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“You have these 300-year-old bigleaf maples, completely draped in hanging sheets of moss and ferns,” Ken Wu, executive director the Endangered Ecosystems Alliance says. “Every single square centimetre is covered with moss — they look like ancient beings.”

Wu is describing a 13-hectare tract of old-growth deciduous rainforest, nicknamed Mossy Maple Grove, that runs alongside a creek just south of Cowichan Lake on southern Vancouver Island. 

“You have Roosevelt elk all through the area, big herds of large ungulates,” Wu continues. “And where you get large herbivores, you get large carnivores. So, you have the wolves and cougars in the area too, and spawning salmon in the adjacent stream.”

For more than 30 years, Wu has been working to protect significant and at-risk ecosystems. He says the grove and other small, fragmented forest stands on southern Vancouver Island represent some of the most “ecologically and culturally significant ecosystems in the province.” But because they are situated on fee simple — or privately owned — land, they have historically been some of the most at-risk.

That’s because private forests are subject to far less stringent regulations than publicly owned forests in B.C. According to Wu and others, lax regulations for privately owned forests threaten species at risk of extinction, Indigenous land rights, climate security and the economy. “It’s a much weaker system of an already weak system,” Wu says. “It’s closer to a free-for-all.”

Mike Ekers, an associate professor in the University of Toronto’s department of human geography, agrees. Ekers has researched B.C.’s forestry industry for the past 15 years and is also concerned about the lack of regulatory oversight and reporting requirements for private forests in the province. He says that provincial reporting dating back nearly a century has indicated that “forestry practices were much, much more egregious, much more devastating on private lands than they were on Crown land. And this has continued to be the case.” 

Here’s what you need to know about B.C.’s privately owned forests.

Where are most of B.C.’s privately owned forests? 

About 95 per cent of land in B.C. is called “Crown land,” though most of it is not covered by treaties and was never ceded to the Crown by First Nations. The remaining five per cent of the province — about 4.5 million hectares — is held in fee simple, or private, ownership. 

According to the province, just over a million hectares, or around one per cent of B.C., are classified as “private managed forests,” meaning they can be harvested for commercial purposes. Other private lands are designated as forests, but don’t have a “managed forest” designation and cannot be harvested.

The vast majority of private managed forests in the province — around 800,000 hectares — are on southern Vancouver Island. Set within a 32-kilometre-wide tract of land running north from the Saanich Inlet to the Comox Valley, these forests make up around one-fifth of the island’s overall land base. 

Most of the remaining private managed forests are in the Kootenays, while a small number are scattered throughout B.C. 

The origin of B.C.’s private forest lands dates to the early 19th century when lands were expropriated by the Crown for settlement, mineral exploration and the construction of railways. The most significant expropriation was 850,000 hectares of Coast Salish, Nuu-chah-nulth and Kwakwa̱ka̱ʼwakw territories on Vancouver Island for the construction of the E&N railway.

How are private forests in B.C. managed?

Forestry operations on Crown lands are governed by the Forest and Range Practices Act, introduced in 2004, which includes mandatory regulations around 11 environmental, social and cultural objectives. The act is administered by the Ministry of Forests and requires forestry operators to produce comprehensive stewardship plans, consult with First Nations and local communities and report regularly to the provincial government and the public.

In comparison, most private managed forests fall under the more streamlined Private Managed Forest Land Act. The act was introduced in 2003 and is administered by the Managed Forest Council, an independent provincial agency comprised of five appointed members: two by the province, two by the private forest land owners and a chair appointed by the other four members. This act does not require owners to report publicly on activities, engage local governments or First Nations in planning or create stewardship plans. Reporting by private forestry operators is done via a one-page annual declaration form directly to the council.

While reforestation is one of five “environmental values” to which private forest operators agree to commit, it’s relatively easy for owners not to follow through, says Eddie Petryshen, conservation specialist with Kootenay-based nonprofit Wildsight. For a fee, owners can switch the land designation before they list it for sale — meaning private land designated as forest can easily be switched to land to be sold for other purposes, like property development.

“It’s a strip and flip mentality,” Petryshen says.

How have private regulations affected forest cover?

According to Wu, the most egregious difference between public and private regimes is that the latter have no prescribed harvesting limits. “You can cut as much as you want, as fast as you want,” he explains. 

With no limits to the volume of timber that can be harvested from private forest under the current legislation, Ekers says, “the old growth and the hyper-valuable timber that’s been protected through activism on the west coast of Vancouver Island has generally been liquidated” within privately owned forests. 

A 2023 map from Sierra Club BC showed 35 per cent of Vancouver Island’s old growth had been destroyed since 1993. 

While some protections have been achieved for Crown forests, these victories may have ratcheted up logging on private forests. Ekers points to Clayoquot Sound, where protests led by Nuu-chah-nulth nations ended most industrial logging on their traditional territories, which are called Crown lands by the province; in response, more pressure was put on the island’s private forests for timber resources.

Annual reports from the Managed Forest Council show a disproportionate amount of timber is harvested from private managed forests, which make up less than four per cent of the province’s harvested forest base. In the most recent report, 11.6 per cent of timber harvested in B.C. came from private forests within the Managed Forest Program. 

