[In response to the questions and news articles about about the Douglas Treaties, here are some draft thoughts. There are some citations listed at the end, to which I will add as I can. I will try to add more links, further context, and pare it down. Marc Pinkoski]
Vancouver Island Treaties, Douglas Treaties, Fort Victoria Treaties: Some Thoughts
You say this is a mere deed, but it seems to me very like a surrender by a people of their land. Isn’t this what a treaty is? Chief Justice Cartwright
There is considerable confusion about the “treaties” of Vancouver Island. At present, there is formal agreement that there are recordings of 14 land conveyances that took place on Vancouver Island between 1850-4, and these are called the Douglas Treaties; though, who made the transactions, what they contain or meant, how many there are, and why’d they only cover certain patchwork areas is up for considerable debate. This confusion is only enhanced by details such as the last, the 14th Nanaimo treaty made in 1854 is a blank document except for 159 “X’s” marked on it and it is clear that earlier ones had their details filled in on their pages much after the fact, indicating that Indigenous leaders who participated marked a blank sheet to indicate that they were selling their land to the newcomers forever. As Thomas Berger explains, “…it appeared that Douglas had gotten the first three conveyances around Fort Victoria signed on blank sheets of paper, and, when the proper form of wording to be used had been sent from London, he had arranged for the words of the conveyances to be filled in” (Berger, One Man’s Justice, 94).
Also, unlike the Treaties signed between the Crown and Indigenous peoples east of the Rocky Mountains, there appears to be no “independent” press reporting on events. This is probably because, as Foster and Grove show (2003: 81-2) record keeping, commerce, and law were practised incestuously between very few power brokers in the Pacific Northwest at that time. That is, when the treaties were made, there was a very small, but concentrated colonial force present on the Island. In fact, Foster and Grove argue that this symbolic and material power was then coalescing and “by the 1870s and 1880s, relations between the elites in British Columbia and the western United States were even closer than they had been in the 1850s.” These factors have led to very little consensus or consideration of the treaties with Indigenous peoples on Vancouver Island, as the formal policy position of the new colony and then new province was to steadfastly deny any Indian title to land in BC (Foster 1995: 29).
In short, analyses of the historic record report simple land conveyances or surrenders – nothing like a Treaty; however, some of the Indigenous peoples of southern Vancouver Island and the Kwakiutl First Nation who are signatories to these arrangements (though not unanimously) report something different – a promise of a political relationship that they demanded in order to make peace with the rash of newcomers entering their territory and in response to specific acts of violence. Also prompting the demand for treaty discussions from some Indigenous peoples of southern Vancouver Island at this time was their knowledge of this on-going conversation in Washington and Oregon (Foster and Grove 2003, Harris 2003). There was no such issue in Russian Alaska.
Though the Douglas Treaties are confusing, there is some clarity on the topic. First, from a Canadian legal or historic view, there was a long time from when the conveyances were signed or drafted or collected on Vancouver Island to when they were determined to be Treaties with the Crown. Largely a silent issue in history for 100 or more years, it wasn’t until the ruling of the criminal trial, R v. White and Bob in 1965, that the 14 agreements James Douglas – Chief Factor of the Hudson’s Bay Company and Governor of the Colony of Vancouver Island – made with Indigenous peoples, were determined to made in his capacity as representative of Crown and thus the agreements were found to be “Treaties.” However, they are treaties conceived of in a very specific way. For instance, Foster and Grove (2003: 53-4) state “The ‘Douglas treaties’ are basically deeds of conveyance in which land is transferred to “the white people forever” in return for a monetary consideration, paid largely in blankets.” They go on to say:
Neither party spoke the other’s language, and none of the chiefs would have understood the concept of land as a transferable commodity. It seems more likely they regarded the agreements as temporary measure designed to secure peace until more permanent arrangements could be worked out. Although the text is therefore an uncertain guide to what they thought had occurred, the oral and written guarantees that were made, rather than the blankets, are probably why these documents were signed – and they are properly regarded as treaties.
According to the reports, promised to the Indigenous people who marked the agreements were lands in reserve, protection of village sites and enclosed fields, and for them and their descendants the “liberty to hunt over the unoccupied lands, and to carry on their fisheries as formally.” The value of such an agreement made at that time is disputable. Clearly if the agreements meant control over fisheries and hunting grounds, that was important; however, camas fields were not enclosed and neither were most of the 20-30 year old potato patches. Moreover villages were typically not occupied continuously. Regardless of the intention of the agreements, none of these rights were respected through time.
