former domains of the Oregon and Washington Territories. 60 In London little was known regarding the aboriginal people of the region, and the question of extinguishing aboriginal title prior to occupation of the land was left to local Hudson’s Bay Company officials. However, the intent of the Colonial Office regarding this issue is revealed in a confidential draft of a parliamentary paper prepared in March 1849, for the consideration of cabinet, which stated that:
... in parting with the land of the island Her Majesty parts only with her own right therein, and that whatever measures she was bound to take in order to extinguish the Indian title are equally obligatory on the Company. 61
Recognition that such title did indeed exist was acknowledged in discussions concerning the creation of legislation to provide for the administration of justice in the new colony which referred to “that part of the Indian Territories called Vancouver’s Island.” 62
Chapter Two
The Entire Property of the White People Forever
It appears decreed that the white and red man are never to live in amity together, the history of the colonization and settlement of every portion of North America is but a continued chronicle of forcible occupations; it matters little whether the means employed be arms or negotiation, the poor savage is invariably in the end driven out of his patrimony, and the negotiation merely consists in the dictation of certain conditions by the more powerful, which the weaker has no choice but to accept; and which conditions are violated by the invader whenever it suits his convenience, or whenever he wishes a more extended boundary. Hitherto, in Vancouver Island the tribes who have principally been in intercourse with the white man, have found it for their interest to keep up that intercourse in amity for the purposes of trade, and the white adventurers have been so few in number, that they have not at all interfered with the ordinary pursuits of the natives. As the Colonial population increases … the red man will find his fisheries occupied, and his game, on which he depended for subsistence, killed by others; the fishers will probably cause the first difficulty, as all the tribes are singularly jealous of their fishing privileges, and guard their rights with the strictness of a manorial preserve. Collisions will then doubtless take place, and the Tscallum [Klallam] and the Cowitchin will be numbered with the bygone braves of the Oneida and Delaware.
—Captain Walter Colquhoun Grant,
first independent settler on Vancouver Island, 1849 1
According to British imperial policy, before settlement could take place on the lands “granted” to the Hudson’s Bay Company, the aboriginal title to those lands had to be extinguished. 2 This policy was established in North America by the Royal Proclamation of 1763, which also stipulated that aboriginal land could only be ceded or sold to the Crown. However, events far across the Pacific Ocean in New Zealand set the precedent for the alienation of aboriginal territories on Vancouver Island. The 1840 Treaty of Waitangi, which established British sovereignty, confirmed and guaranteed to “the Chiefs and tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties which they may collectively or individually possess … so long as it is their wish and desire to retain the same in their possession.” 3
After the 1840 Treaty of Waitangi, the British government advanced money to the New Zealand Company to purchase Maori land on behalf of the Crown, land which would then be sold at a profit to pakeha [European] settlers. The largest land sale in New Zealand took place on the South Island in June 1848, when 13,551,400 acres of Ngai Tahu lands were conveyed to the New Zealand Company for £2,000. 4 The rangatira (chiefs) initially rejected the offer but later agreed on the condition that they would be guaranteed their places of residence, their mahinga kai (places where food is produced or procured), and ample reserved land for their descendants. The rangatira insisted that these conditions be written into the deed of conveyance. The British, as was required by the Treaty of Waitangi, agreed. The original deed was written in Maori by Tracy Kemp, who negotiated the agreement on behalf of the New Zealand Company, and it was read aloud to the assembled signatories who affixed their marks and signatures to the document at Akaroa on June 12, 1848. Only later did the Ngai Tahu realize that the conditions would be ignored; that the actual amount of lands sold far exceeded what they had been led to believe; and that they would be denied access to traditional food gathering areas. 5
Although the new colony of Vancouver Island was administered by a governor appointed by the Colonial Office in London, control of land and settlement was entrusted to the Hudson’s Bay Company and it fell upon the company’s highest ranking official in the colony, James Douglas, Chief Factor of Fort Victoria, to negotiate with the aboriginal people for the sale of their lands.
Douglas was probably aware of the New Zealand land sales and understood the necessity of undertaking similar agreements in the newly established colony of Vancouver Island. 6 On September 3, 1849, Douglas wrote to the Secretary of the Hudson’s Bay Company, Archibald Barclay, that:
Some arrangement should be made as soon as possible with the native Tribes for the purchase of their lands … I would also strongly recommend, equally as a measure of justice, and from a regard to the future peace of the colony, that the Indian Fisheries, Village Sites and Fields, should be preserved for their benefit and fully secured to them by law. 7
Before Douglas’ letter reached London, Barclay wrote to him regarding the new colony and offered guidelines regarding the aboriginal people and their land according to the prevailing point of view of Britain’s colonial administrators:
With respect to the rights of the natives, you will have to confer with the chiefs of the tribes on that subject, and in your negotiations with them you are to consider the natives as the rightful possessors of such lands only as they are occupied by cultivation, or had houses built on, at the time when the Island came under the undivided sovereignty of Great Britain in 1846. All other land is to be regarded as waste, and applicable to the purposes of colonization … The Natives will be confirmed in the possession of their Lands as long as they occupy and cultivate them themselves but will not be allowed to sell or dispose of them to any private person, the right to the entire soil having been granted to the Company by the Crown. The right of fishing and hunting will be continued to them and when their lands are registered, and they conform to the same conditions with which other settlers are required to comply, they will enjoy the same rights and privileges. 8
Barclay’s instructions to Douglas were much influenced by the question of land alienation in New Zealand where British colonists managed to alienate Maori land despite the guarantees of property rights, including ownership and control of their economic resources, enshrined in the Treaty of Waitangi. Ignorant of aboriginal land tenure and the seasonal exploitation of food resources, colonist organizations lobbied for the alienation of land outside the perimeters of native settlements and agricultural plots which, under Pakeha (European) concepts of land tenure, were regarded as waste. Part of the problem was British acceptance of the social theory developed by Vattel, an eighteenth-century French legalist, who argued that cultivation alone gave the right to hold title to land. Hunting or food gathering were considered “idle” forms of existence. “Those who yet hold to the idle mode of life,” wrote Vattel, “usurp more land than they would require with honest labour, and cannot complain if other nations, more laborious and too much pent-up, come and occupy a portion of it.” 9
Barclay drew on the report of a select committee of the House of Commons which examined Maori title in this regard and concluded that the Maori had only “qualified Dominion” over their lands. Barclay quoted directly from the select committee’s report in his December 16 letter when he instructed Douglas that the “uncivilized inhabitants of any country 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.” 10
When the secretary’s letter arrived at Fort Victoria in the spring of 1850, Douglas lost no time in assembling the si’em of Songish, Clallam and Sooke families who occupied the lands surrounding