What environmental protections exist for private forests? 

Private forest operators in B.C. have five management objectives related to environmental measures such as soil conservation and water quality. But critics say these objectives are too broad to be meaningful, and far more lax than those applied to Crown lands.

“There are no mandatory old growth and endangered wildlife and ungulate winter range protections,” Wu says. “The private managed forest lands don’t have the stringency regarding soils and erosion. They don’t have the same road engineering standards. And they don’t have the riparian strip protections nearly on the scale of Crown lands,” he says, referring to the vegetation buffers alongside bodies of water that protect from erosion and runoff. 

In an emailed statement, a representative for Mosaic — an operator that manages 71 per cent of private forest land in B.C. — said the company’s forestry operations are certified by the Sustainable Forestry Initiative, an organization operating in Canada and the United States that sets standards for forest operators.

But Ekers says the initiative’s standards are far less robust than other forest management certification systems, such as Forest Stewardship Council certification. He describes the sustainable forestry initiative as “more voluntary” and “much weaker.” 

“It doesn’t really do anything other than provide legitimacy for companies that use it. It’s greenwashing through and through.”

Is there anything British Columbians can do if they’re affected by private logging? 

Communities concerned about logging on private forests have limited options — even if the logging affects them directly. 

In 2019, the rural community of Glade fought logging in the watershed that supplied their drinking water, bringing a challenge to the B.C. Supreme Court. Ultimately, the judge sided with the logging companies. “Do you have a right to clean water?” Justice Mark McEwan asked. “I’d suggest you don’t.” 

In the town of Wynndel, a two-hour drive from Glade, community members are once again raising concerns about the water supply as a timber company prepares to log the area surrounding their watershed.

How are First Nations rights impacted?

First Nations whose traditional lands are held in fee simple title have lost access to important foods, cultural and spiritual sites and resources and been undermined in their efforts to effectively steward or assert their inherent title over their territories. 

Both the province and Canada have staunchly maintained that private property is off the negotiating table in land claims discussions, a position solidified in B.C. the controversial 2002 referendum. This has thwarted the efforts of treaty-seeking First Nations, such as the Hul’qumi’num Treaty Group’s five Coast Salish nations whose traditional territory was nearly entirely appropriated as part of the 1887 E&N grant. 

“After almost 30 years into the [treaty] process, we have not been able to come to any kind of an agreement on how to deal with the biggest challenge that we have in our treaty negotiations, which is the private land issue,” Robert Morales, chief negotiator for the treaty group, says.

Ekers says the Private Managed Forest Land Act doesn’t make provisions for cultural, spiritual or recreational values to be protected. “Nowhere in the act is there a policy or practice related to cultural protection, or the meaningful participation of Indigenous nations.” 

In 2008, the B.C. Supreme Court ruled that the Crown had a duty to consult and accommodate issues such as access to sacred sites, hunting and harvesting cedar and traditional medicines. However, that decision was not without caveats, according to Estair Van Wagner, a professor of law at the University of Victoria, who writes, “Judicial consideration of Indigenous relations with place has focused on the duty to consult and accommodate with respect to ‘Crown land’ … This emphasis has come at the expense of attention to Indigenous property relations in areas that have been largely privatized.”

What’s the future of private managed forests in B.C.?

Widespread concerns by citizens, municipal and First Nation governments, academics, environmentalists and outdoor recreation enthusiasts led the province to initiate a review of the Private Managed Forest Land Act in 2019. 

Public feedback indicated support for the program by private forest owners, but everyone else had concerns. Key issues were impacts to local watersheds, lack of accountability, First Nations’ access to traditional resources and spiritual sites and protections for wildlife, recreation and environmental values. The most common theme among comments was that the regulations did not do enough to protect the environment. However, no changes to the act have been made since the review. 

In an emailed response to a question about whether any changes to the act are forthcoming, a representative from the Ministry of Forests did not answer directly, but told the Narwhal, “Issues raised during the review of the Private Managed Forest Program are being addressed through actions, such as conserving more old forests, including through the $1-billion Nature Agreement and a new Biodiversity and Ecosystem Health Framework,” and by supporting local forestry jobs through support for “made-in-B.C. wood manufacturing.” 

The newly re-elected NDP party promised to uphold commitments to the Nature Agreement and biodiversity strategy, as well as to implement protections for watersheds and old growth. However, it remains unclear if the Private Managed Forest Land Act will be amended. 

What about privately owned old growth in B.C.?

While B.C. once had 25 million hectares of old-growth forest, ecologists concluded in 2020 that just 35,000 hectares of the largest, most productive trees remained, disputing the provincial government’s estimate of 11.1 million hectares of old growth as “misleading.”

In 2022, private forest manager Mosaic introduced the BigCoast carbon credit initiative, which aims to defer harvesting on almost 40,000 hectares of private land, trading the timber revenues for the sale of carbon credits. The program is on hold pending a technical review, but for now, Mossy Maple Grove and a few other privately-held old-growth stands on Vancouver Island still get a reprieve from logging until 2057.

