Colonial Land Rights on Unceded Territory

Cover Image: Freda Huson, Unist'ot'en spokesperson and founder of the Unist'ot'en healing centre, sings in ceremony as RCMP approach to arrest her during their enforcement of a Coastal GasLink court-ordered injunction against those blocking work on a gas pipeline on Monday, Feb. 10, 2020. Photo:  Amber Bracken / The Narwhal 

The Royal Proclamation is a document that set out guidelines for European settlement of Aboriginal territories in what is now North America. The Royal Proclamation was initially issued by King George III in 1763 to officially claim British territory in North America after Britain won the Seven Years War. In the Royal Proclamation, ownership over North America is issued to King George (the Crown). However, The Royal Proclamation explicitly states that Aboriginal title has existed and continues to exist, and that all land would be considered Aboriginal land until ceded by treaty. The Proclamation forbade settlers from claiming land from the Aboriginal occupants, unless it has been first bought by the Crown and then sold to the settlers.

Note: This story maps is only focused on the Indigenous lands in Western Canada. Therefore, pre-confederation treaties and agreements between the crown and indigenous peoples are not stated below.

After confederation in 1867, the newly formed Canadian government set sights on expanding its nation westward. Indigenous peoples in the region never surrendered their lands to the crown, therefore several treaties between the Indigenous peoples of this land and the new confederation had to be addressed in order for European settlement to expand westward. These treaties established in the prairies and parts of northeastern British Columbia are known as the "Numbered Treaties."

As you can see, the majority of British Columbia does not fall under Treaty Lands. Therefore, the lands which have never been surrendered to the confederation by First Nations is Unceded Territory.

Many people refer to these unceded lands as "crown lands." I was one of them until I read Section 35 and got a better understanding Indigenous Rights and Title. I have colleagues who I look up to and highly respect that still refer to unceded territory as crown land. I politely correct them, re-educating the settler colonialism we were taught in our grade schools. How can one refer to unceded territory as crown land when First Nations never ceded or legally signed away their land to the crown? It’s simply false. Add it to the list of colonial practices that continue to undermine Indigenous Rights and Title to this day.

Section 35 (1) and (2) recognizes the following:

a. First Nations/Indigenous Nations have “inherent sovereignty”, inherent rights and power of self-determination that exists now and for the future.

b. Inherent Rights and Title of First Nations/Indigenous Nations are “granted by the Creator”; they are not granted by any agreement, Treaty, Constitutions or Law and include:

• Inherent rights to language, spirituality and culture.
• Inherent rights of education, social and health.
• Inherent rights to justice and economics.
• Inherent rights to citizenship/citizens and membership.
• Inherent right for fishing, hunting, trapping and gathering.
• Inherent rights to Air and Water.
• Inherent rights to Lands and Resources. (Renewable and Non-Renewable Resources, etc.)
• Inherent rights and powers to self-determination.

Note: There is no First Nation's traditional territory data available to the public provided by the government of British Columbia. SOI's provide a general snapshot of the current First Nation's traditional territories in this region. Due to confidentiality and other reasons, the Province of British Columbia does not provide open source data on First Nation's traditional territory and their associated archaeology sites. Therefore, this map does not show all of the approximately 200 individual First Nation's traditional territories in BC so there are "gaps" in the spatial data seen below.

The Process begins when a First Nation submits a Statement of Intent with the BC Treaty Commission. To be accepted, the Statement of Intent must identify for treaty purposes the First Nation’s governing body, the people it represents and show that it has a mandate from those people to enter the process. The statement must also identify the First Nation’s traditional territory in BC and identify any overlaps with other First Nations.

Reminder: There is no First Nation's traditional territory data available to the public provided by the government of British Colombia. Publicly available SOI boundaries provide a snapshot of most of the First Nations territories in this region.

However, there is a valuable source from a non-profit, Indigenous-led organization that provides comprehensive information of indigenous territory maps. Click the link below to access the site.

 Native-Land.ca 

Elected Band and Council is governed under a federal law called the Indian Act. This act only has jurisdiction on reserve lands, NOT traditional territory. First Nation's traditional territory jurisdiction is under Section 35 of the Constitution Act and the Royal Proclamation of 1763, which pre-dates the Indian Act and all colonial "rule of law."

The author of this story map, (Aleksandar) Sasha Djakovic, spent over 4 years mapping Indigenous territories for the Province of British Columbia. He currently works as a Lab Technician at Douglas College for the Geography Department.

"I am both grateful and frustrated to be exposed to so much Indigenous knowledge in my life. I am very grateful to have been exposed to a vast amount of Indigenous oral history. However, I am very frustrated that none of this Indigenous history was taught to me in the public school systems."