Vanishing Voices and Traditional Lands: Resisting Colonial Frameworks in Treaty-Making
Isaac P. Sahota, JD Candidate at UBC Allard School of Law
INTRODUCTION
The British Columbia Treaty Commission (“BCTC”) was established with the hope of facilitating and promoting meaningful processes for negotiating modern-day treaties. However, the effectiveness of the BCTC in truly fostering Indigenous empowerment remains a critical question. This paper will analyze the BCTC to determine whether its frameworks are genuinely inclusive and adaptive to Indigenous needs, or if they continue to perpetuate the settler-colonial structures that have long marginalized Indigenous communities.
I: THE BCTC PROCESS: A COLONIAL FRAMEWORK FOR NEGOTIATION
The BCTC is an independent organization established to facilitate and guide treaty negotiations between the governments of British Columbia (“BC”), Canada, and the Indigenous nations within the province.[1] Its primary goal is to resolve historical grievances by establishing modern treaties that address issues such as land rights, self-governance, resource management, and financial compensation. The process, which is conducted in multiple stages—from setting a negotiation framework to detailed issue-specific discussions and ultimately reaching a final agreement—relies heavily on Western legal language and established administrative structures.[2] Although this framework is designed to provide a clear legal pathway for reaching mutually acceptable solutions, it has also been critiqued for imposing a structure that may not always align with the traditional knowledge and cultural values of Indigenous communities.[3]
Among the modern treaties negotiated under the BCTC process, the Tsawwassen First Nation Final Agreement is one of the most notable.[4] This agreement delineates the relationship between the Tsawwassen First Nation—a coastal community—and the federal and provincial governments. It clearly defines the lands that belong to the Tsawwassen people and establishes guidelines for managing natural resources such as fisheries and wildlife. In addition to outlining economic development opportunities, the agreement includes provisions aimed at protecting the cultural heritage of the community and enhancing their self-governance, even though some areas, such as wildlife management, remain subject to government oversight.[5] Similarly, the Tla’amin Nation Final Agreement and the Maa-nulth First Nations Final Agreement represent other modern treaties that have emerged from this process.
Currently, 37 self-determining First Nations, representing 65 current or former Indian Act bands have participated in, or have concluded negotiations through, the BC treaty negotiations process.[6] This constitutes a low level of participation: only 65 out of 214 Indigenous Nations in BC have chosen to engage with the BCTC process.[7] The low engagement rate reflects the deep-seated broken trust of Indigenous peoples, which is rooted in the historical and ongoing impacts of colonial settlement and elimination by the settler government. Settler colonial projects, often framed as a public good, perpetuate the erasure and marginalization of Indigenous cultures. Patrick Wolfe, in “Settler Colonialism and the Elimination of the Native,” identifies mechanisms like land expropriation and assimilation as tools of structural genocide. [8] Wolfe emphasizes settler colonialism as a distinct social formation, with its specificity critical to any analysis.[9]
Understanding the damage of colonial power structures requires grasping the essence of colonialism, which positions Indigenous peoples as subordinate. Viewing it through the lens of structural genocide reveals ongoing “genocidal moments,” linking spatial displacement, mass killings, and forced cultural assimilation to the persistent impact of settler colonialism.[10] Professor Johnny Mack argues that the goal of colonialism—as an expression of imperialism—was to expand empires and exploit peoples and territories.[11] Similarly, as Robert Clifford explains, Indigenous laws and traditions are structurally subordinated through colonial frameworks.[12] This perspective highlights systemic erasure and suffering in Canada, making the disparities between Indigenous and non-Indigenous populations more comprehensible.
II: FROM SOVEREIGNTY TO COMMODIFICATION: COLONIAL CONTROL THROUGH TREATY LANGUAGE
A: VANISHING LANDS
A key issue with the BCTC is its reliance on Western legal language, which disadvantages Indigenous participants by misaligning with their cultural and legal conceptions. For Indigenous cultures, “land...encompasses culture, relationships, ecosystems, spirituality, and law,” including all living beings within these systems.[13] Bonita Lawrence and Enakshi Dua emphasize that separating Indigenous peoples from their land undermines sovereignty, as settler legal discourse erases kinship ties between Indigenous nations and their territories.[14] This colonial influence becomes evident in modern treaties, where terminology disconnects Indigenous communities from their holistic understanding of land.
For instance, Chapter 3 of the Tla’amin Nation Final Agreement describes land using the following language:[15]
On the Effective Date, Tla’amin Lands consist of the following:
a. 1,917 hectares, more or less, of Former Sliammon Indian Reserves subject to paragraph 24;
b. 6,405 hectares, more or less, of provincial Crown land identified for illustrative purposes in Part 1 of Appendix C-2 and described in Part 2 of Appendix C-2;
Similarly, Chapter 2 of the Maa-nulth First Nations Final Agreement says:[16]
On the Effective Date, Maa-nulth First Nation Lands consist of the following:
a. For Huu-ay-aht First Nations:
i. 1,077 hectares, more or less, of Former Indian Reserves, identified for illustrative purposes in Appendix B-1, Part 1 as “Former Indian Reserves of Huu-ay-aht First Nations”, and legally described in Appendix B-1, Part 1(a);
Western legal language categorizes land into parcels and numbered lots, assigning identification numbers in land registries. Terms like hectares, parcels, and lot numbers perpetuate colonial categories, reinforcing settler control and undermining fairness in negotiations. While the use of these terms may serve practical administrative purposes, they perpetuate a colonial framework that overlooks and diminishes Indigenous understandings of land as a living relative. Indigenous peoples do not perceive land in isolated segments but as a holistic and relational entity. The reliance on settler categorizations imposes an alien worldview that fundamentally misrepresents Indigenous relationships with land, reducing it to a commodity. This reductionist approach not only reinforces settler control but also marginalizes Indigenous ways of knowing and relating to their territories.