While BigCoast has come under some scrutiny for its ability to reduce carbon, Wu says the logging deferrals provide a much-needed opportunity to find a longer-term solution. “We don’t think that carbon offset projects are a surrogate for real protected areas. They can be a stepping stone to keep these areas under essentially a moratorium on logging until the private lands can be purchased [for the creation of] new protected areas, including Indigenous Protected Areas,” he said. 

And for private forests outside Mosaic’s management, it’s business as usual.

With files from Steph Kwetásel’wet Wood

Updated Feb. 20, 1:00 p.m. PT: This story has been updated to correct the size of the area in which logging will be deferred by Mosaic as part of the BigCoast carbon credit initiative. It is 40,000 hectares, not 400,000.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

In his childhood, Elder Luschiim (Arvid Charlie) remembers the Cowichan and Koksilah rivers teeming with salmon — chinook and coho, chum and steelhead — so many you could hardly see the bottom. “The run for the spring started in early May, and by the middle of May, my great grandfather Abel would have a 50-gallon wooden barrel half full of salted salmon. But you don’t see salmon at that time nowadays. Today, there’s no fish to fish.”

At 82, Luschiim has seen a lot of change. He grew up without electricity and lived through the Second World War. He remembers when, for the most part, his people lived off the land. And he has watched the gradual disappearance of the resources that once sustained his community, and the way of life that defined them.

“We used to go hunting deer, and now there’s nothing to hunt up in the mountains anymore. We used to catch lots of ducks in our fields: mallards, widgeons, teals. There’s nothing now. Or you’d go to the salt water to get ts’e’wi’uxun, your three black ducks, and your sxe:th — that’s the common murre. Some coves or bays were black with ducks; nothing today. Come January, we’d have hwikw’us, Pacific loon. That was our turkey for Christmas time. Now, you’re lucky to see a small flock of maybe 10, 15 where it used to be hundreds. All the resources are gone.”

Luschiim is a member of Quw’utsun Tribes, a Coast Salish First Nation and one of the five member nations of the Hul’qumi’num Treaty Group. Bonded by their common Hul’qumi’num language, overlapping territories, and a shared history and many cultural beliefs and traditions, the nations came together in 1994 to negotiate a modern treaty with B.C. and Canada. 

Yet, after three decades, the parties are essentially at a stalemate. The Hul’qumi’num nations want a fair settlement for the nearly 270,000 hectares of their territory that was appropriated nearly a century and a half ago. But the provincial and federal governments, who originally placed those lands in corporate hands, have a strict policy to leave private property off the negotiating table.

Hul’qumi’num territory and the ‘great land grab’

Hul’qumi’num territories extend in and around the Cowichan Valley, a fertile basin on Vancouver Island known today for its vineyards and hobby farms, quaint coastal villages and forested hiking trails. It’s a region to which tourists and newcomers alike flock for a laid-back lifestyle and access to outdoor recreation, but there’s a proverbial elephant in the room. Alongside an affluent and growing settler population, Hul’qumi’num citizens live on the sidelines in their own territory, relegated to some of the smallest reserves in the province and surrounded by a sea of private property, much of it controlled by timber companies. 

Though no historic treaty agreements or land settlements were ever made, Hul’qumi’num peoples have been exiled from much of their homelands. 

In what’s been described as “the great land grab,” with some scholars calling it one of the most egregious in Canadian history, the governments of B.C. and Canada appropriated more than 800,000 hectares of Coast Salish, Nuu-Chah-Nulth and Kwakwa̱ka̱ʼwakw territories in the late 1800s, granting them to the E&N Railway Company to pay for the construction of a rail line that ran just 115 kilometres between Esquimalt and Nanaimo. 

First Nations were moved to small reserves and stripped of their rights to the larger territory and its resources to make way for settler populations. Over the next 135 years, the E&N lands were sold and resold multiple times, including passing through the hands of several forestry giants — MacMillan Bloedel, Cascadia, Weyerhauser and others. Today, nearly 600,000 hectares are under the control of four companies: Island Timberlands and TimberWest (jointly operating as Mosaic Forest Management), Hancock Resources and the municipality of North Cowichan. 

“We’re in Quw’utsun territory. Hul’qumi’num territory,” Luschiim tells me, seated in the Quw’utsun Tribes Elders Centre in downtown Duncan. “All our land is unceded. We never sold it. We never gave it away. Nobody won it in a war. We consider it our land, but there’s companies that consider it their land.” 

The repercussions of the E&N grant have been devastating for First Nations. In B.C., just five per cent of the land base is private. But as a result of the E&N grant, private lands — also called fee simple — comprise roughly 20 per cent of Vancouver Island, and 85 per cent of the Hul’qumi’num Treaty Group nations’ traditional territories. 

Today, virtually all of the forests within the E&N grant boundary have been logged at least once, and the once-abundant wildlife and food, medicinal and cultural plants are severely depleted. Private landowners are exempt from the duty to consult with or accommodate Indigenous people, effectively excluding First Nations from participating in decisions about, or benefits from, the resources on their unceded territories.

