In 2008 Doug Harris penned Landing Native Fisheries, an exhaustive examination of the creation of reserves on the rivers, oceanfront and inlets of the North Shore and throughout British Columbia. “The imposition of Indian reserves was based on access to the fishery and then a taking away of access to the fishery,” said Harris, who studies and teaches property law at UBC.
Now, the friendly Vancouverite is curious about Kitsilano Indian Reserve No. 6 at the mouth of False Creek and is beginning research that will lead to another book. He wants to know what will happen to the misshapen tract of real estate as the Squamish develop and commercialize the land. In the reserve’s short history, Harris said, “There were important things that happened and shouldn’t have happened. A whole set of fundamental injustices drew me to these issues.”
His upcoming book will examine the history of this reserve: “Its appearance, its disappearance and its reappearance.”
He and I met in June at the Kitsilano reserve in the shadow of the Burrard Bridge. Here’s what he had to say:
On B.C.’s Indian reserve geography…
“British Columbia has a peculiar and unique Indian reserve geography. What happened here was a refusal by the colonial government and then the provincial government to recognize aboriginal title. Instead, there was an Indian reserve policy that was based on allocations of small parcels of land. The standard, at one point, was 10 acres a family. Ten acres sounds like quite a bit by today’s standards, but at the time, a non-Native settler, a white settler, could pre-empt 160 acres.
“To the extent that the colonial and federal governments justified the small reserves was that aboriginal people weren’t farmers; they were fishers and what they needed was secure access to the fishery. As a result, the geography that emerges in British Columbia is one of many small scattered reserves that were intended primarily to secure access to the fisheries. These were first and foremost fishing stations, points that secured access to salmon fisheries, halibut, olichan, dogfish, seal, the whole range of fish and sea mammals.
“The result in British Columbia is this unique reserve geography: 1,500 or more small postage stamps intended to secure access to fish that together amount to about just over 0.3 per cent of the land area of the entire province.
“And this reserve, Kitsilano Indian Reserve No. 6 is part of that Indian reserve geography.
On location, location, location…
“Unlike any other reserve, it’s absolutely squarely in the middle of the province’s largest city. The city has been largely able to ignore it for a long time. I don’t know how many hundreds of thousands of people live within a couple of kilometers of this reserve. How this reserve is going to be developed is going to matter to them and the challenge is that, through their votes, they have no voice.
“This is federal land, the city has no jurisdiction. So, the level of discussion that is going to need to take place is going to need to happen be between levels of government: municipal, federal, provincial and most importantly the Squamish, which is an equal player among other levels of government.
On why Vancouver’s municipal by-laws do not apply on reserve land…
“Reserve lands are federal lands, lands that are held by the federal government in trust for the Indian band. As such, it’s not subject to either provincial or municipal jurisdiction. So, Indian reserves are federal islands, federal jurisdictional islands where, within the context of a city, municipal bylaws have no effect.
On fences, gardens and John Locke…
“The question of property rights and how one establishes property rights has been a much contested and debated position. John Locke offered what became one of the most compelling justifications for property rights and his justification was that it starts with the proposition that God gave the world to humans in common and that each of us owns our body and therefore our labour. It is by mixing our labour with what was common that we turned what was common into private property. It’s that mixing of labour with the land that gives rise to that justification and recognition of private property.
“The next question is what sort of labour gives rise to property rights. For Locke, it was a very particular for of labour. It was labour that was recognizable in England as giving rise to properties such as gardens, it was fences, it was houses, it was the apparent ordinary ways in which Englishmen expressed a vision of ownership. That vision, that justification was transplanted to North America.
“Aboriginal people used the land very differently. If one looked for those particular records of property ownership—of fences, of gardens—well, in some places one found them but generally not. What counted as labour that gave rise to ownership in English society was not what counted as labour that gave rise to ownership in aboriginal society. The forms in which aboriginal people used and occupied the land were not recognized as giving rise to property interests. And as a result, the land could be understood as being common, as being available for enclosure when in fact it wasn’t.
On competing aboriginal land claims in Vancouver…
“Here we are right in the geographical heart of Coast Salish territory. The territory that spread up as far as Campbell River, down Victoria Island, Puget Sound and up the Fraser Valley. This is approximately the geographic centre, but the Coast Salish world was made up of many different peoples and two of those peoples are the Musqueam and the Squamish. This reserve exists almost exactly on the boundary between Squamish territory and Musqueam territory. Here it comes harder to be definite, but it seems very likely that this space was probably used extensively by both those communities.
“But when the reserve commissioners come through in the 1860s and 1870s, the people who were living here were Squamish. Now, whether they’d been here for a long time as the Squamish maintain or whether they were relatively recent arrivals who had come down from Howe Sound to work in the lumber mills and lumber camps that had been established in the 1860s on Burrard Inlet as the Musqueam have claim, it’s very hard to know. But in any event, it was the Squamish who were here when the reserve commissioners came through and, as a result, it’s to the Squamish to whom the land is allocated. It’s an allocation that the Musqueam still very much contest. It’s also a function of a particular colonial history and of a capacity of a particular colonial process of allocating Indian reserves to freeze the human use of land in a particular moment and to establish ownership, in this case for the Squamish.
“[Parts of the reserve] became CPR land but with the rider that if the CPR ever stopped using it as railway land, it would revert to Canada. So, when CPR put it on the market, Canada said, “No, this comes back to us,” and the Squamish said, “No this comes back to us,” and the Musqueam said, “No, no it should come back to us alone or us and the Squamish but not just the Squamish.”
On the power of the courts…
“This is some of the most valuable land in the province, in fact, it may well be the most valuable land in the province.
“The stakes are high and part of what’s interesting is that, again, this is another result of a set of processes in which that the Musqueam and the Squamish end up debating ownership over land in a Canadian court room. It’s a colonial legal forum but it’s also another source of power. Both communities turn to the courts in an effort to establish legal ownership, of course that’s not how it would have been resolved before Canada and British Columbia came into existence. It would have been resolved through a set of, well, of international legal protocols between Squamish and Musqueam.
On the Indian land question and the colonization of B.C. itself…
“In a society where one group of people is coming to settle on land that is already settled by another group of people, the first question and perhaps the question that underlies all other questions is really one of land. Who has access to, who has jurisdiction over what land?
“That is a question that arises with the fact of aboriginal settlement and the arrival of non-aboriginal settlement, Europeans and Asians. In that sense, the Indian land question is really THE land question because it’s at least as much a colonial land question as it is an Indian land question. It’s a question that faces both communities; it’s the first question.