In his analysis of the colonial law at the time, Foster (1995: 40-41) describes Douglas’ instructions from HBC headquarters in London to discharge Indian title and shows the influence of other colonial problems of the day, saying
When the secretary of the HBC wrote to James Douglas about Indian title, he was aware of the problems in New Zealand. Archibald Barclay also had access to the report of a select committee of the House of Commons that inquired into and reported on native title in that colony. This committee had adopted the views of the New Zealand Company and the theories of Vattel, so its report – and Barclay’s instructions to Douglas – have much in common. The ‘uncivilized inhabitants of any country,’ wrote Barclay, ‘have … a right of occupancy only, and … until they establish among themselves a settled form of government and subjugate the ground to their own uses by the cultivation of it … they have not any individual property in it.’ He added that this right of occupancy was only a ‘qualified Dominion,’ extending merely to land that the Indians had ‘occupied by cultivation, or had houses built upon’ – a rather narrow formulation for hunting and gathering peoples. All other land, he said, was to be regarded as ‘waste’ and available for settlement. Barclay to Douglas, 17 Dec. 1849 (Fort Victoria Letters)
In a lengthy response to Barclay a few months later, Douglas reported on his actions:
…On the receipt of that letter I summoned to a conference, the chiefs and influential men of the Songees Tribe, which inhabits and claims the District of Victoria… as their own particular heritage. After considerable discussions was arranged that the whole of their lands… should be sold to the Company, with the exception of Village sites and enclosed fields, for a certain remuneration, to be paid at once to each member of the Tribe. I was in favour of a series of payments to be made annually but the proposal was generally disliked that I yielded to their wishes and paid them the sum at once.
The members of the Tribe on being mustered were found to number 122 men or heads of families, to each of whom was given a quantity of goods… I informed the natives that they would not be disturbed in the possession of the Village sites and enclosed fields, which are of small extent, and that they were at liberty to hunt over unoccupied lands, and to carry on their fisheries with the same freedom as when they were sole occupants of the country.
I attached the signatures of the native Chiefs and others who subscribed the deed of purchase to a blank sheet on which will be copied the contract or Deed of conveyance, as soon as we receive a proper form, which I beg may be sent out by return Post… (Douglas to Barclay, quoted in Duff 1969: 7-8) on 16 May 1850
Here is a sample treaty or of the deed of conveyance as Douglas called them:
Swengwhung Tribe – Victoria Peninsula, South of Colquitz.
Know all men, we, the chiefs and people of the family of Swengwhung, who have signed our names and made our marks to this deed on the thirtieth day of April, one thousand eight hundred and fifty, do consent to surrender, entirely and for ever, to James Douglas, the agent of the Hudson’s Bay Company in Vancouver Island, that is to say, for the Governor, Deputy Governor, and Committee of the same, the whole of the lands situate and lying between the Island of the Dead, in the Arm or Inlet of Camoson, where the Kosampsom lands terminate, extending east to the Fountain Ridge, and following it to its termination on the Straits of De Fuca, in the Bay immediately east of Clover Point, including all the country between that line and the Inlet of Camoson.
The condition of or understanding of this sale is this, that our village sites and enclosed fields are to be kept for our own use, for the use of our children, and for those who may follow after us; and the land shall be properly surveyed, hereafter. It is understood, however, that the land itself, with these small exceptions, becomes the entire properly of the white people for ever; it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.
We have received, as payment, __pounds sterling.
In token whereof, we have signed our names and made our marks, at Fort Victoria, on the thirtieth day of April, one thousand eight hundred and fifty.
(Signed) Snaw-nuck his X mark and 29 others
Done before us,
(Signed) Alfred Robson Benson, M.R.C.S.L.
Joseph William McKay.
Because of his foundational account of the ethnographic and historic record of the area, Wilson Duff (1969) was brought him in as an expert witness in White and Bob and in the course of his work on the value of the treaties as ethnographic record contends:
A treaty, of the kind discussed here, is a white man’s certificate of a transaction, initiated by him, to unburden the land of its Indian ownership. Being written in the white man’s language, it tends to incorporate his concepts of polity and property. To read a treaty is to understand the white man’s conception (or at least his rationalization) of the situation as it was and of the transaction that took place. (Duff 1969: 3-4)
And, in his recount of the appeal to the Supreme Court of Canada in the White and Bob case, Berger identified the thinking at the bar of the transactions:
In the Supreme Court we faced a bench with seven judges. T.G. Bowen-Colthurst, arguing the case for the Crown, said that the document signed at Nanaimo in 1854 was a mere deed of conveyance. This argument brought a reaction from Chief Justice Cartwright. He referred to the language of the conveyances that ran, “Know all men that we, the chiefs and people… do consent to surrender … the whole of the lands… It is understood… that the land… becomes the entire property of the white people for ever.” Addressing Bowen-Colthurst, he said, “You say this is a mere deed, but it seems to me very like a surrender by a people of their land. Isn’t this what a treaty is?” (104)
Finding the default position of treaties being surrenders and land conveyances and not political covenants narrow, here are some other ideas. In the course of the preparations of the defense for White and Bob, Berger was confronted with information that startled him. In going to the reserve to talk to his clients, he quickly learned that “this was not just Clifford White and David Bob’s case” but rather an issue for the entire community. He says “The elders told me that the members of the Nanaimo band had, under a treaty, the right to hunt in the closed season. What a treaty? I had never heard of such a treaty, but if it existed that would make a difference” (88). Clearly the community in Nanaimo thought there was an agreement that should be honoured.