By email, a spokesperson from Mosaic told The Narwhal, “Mosaic Forest Management is committed to recognizing and respecting the rights of Indigenous Peoples. We foster positive, mutually beneficial business partnerships with First Nations and Indigenous-led businesses to advance Indigenous economic development and participation in the forest economy.” The email also noted that a portion of profits from Mosaic’s voluntary carbon initiative go toward supporting the Pacific Salmon Foundation and the Pacific Indigenous Protected and Conserved Area Innovation Centre to “support cultural and scientific research.” 

Private lands and modern treaties: never the twain shall meet

In 1906, Quw’utsun Chief Tsulpi’multw joined a delegation to England to petition King Edward VII, asserting that, “in British Columbia, the Indian Title has never been extinguished, nor has sufficient land been allotted to our people for their maintenance.” Then, in 1909, the 10-page “Cowichan Petition,” was sent to colonial officials in London, asserting Quw’utsun peoples had possessed and occupied their land since “time immemorial” and their title to that territory was expressly recognized in the 1763 Royal Proclamation. 

Neither petition yielded the success the Quw’utsun people had hoped for, and today they are still fighting for land justice. While many other First Nations make strides forward in achieving land-related restitutions, those with territories consumed in fee simple title are thwarted in their efforts. This is largely because the B.C. government has remained consistent in its opposition to renegotiating ownership of any private lands. That position was solidified in a controversial 2003 referendum in which British Columbians were asked whether they support or oppose the expropriation of private properties for treaty settlements.

“From the very beginning, the government of British Columbia has said that private land is not on the table for negotiation,” Robert Morales (Tl’ul’tut) says. 

A Harvard-educated lawyer and member of Quw’utsun Tribes, Morales is the chief negotiator for the Hul’qumi’num Treaty Group. By negotiating together, the treaty group nations hoped to present a stronger front at the negotiating table. Yet, three decades into the process, they remain at what Morales calls a “significant stalemate.” 

“After almost 30 years, we have not been able to come to any kind of an agreement on how to deal with the biggest challenge that we have in our treaty negotiations, which is the private land issue,” he explains.

In 2005, the Hul’qumi’num nations published “Getting to 100%,” a booklet articulating the communities’ vision for the treaty process outcome. The top priority was resolution of the lands issue: “Our people want Title recognized to 100 per cent of Hul’qumi’num territory, and we want greater control over or compensation for lands and resources within that territory.” (I met Morales in 2004 when I was hired as a writer for the booklet project. I have not worked with the nations since, and none of their members reviewed any version of this article before publication.)

Armed with this clear directive, Morales approached treaty negotiations prepared to explore options that might comprise a creative, but fair, solution. “Return of the land is an option, but we know that’s not something that will happen,” Morales says. “The Hul’qumi’num Nations are not asking that land be expropriated from non-Indigenous peoples, even corporations, to settle this treaty.”

The first option Morales brought to the negotiation table was co-management, specifically, legislation that would enable the nations to share management responsibilities for the vast private forest lands with the four big timber companies that are the largest landholders on their territory. But that was a non-starter. “British Columbia in particular is not prepared to enact legislation that would mandate private corporations to co-manage their lands with the Hul’qumi’num Nations,” Morales says. Nor was there any appetite by the province to enforce mechanisms such as consultation and accommodation, which would require the companies to include First Nations in their decision-making processes. 

Next, Morales and his team brought forth the idea of revenue-sharing. Again, the province indicated that it was not prepared to introduce legislative measures that would require private timber companies to share a portion of their revenues with the Hul’qumi’num Nations. 

Morales explored every option he thought was possible. “At one time, we even put on the table a moderate livelihood approach, where individuals could earn a moderate livelihood through, for example, digging clams, which is a long-standing cultural tradition, or small fisheries.” This proposal, which would require Hul’qumi’num peoples to acquire the landowners’ permission to access traditionally harvested resources, was also rejected by B.C. And, Morales admits, the idea might not even be possible anymore “because of the heavy use by non-Indigenous people and the pollution in this territory.”

The land issue is a human rights issue

In 2007, frustrated by the fruitless negotiation process, Morales led the treaty group to launch a petition with the Inter-American Commission on Human Rights, an autonomous arm of the Washington, D.C.-based Organization of American States that observes and reports on human rights issues in the Americas. The petition alleged that, by granting 85 per cent of Hul’qumi’num territory to private landowners via the E&N railway grant, the Crown had violated the nations’ rights to property, culture and equality of law, as well as other internationally enshrined human rights.

In bringing their grievance to the international stage, Morales and his team hoped to reframe the issue from a land claims issue to a human rights issue, and finally break the negotiating deadlock. 

The delegation of 15 included all five chiefs, Morales, members of the treaty group’s staff and legal counsel. Elder Luschiim prepared an affidavit for the hearing, a deeply powerful statement that read like an elegy. In it, he described a childhood in which he learned how to respect his fellow man and the natural environment, his peoples’ traditional lifestyle and the importance of Kw’aythut, a sacred bathing ceremony that takes place in pristine pools in the forests or up the mountain. 

