canada said that a new trial was needed to hear oral history evidence, which the trial judge had refused to allow. A new trial was never pursued and the Gitksan and Wet’suwet’en’s claim remains unresolved.
In a case called Haida Nation v. British Columbia, the Supreme Court of Canada recognizes that the federal and provincial governments have a duty to consult with Aboriginal peoples before taking any action that may interfere with their Section 35 rights.
The General Assembly of the United Nations adopts UNDRIP, which contains 46 articles affirming the rights of Indigenous peoples. These include but are not limited to rights to autonomy, self-government and self-determination, lands and resources, Indigenous institutions, culture, identity, education and community.
Federal and provincial governments and TTA exchange Agreement in Principle land and cash offers (2008 – 2013).
In a case called Beckman v. Little Salmon/Carmacks First Nation, regarding the Little Salmon/Carmacks First Nation’s modern treaty with Canada, the Supreme Court of Canada establishes the principles of modern treaty interpretation and recognizes that the federal and provincial governments have a duty to honourably interpret and implement modern treaties. The Court also confirmed that a duty to consult exists whenever treaty rights may be infringed, even though the modern treaty didn’t say anything about the need to consult when land was transferred
In 2011, in response to the McIvor v. Canada court case in BC, Canada amends the Indian Act to entitle the grandchildren of women who lost their Indian status through marriage (“married out”) to register. This still leaves some descendants of those women without Indian status.
BC signs Incremental Treaty Agreements with each of the five Nations and begins early land transfers. These legally binding pre-treaty agreements provide benefits to the Nations in advance of the treaty Effective Date.
In a case called Tsilhqot’in Nation v. British Columbia, the Supreme Court of Canada grants a declaration of Aboriginal Title for the first time to the Tsilhqot’in Nation. The court declared Aboriginal Title over 1750 square kilometers of land, which is 5% of Tsilhqot’in’s traditional territory and about half the area they claimed Aboriginal Title over. This case also provides more information about the rights that are included in Aboriginal Title and the limits on Aboriginal Title, including that the government can infringe Aboriginal Title if that infringement meets a justification test set out by the Court, or if the Nation gives its consent.
AIP signed by Te’mexw member Nations, Canada and BC.
The federal and provincial governments make land and cash offers to Snaw-naw-as, Malahat, and T’Sou-ke. Songhees and Beecher Bay have yet to receive their offers.
On December 12, 2017, Bill S-3, An Act to Amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux v. Canada, passes into law. Under the bill, more descendants of women who “married out” and others whose ancestors lost status due to other discriminatory rules become entitled to Indian status.
Malahat and BC jointly purchase Bamberton lands on southern Vancouver Island. These are intended to become part of Malahat’s Treaty Settlement Lands on Effective Date.
The three parties sign a Memorandum of Understanding which calls for them to work together on planning the future of an area known as Mary Hill in Metchosin. These traditional territories of the Beecher Bay First Nation include the land on which Pearson College is located.
Songhees Nation and Royal Roads University sign a framework agreement outlining their key objectives and outcomes for the future of the property.
In December of 2018, the First Nations Summit, British Columbia and Canada sign an agreement that reaffirms their commitment to engage in modern treaty negotiation and implementation. Among other things, the agreement recognizes Aboriginal title and rights, states that extinguishment and surrender of rights has no place in modern treaty negotiation mandates, and commits the parties to work collaboratively to advance treaty negotiations. The agreement is intended to strengthen the BC treaty negotiations framework.
The federal budget announces that the federal government will forgive loans it had given to Nations to negotiate comprehensive land claims agreements and treaties and all negotiation funding going forward will be by grants (do not have to be paid back). The government also announces it will reimburse groups who have already repaid the government for such loans.
In November of 2019, British Columbia passes Bill C-41, the Declaration on the Rights of Indigenous Peoples Act. The law commits the BC government to take all measures necessary to ensure the laws of BC are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and to develop an Action Plan to achieve the objectives of UNDRIP, in consultation and cooperation with Indigenous peoples.
Further amendments from Bill S-3 come into force in August 2019. Under the bill, more descendants of people who lost their status due to past discriminatory rules become entitled to Indian status.