And Foster contends that a bit further south,
The oral tradition of the Saanich people who signed two of Douglas’ sheets of paper is that, whatever may haven said or written at the time, they believed that the document was a peace treaty. There had been trouble over logging and over the shooting of young Indian lad, and when Douglas produced piles of blankets and asked them to put ‘X’s’ on a piece of paper, they thought they were being asked, under the sign of the Christian cross, to accept compensation for not making war. Whatever the different perceptions, it seems tolerably clear that the Saanich people could not have understood the significance of their actions in English law, although they were certainly aware that the newcomers wanted to stay and to share their land and resources.” Foster 1995: 41
Moreover, Foster explains the admitted pressure put onto local folk, saying that Gilbert Sproat (Director of the Indian Reserve Commission) recounted:
…it was clear that ‘we had taken forcible possession of the district’ because the Sheshaht people signed away their rights in the shadow of a loaded cannon. The local chiefs told him that they did not wish to sell their land, that they wanted the white people to stay in their own country. When Sproat explained that the ‘King George men’ would order them to sell because they do not work the land, an old man said that they did not care to do what the white men wanted. ‘Whether or not,’ Sproat countered, ‘the white men will come. All your people know that they are your superiors; they make the things which you value. You cannot make muskets, blankets, or bread. The white men will teach your children to read printing, and to be like themselves.’ The old man replied: ‘We do not want the white man. He steals what we have. We wish to live as we are.’ (Sproat quoted in Foster: 1995: 33)
And in contemporary dynamics, the Te’mexw Treaty Association put their historic Douglas Treaties to the forefront of their current political struggles, saying:
The five Te’mexw Member First Nations initially joined together with one common objective to support one another and combine forces to work together under one organization to negotiate a treaty under the British Columbia Treaty Process.
Songhees (Lekwungen), Nanoose (Snaw-naw-as), Beecher Bay (Scia’new), T’Sou-ke, and Malahat all share common history, culture and experiences with federal and provincial governments. Each of these member first nations is descendants of the original signatories of the Douglas Treaties on the mid-nineteenth century. James Douglas signed fourteen treaties on Vancouver Island during this period. These Douglas treaties encompass approximately 358 square miles of land around Victoria, Saanich, Sooke, Nanaimo and Port Hardy. These treaties were never honoured or recognized by both the federal and provincial governments.
Our objective to negotiate a treaty that is acceptable to each of our individual Nations that will sustain us well into the future for our children and great grandchildren and the many generations to come.