Most of all, he described the losses. The pollution of those sacred pools from agricultural and industrial run off. The loss of entire forests due to expansive clear-cutting. Finding carcasses of animals that starved or froze to death without those forests to protect them. The desecration of burial grounds to make way for subdivisions. And more losses, which have continued to accumulate in the 15 years since the hearing. 

The nations are still awaiting a final ruling from the commission, which, according to Morales, is “over-taxed and underfunded.” 

The petition precipitated a turning point in the negotiating process, fracturing relationships within and amongst the treaty group nations as well as with provincial and federal negotiating parties. “It was a difficult time in terms of the repercussions for making the choice to advance our issues to an international forum,” Morales says. Most notably, the federal government, which had opposed the group’s petition vehemently, withdrew from the negotiating table for a number of years. Stz’uminus First Nation, previously the sixth member of the treaty group, left to pursue their own agreement with the Crown. (Stz’uminus Chief John Elliott did not respond to a request for comment.)

Morales believes Canada’s response speaks to the country’s reluctance to have external parties involved in its domestic issues. “Canadians historically have been very proud of the fact that they are defenders of human rights, and in particular have been very outspoken about external nations breaching peoples’ human rights,” Morales says. “But [they] seem to be quite reluctant to address the human rights of the Indigenous peoples here in Canada.”

Agreements, memorandums and other constructive arrangements: the evolution of treaty-making

Treaty-making has evolved markedly over the past decade. Three decades ago, when the B.C. Treaty Commission was created, the expectation was all First Nations would negotiate modern treaties — comprehensive agreements leading to self-government. Today, the treaty commission facilitates a variety of “agreements, memorandums of understanding and other constructive arrangements,” allowing nations to regain control over a specific jurisdictional area. 

For example, the Quw’utsun Tribes recently reclaimed oversight of its child and family services and the Council of Haida Nation received recognition of its inherent Rights and Title to all of Haida territory, through the groundbreaking Gaayhllxid/Gíihlagalgang “Rising Tide” Haida Title Lands Agreement.

“I have witnessed an unprecedented alignment of the federal Liberal government and the NDP provincial government making it possible for innovations within the treaty negotiations framework,” Celeste Haldane, B.C. Treaty Commissioner, told The Narwhal in a written statement. 

Earlier this year, Quw’utsun Tribes and Lyackson First Nation, both Hul’qumi’num Treaty Group Nations, together signed an incremental treaty agreement for the return of 312 hectares of private forest lands, which the province purchased from Mosaic at a cost of $8.55 million. A legally binding agreement between the nations and the province, the incremental treaty allows Quw’utsun and Lyackson to build capacity internally while Morales continues to negotiate for a more comprehensive deal. If and when a modern treaty is ratified, the incremental agreement will be absorbed within it.

“Private lands are only on the table with a willing seller–willing buyer and this is definitely an approach that First Nations in the treaty negotiations process have been pursuing,” Commissioner Haldane says. 

While Morales acknowledges that these alternate agreements can help First Nations move forward in their goals, he cautions that they are not without risks. “[Modern] treaties gain protection under Section 35 of the Constitution. These smaller deals don’t.” In other words, a treaty recognizes and protects Indigenous Rights and Title, but in the absence of a treaty, there is uncertainty about the nature and scope of those rights. Further, he suspects the provincial and federal governments prefer standalone deals because they detract the focus from more comprehensive settlements, which entail “potentially a very large outcome in terms of both finances and land jurisdiction.”

Where these other agreements leave the Hul’qumi’num nations in their collective intention to regain control over their private lands remains uncertain. It’s difficult not to contrast the Hul’qumi’num peoples’ situation with that of the Haida. While the Rising Tide agreement enables the Haida Nation to assume jurisdiction over land and resource decision-making, a similar outcome has simply not been possible in Hul’qumi’num territory because of the provincial and federal position on private lands.

The implications of UNDRIP, and the obligation to make redress

With other options exhausted, Morales is now looking toward redress as the remaining, viable solution. “International law says that where a state confiscates Indigenous peoples’ lands, they have an obligation to either return the land, which [Canada and B.C.] cannot do, or to make redress, which primarily would be through compensation,” Morales says, referencing the United Nations Declaration on the Rights of Indigenous Peoples (commonly referred to as UNDRIP). 

In fact, for the first time in Morales’ nearly 30-year involvement with treaty negotiations, the federal government has recently signalled a willingness to discuss the option of redress, although this conversation is in its infancy and not yet officially on the negotiating table.

“I don’t know the approach they’re going to take. Are they going to do an analysis, [whereby] First Nations will have to go through some kind of a process to establish that they have a claim that meets the requirements to prove Title? Or are they simply going to accept the B.C. Treaty Commission Statement of Intent map? The first step is just getting it on the table.”

