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 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.”
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.”
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.”
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.
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.
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.
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