Two recent MA theses from Indigenous Governance at the University of Victoria explore the thoughts of the Douglas Treaties on Saanich communities. It is important to note that Saanich are not involved in the BC treaty process discussed above. In The Douglas Treaty and WSÁNEC traditional fisheries: A model for Saanich Peoples Governance (2003), Nick Claxton reports:
…on southern Vancouver Island Governor James Douglas negotiated 14 land purchase agreements with the indigenous nations of the area. With respect to indigenous fisheries, the Douglas treaties explicitly state that those indigenous groups signatory to the treaties have the “liberty to carry on their fisheries as formerly”. If taken literally, those indigenous peoples had a system in place, a system of governance over their fisheries, which indeed formed the core of their traditional societies. 34-5
In R v. White and Bob, the judgment is considered the first legal affirmation that the Douglas Treaties are in fact and remain to be valid treaties in accordance to Canadian law. It was ruled that Governor James Douglas who at the time was the Chief Factor in the Hudson’s Bay Company, acted on behalf of the Crown in his negotiations, arguably then the Douglas Treaty represents a Nation to Nation Agreement. The court ruled that Douglas Treaty beneficiaries could hunt in accordance to treaty rights rather than under provincial regulations. Since this ruling, Aboriginal and Treaty rights have recognized and affirmed in the Canadian Constitution under section 35. This is not to say that there is now justice today and the Douglas Treaties have been respected as “International” agreements, but to me strengthens the argument that they should be. (37-8)
The Douglas Treaty in the eyes of the Crown is in fact a valid treaty, where hunting rights extend into the whole of the traditional territory of the Saanich, and there is a traditional fishery of the Saanich that needs to be protected. This is by no means a complete picture, the courts have sidestepped the issue of a right to governance, which I would argue is a vital to understand. If the Treaty is a “treaty” or an international agreement, then the Saanich do have a right to govern themselves, fishing and hunting included, within the whole of their traditional territory. Yet the courts, which are a non-indigenous institution, and adversarial in nature, are not the solution. As Saanich we should not depend on the courts to tell us what are rights are and how to live by them. We instead have the answers within our community, homelands, and our culture. Just ask any one of our respected elders or listen to the teachings of our ancestors; they have not proven us wrong. The courts only reaffirm that these teachings need be respected. (39)
If the Crown continues to maintain that the Douglas Treaty is in fact a valid treaty between the Saanich and the Crown, then a true treaty relationship must be restored. In terms of fisheries then, the Saanich continue to have jurisdiction over their fisheries and do have the right to govern all fisheries that are taking place within the bounds of the Saanich Territory (43)
And in another IGOV MA thesis, The Oral History of the 1852 Saanich Douglas Treaty: a Treaty for Peace, Janice Knighton (2004) states that she was motivated to uncover the Indigenous perspective on the Douglas Treaties because of a general lack of their knowledge and importance. She says: “It is significant to note that the Saanich People have a different understanding (from the colonizers) of what the Douglas Treaty holds and why it was entered into.” (2004: 4). Knighton compiles some oral history:
As told by Gabriel Bartleman:…
 Foster and Grove contend there is probably a 15th agreement in Cowichan, and there is evidence of two more agreements on the mainland.
 What little work that is done is foundational: Ormsby, Duff, Harris, Tennant, Fisher, Foster (please suggest more citations).
 Judge Begbie (1886) “No proposition…could be more decisively or clearly consistently established than this, that… the Indians (not being enfranchised) had no rights to the land” other than occupation “at the will of the Crown.”
Joseph Trutch to Prime Minister MacDonald (1872): BC had never “bought out any Indian claims to the land” and to start now would be to “go back of all that has been done here for the 30 years past.”
 I find the language argument unconvincing because Douglas had been in Fort Vancouver for 19 years and then Fort Victoria at this point for at least two years, so he would have had communication skills and other capable linguists in attendance. For instance Douglas knew at this point the Indigenous peoples of Vancouver Island protected their property interests jealously. Harris repeats this argument as an explanation for the existing confusion over what was meant. Duplicity seems a more plausible explanation.
Banks, Charles (1954) British Columbia and Sir James Douglas. New York: American Newcomen.
Berger, Thomas (2002) One Man’s Justice: A life in the Law. Vancouver: Douglas & McIntyre.
Claxton, Nick (2003) “The Douglas Treaty and WSÁNEC traditional fisheries: A model for Saanich Peoples Governance,” unpublished MA thesis, IGOV, UVIC.
Duff, Wilson (1969) “The Fort Victoria Treaties” BC Studies, Fall.
Fisher, Robin (1992) Contact and Conflict: Indian-European Relations in British Columbia, 1774-1890. Vancouver: UBC Press.
Foster, Hamar and Alan Grove (2003) “Trespassers on the Soil: United States v. Tom and A New Perspective on the Short History of Treaty Making in Nineteenth-Century British Columbia,” BC Studies, Summer/Autumn.
Foster, Hamar (1995) “Letting Go the Bone,” in British Columbia and Yukon in Essays on the History of Canadian Law, J. McLaren and H. Foster eds. Toronto: Osgoode Society.
Harris, Cole (2003) Making Native Space: Colonialism, Resistance, and Reserves in British Columbia.” Vancouver: UBC Press.
Knighton, Janice (2004) The Oral History of the 1852 Saanich Douglas Treaty: A Treaty for Peace, unpublished MA thesis. IGOV, UVIC.
Mackie, Richard (1992/93) The Colonization of VancouverIsland, 1849-1858. BC Studies, Autumn.
The Martlett, “Saanich Stages Roadblock,” October 21, 2010, vol 63 (11).
Ormsby, Margaret (1958) British Columbia: A History. Vancouver: The MacMillan Company.
Ormsby, Margaret (1979) Fort Victoria Letters, 1846-1851. Winnipeg: Hudson’s Bay Historical Society
Tennant, Paul (1990) Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849-1989. Vancouver: UBC Press.