In a statement from the federal government, a media spokesperson said, “Crown Indigenous Relations and Northern Affairs is working to achieve redress and advance the implementation of the United Nations Declaration on the Rights of Indigenous People. Canada’s focus is on working in partnership with Indigenous People provinces and territories, and all Canadians to address past harms, support strong and healthy communities. Negotiating Treaties, agreements and other constructive arrangements can be a means of redress to support Nations by providing the resources and investments for Nations to advance their visions for self-determination.”

Should such a discussion take place, calculating compensation for the Hul’qumi’num Nations’ territory is sure to be complicated. The land mass in the treaty group’s statement of intent is nearly 900 times the size of the amount purchased in the Quw’utsun and Lyackson deal; if a similar formula is applied, that would put a hypothetical value on the appropriated Hul’qumi’num territory at close to an unprecedented $7.5 billion.

Regardless of approach, Morales is eager to get back to the conversation, which was on hold for several weeks due to the B.C. provincial election in October. The narrow win by the NDP may be the best outcome for the continuation of the group’s treaty negotiations, as Premier David Eby has signalled a commitment to advancing Indigenous peoples’ rights and reconciliation via the Declaration on the Rights of Indigenous Peoples and UNDRIP. 

Real life problems, and the possibility of a better future

Now in his early 70s, Morales is less optimistic than he once was about the possibility of reaching a settlement. “I used to sit at the table with Elders and they would say, ‘We don’t know where the treaty is going to get settled in my lifetime.’ Many, many, many of those Elders have now passed on. And you know, it may be future generations that are going to have to try and deal with this issue.” 

Among them may be his daughter Sarah Morales, a law professor who is part of a research team exploring the impacts of the E&N land grant on Hul’qumi’num people, and providing both practical data and out-of-the-box thinking that may help the treaty group at the negotiating table.

For his part, Morales is philosophical about the “real life problems” faced by his people, many of whom live on reserve lands — properties that they can’t even own under the Indian Act. “I look at the wealth the non-Indigenous population have generated and are privileged to have, which was built on the back of the lands and resources of the Hul’qumi’num nations’ citizens, who have been restricted to living on small parcels of land and [had] no access to resources. This has created some real challenges: significant poverty, significant health issues, significant social issues.”

“Can a treaty solve all of that? I don’t know. If we are able to get a fair settlement, how will we be able to build a better future for children and grandchildren and great grandchildren? I think that’s going to be our challenge, but first we have to get to where we can even begin to do that.”

Updated on Nov. 15, 2024 at 9:10 a.m. PT: This story was updated to correct a photo caption that previously said Robert Morales had been negotiating with the Crown for nearly 30 years. While the Hul’qumi’num Treaty Group was created in 1994 to negotiate a modern treaty, Morales joined as chief negotiator in 2000. The spelling of Quw’utsun has also been corrected.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

In March, a small non-profit in British Columbia cut 10 cheques worth approximately $5,500 each, and hand delivered them to as many First Nations on southern Vancouver Island. The money, collected in the second half of 2023, is the first annual installment of voluntary “rents” paid by residents and business owners who live and work on the First Nations’ homelands. 

The South Island Reciprocity Trust is the brainchild of Craig Candler, a second-generation Canadian and cultural anthropologist who has worked with Indigenous communities for nearly three decades. “I felt it was really important for there to be a pathway that wasn’t just recognizing with words that we’re on Indigenous territory, but was actually meaningfully giving back to the communities who we need to thank for where we get to live.” 

Established in June 2023, the South Island trust is the first of what Candler intends to grow into a series of regional trusts created in partnership with First Nations across Canada. The trusts will fall under the broader umbrella of the Reciprocity Trusts Society, the non-profit created by Candler to administer the program.

The idea for a “voluntary rents” initiative first came to Candler nearly two decades ago, not long after he purchased his first family home in Esquimalt, B.C. “After renting for ages, we were able to put a down payment on a house, which turned us into landowners,” he says. 

At the time, Candler was employed by an engineering and environmental science firm that was working on various land-use projects involving Indigenous communities — in both remote places and major cities. This experience opened his eyes to the extreme constraints imposed on urban nations’ access to their traditional territories and resources. “It was the first time I had worked with a set of urban nations whose lands had been taken up by thousands and thousands of little pieces of private property, just like the one we had bought.” 

Moved to act, Candler approached the late Andy Thomas, then-chief of the Esquimalt Nation. Candler asked to pay a portion of his taxes to the First Nation. “[Chief Thomas] basically said, ‘Craig, we’re happy that you’re on our lands. You’ve done good work for the nation. But it would be such a headache to have to administer that! Maybe someday, if you and a bunch of your friends can get together, we should have another conversation.’ ” 

That suggestion stuck with Candler, and in 2020 he founded the society, hired executive director Sarah Reid, and together they began work in earnest to create what would eventually become the South Island trust. 

A step towards redress, and a way to ‘live more responsibly’

For Chief Abraham Pelkey, SMOȻEŦET, of the SȾÁUTW̱ (Tsawout) First Nation, receiving voluntary rents is a small step towards redress. “My initial thought was: ‘What a proactive step to take towards reconciliation — with our relationship as First Peoples of the land and non-natives outside the nation.’ It’s a good step towards mending our relationship.”

SȾÁUTW̱ Nation will put its share of funds toward the $20,000 annual operating cost of its new longhouse. The 14,000-square-foot building opened its doors in October 2022, replacing a former longhouse that burned to the ground in 2009. That loss devastated the community and, 13 years later, Pelkey can’t overstate the importance of having a gathering space again. “This place is very significant to us. It’s the heart of our community. There’s a lot that happens in there. Our cultural values are expressed in there, and our cultural teachings. What better purpose than to hold up all of our people at the longhouse? There’s no better investment.” 

Some nations have a clear idea of what they’ll do with the funds, while others are still deciding. Pacheedaht First Nation plans to hold a community feast. And T’Souke Nation is considering putting the funds toward pulling up an invasive shrub, Scotch broom, as part of its ecological restoration work — or setting the money aside to contribute to future land acquisition. Sc’ianew (Beecher Bay) First Nation will support community youth to participate in the Tribal Canoe Journeys event this summer. Tribal Journeys brings together First Nations people from both sides of the Canada-U.S. border on the Pacific Coast to participate in a multi-day paddling trip and cultural celebration. This year’s event, hosted by puyaləpabš (Puyallup) Tribe in Washington state, will focus on youth. 

Chief Pelkey acknowledges this year’s contribution is not a lot of money, but is quick to point out that the fund has a symbolic purpose too. “In the true nature of helping and caring for one another, it’s not just the money. It’s what the money could do for us. It truly is about creating the relationship between our communities as a whole.”

Like Chief Pelkey, Oak Bay resident Simon Owen feels the payment of voluntary rents to First Nations is about more than the transfer of wealth. “It’s somewhat about money, because we live in an inequitable and material way. But the ethical work that the trust does, that’s more important to me.”

Owen is one of 142 residents who contributed to the South Island trust last year. (An additional eight contributions came from small businesses or events.) A non-Indigenous lawyer practicing Indigenous law, Owen is interested in disrupting the notion of exclusivity when it comes to land usage and ownership. 

“We’re living with the ramifications of all these explicitly racist and genocidal decisions,” he says. “If we’re serious about detoxifying that, land has to be part of that conversation.” As does the misconception of land ownership leading to exclusivity, he says. “I think this notion of scarcity is manufactured. That red herring [that] to acknowledge space for Indigenous governance and decision-making means game over for everything else.”

For Owen, contributing to the trust is an opportunity to “live more responsibly” alongside the First Peoples of his community. Not all of his friends share Owen’s views, however. “I got questions like, ‘How do you know the money is going to the right people?’ ” In Owen’s opinion, there’s a subtext to these questions that is deeply paternalistic. “We don’t ask our landlords; we just pay them the rent.”

Despite his enthusiasm for the initiative, Chief Pelkey worried about encountering similar attitudes. Some people become skeptics once money is involved, he explains. “That’s the apprehension that I had at the start. Because I don’t want people to perceive this as, ‘They’re just asking for handouts.’ This is not that at all.”

Candler is quick to address misconceptions. “There’s two places that people always go: one is, ‘It’s a tax.’ It’s not a tax because it’s voluntary. The other is, ‘It’s charity,’ but we also have to try to stay away from that. It’s not charity because we’re actually getting something in return,” he says, referring to the many benefits of land ownership.

Voluntary rents initiatives date back as far as the 1970s

Although the concept of voluntary rents is relatively new in Canada, similar initiatives have been operating successfully — here and elsewhere — for several decades. 

In Australia, a grassroots Pay the Rent program was initiated in the 1970s and has since gone through a number of iterations. Today, it exists as a national non-profit, operated by a collective of First Nations people who make decisions about how the money is allocated, and non-First Nations people who provide administrative and logistical support.

In the United States, there are several voluntary rent programs specific to individual Indigenous Nations or Native organizations. Real Rent Duwamish was started by the Coalition of Anti-Racist Whites in the Seattle area in 2009 as a way to provide resources to the Dxʷdəwʔabš (Duwamish) people, who ceded their lands to the U.S. government but were never given reserve lands or recognition. In northern California, a citizen-created honour tax provides resources and acknowledges the sovereignty of the Wiyot Nation. And in Minnesota, the Mni Sota Makoce Honor Tax was created by a Treaty Rights attorney in partnership with the Lower Sioux Indian Community.

Other arrangements in the U.S. include the Shuumi Land Tax, which supports a land trust on Ohlone territory in the San Francisco Bay area, and the Manna-hatta Fund, which collects funds for the American Indian Community House to provide health, social and cultural services for Native Americans living in New York City.

In Canada, the Nii’kinaaganaa Foundation’s Pay Your Rent program collects money from within Canada and around the world as “a way for those who live on the occupied land of Indigenous peoples to give back,” according to the foundation’s website. Nii’kinaaganaa distributes approximately $9,000 per month to Indigenous-led groups and individuals in support of everything from basic needs to community-strengthening projects. 

Some local governments are toying with the idea of voluntary contribution initiatives too. The City of Victoria launched a Reconciliation Contribution Fund in 2022 (a year before the South Island trust opened), and the B.C. municipalities of Saanich and Metchosin announced plans to consult with local First Nations about similar funds that same year.  

How reciprocity trusts work to connect First Nations and landowners

Establishing the first trust has been a lot of work for the team, and not without challenges. In the early days, the COVID-19 pandemic made it difficult to build relationships with First Nations and overcome some initial distrust. 

“The root of skepticism is so deep,” Reid says. “There has been so much taken from Indigenous people and communities for hundreds of years.” Taking time to nurture those relationships has proved paramount. In some cases, mistrust has persisted and she finds herself needing to consistently reaffirm that the initiative is not simply a way for non-Indigenous consultants to make money off of Indigenous peoples. 

In fact, the trust’s operating costs are currently heavily subsidized by Candler’s consulting firm, Reciprocity Research Inc. Reid — currently the society’s lone staff member — derives her salary from the company, while Candler and other members of the trust’s board of directors serve as volunteers. (Candler hopes the society will eventually be self-sustaining.)

The reciprocity trusts operate on a regionally specific basis. They bypass the involvement of municipal governments, establishing direct relationships with First Nations that share overlapping and adjacent homelands. According to Reid and Candler, there are a variety of reasons for this approach, including avoiding red tape and challenges related to existing tax structures, and, in the case of the South Island trust, reducing the complexity of navigating multiple municipalities, each with council priorities that shift from one year to the next. 

Like the Australian Pay the Rent program, the society takes care of administration, and governance of the funds is entirely in the hands of the Indigenous partners, or “beneficiaries.” Each nation may appoint a trustee for any shared decision-making.

Once a trust is created, individuals within its geographic boundaries can make annual contributions via the Reciprocity Trusts website. For residents, the suggested amount is 12 per cent of annual property taxes or one per cent of rent payments. Business owners have a wider array of options, including one per cent of profits, shares, time or products, or some combination thereof. At fiscal year-end, the accumulated funds — less 10 per cent for administration — are divided equally among participating First Nations. Citizen contributors get a decal for their home or business, and the nations can use their share of funds however they choose. 

The Indian Act, treaties and private property ownership: a legacy of injustice

Voluntary rent initiatives are premised on a couple of common understandings: the first is that Indigenous nations never lawfully surrendered the rights to their territories. The second is that settler communities continue to benefit — financially and otherwise — from appropriated lands at the cost of the original inhabitants. 

As Métis lawyer Bruce McIvor has written, “The Peace and Friendship Treaties of the 18th century were about establishing peaceful trading relations. In the mid-19th century, colonizers began to envision treaties as a tool for gaining control of Indigenous land whereas Indigenous people continued to understand them as sacred agreements establishing peaceful, mutually beneficial relationships. Treaty First Nations reject and condemn the argument that their treaties are ‘surrender’ documents.” 

The Indian Act explicitly states that First Nations and their members can never legally own their own reserve lands. At the same time, the creation of reserves enabled — and continues to enable — non-Indigenous Canadians to own land, profiting from its use and the ongoing appreciation of its monetary value.

In B.C., few historic land treaties were established, and those that were remain contentious. Eight of the 10 South Island trust nations are descendents of the signatories of the Douglas Treaties, signed between 1850 and 1854. Although problematic in many ways, the Douglas Treaties are generally considered by these nations as a commitment by the Crown to Indigenous people that they will have continued use of their lands and waters for the harvesting of traditional foods and other practices — commitments that have not been fully upheld, and in many cases blatantly ignored. 

In Candler’s understanding, payment of annual rents was an integral part of the Douglas Treaties’ commitment to sharing resources. “To us that’s very consistent with the spirit and intent of the Douglas Treaties … Lək̓ʷəŋən Elders, when they talked about the Douglas Treaties, it was this expectation of an annual payment; an annual relationship that would continue on over time, where these newcomers would be paying a form of rent.”

Reciprocity trusts could take shape across B.C., and in Ontario and Quebec 

This year, Candler and his team expect to launch a second reciprocity trust in partnership with nine First Nations in the Lower Mainland region of B.C. Talks are also underway with nations in the Kootenay region. Regional trusts in other provinces may happen soon, too; citizen groups in Ontario and Quebec have already reached out proactively to see if trusts are possible in their jurisdictions. 

As for the South Island trust, Candler and Reid hope to increase the number of contributors to 1,000 in 2024, an ambitious target from the previous year’s 150. 

For Reid, delivering the cheques was one of the most gratifying experiences she’s had since beginning this journey four years ago. “I wasn’t sure what to expect, but I was met with a lot of gratitude,” she explains. “One person told me, ‘On one hand, this isn’t a lot of money, but on the other, this is so much money! Our community has so many needs and this will go a long way.’ ”

And for Chief Pelkey, the trust’s work represents a new beginning. “This is the forming of such a great relationship between Indigenous people of the land and settlers — to rebuild that relationship,” he says. “We’re here and it’s in our laws as First Peoples to remember to be good to one another. And this is the way to do it.” He pauses and adds, “This is just one way.”

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