Professor Johnny Mack argues that BCTC negotiations are inequitable, invalidating Indigenous claims to 95% of their ancestral lands, with the remaining 5% governed by the provincial Land Title Act.[17] This process imposes settler norms, leaving little room for Indigenous expressions of land relationships and diminishing their rights. Taiaiake Alfredcritiques this process as failing, driven by compulsion rather than hope or good faith, effectively domesticating Indigenous nationhood.[18] By enforcing settler terms and legal structures, the system marginalizes Indigenous perspectives, laws, and land connections. The categorization of land in treaties fails to recognize Indigenous relationships with land.
B: VANISHING NON-HUMAN RELATIVES
The language in treaties negotiated through the BCTC reflects a colonial mindset, reducing natural entities to resources for exploitation and trade, disregarding their intrinsic and cultural value. This perpetuates the cycle of exploitation and the systematic elimination of non-human relatives. Chapters 9 and 10 of the Tsawwassen First Nation Final Agreement, addressing Fisheries and Wildlife, illustrate this dynamic. Chapter 9, titled “Fisheries,” grants the Tsawwassen people the right to harvest for “[d]omestic [p]urposes” within specific areas.[19] However, section 9 of this chapter allows BC to authorize uses of Crown land that may affect harvesting methods, times, and locations, provided such actions do not fully deny reasonable opportunities within designated areas.[20]
Two significant concerns arise from these policies. Firstly, the definition of fisheries within this legal framework mirrors the approach used for land, creating a system of spatial boundaries governed and controlled by the settler state. This rigid structure conflicts with Indigenous understandings of land and water stewardship. Secondly, by classifying fisheries as an entity under control, section 9 establishes that ultimate authority resides with the settler government, which only delegates limited power to Indigenous communities. This hierarchy places Indigenous self-governance under the oversight of settler authorities, raising questions about the authenticity of self-determination in these arrangements. This settler-centric approach to fisheries governance has significant implications, as it tends to overlook and undervalue Indigenous knowledge systems, cultural practices, and traditional ways of relating to aquatic ecosystems. Indigenous communities have historically maintained a symbiotic relationship with their natural environment, including fisheries, guided by deep ecological knowledge and cultural traditions. These relationships are holistic, viewing fish and aquatic life not merely as resources to be exploited but as their non-human relatives deserving respect and care.
In the Tsawwassen First Nation Final Agreement, Chapter 10 states that Tsawwassen First Nation will develop a proposed Wildlife Harvest Plan for the harvest of designated wildlife species to adequately manage and conserve the resource. The Tsawwassen First Nation will then submit this plan to the Minister for approval. It states:[21]
41. A proposed Wildlife Harvest Plan will include, as necessary, provisions in respect of:
a. documentation of harvesters authorized by Tsawwassen First Nation;
b. methods, timing and locations of harvesting by Tsawwassen First Nation;
c. the number, sex and age composition of the harvest of Designated Wildlife Species and other Wildlife species;
d. method of identifying harvested Wildlife;
e. method of monitoring and reporting harvested Wildlife;
f. process for in-season adjustment and amendment to the Wildlife Harvest Plan;
g. the term of the Wildlife Harvest Plan;
h. management concerns identified by the Minister; and
i. other matters agreed to by British Columbia and Tsawwassen First Nation.
42. Tsawwassen First Nation will submit the proposed Plan to the Minister for approval.
Chapter 10 exemplifies the commodification of non-human entities, a hallmark of settler colonialism’s exploitative worldview. This perspective treats every element of the natural world, including wildlife, as a commodity to be controlled and exploited—a deep-seated inclination to view the natural world through a lens of utility and governance, rather than one of kinship and coexistence. The requirement for a Wildlife Harvest Plan transforms wildlife from relatives and co-inhabitants of the land in Indigenous cosmologies into mere resources. By framing wildlife management in terms of harvesting plans and quotas, the agreement adopts a distinctly Western, utilitarian approach to nature, neglecting the relational ethos that many Indigenous peoples uphold. The authority over wildlife management remains vested in the settler-colonial government, as illustrated by section 42, which mandates that the Tsawwassen First Nation submit their proposed Wildlife Harvest Plan to the Minister for approval.
This process undermines Indigenous sovereignty and self-determination, as it places ultimate decision-making power in the hands of the settler state. Such a dynamic propagates the colonial legacy of control, casting Indigenous communities as subordinate managers rather than autonomous guardians of their territories and the non-human life within them. This demonstrates a profound disrespect for the complex, reciprocal relationships that Indigenous peoples maintain with their non-human relatives. Considering this analysis, a critical question emerges: is the BCTC truly advancing reconciliation through fair negotiations and the honourable implementation of modern-day treaties?
III: A FUTURE ROOTED IN INDIGENOUS LEGAL ORDERS
Professor Robert Clifford’s paper “W̱SÁNEĆ Legal Theory and the Fuel Spill at SELEKTEL (Goldstream River)” brings forward how W̱SÁNEĆ teachings about L̵EL,TOS (James Island) emphasize a reciprocal relationship where land, water, and non-human beings are kin, integral to community identity and survival.[22] In W̱SÁNEĆ beliefs, islands and salmon, named “EN ŚWOK̵E” or “our brothers and sisters,” were once human beings.[23] This understanding transcends the Western concept of resources, emphasizing deep ancestral connections and responsibilities.[24] The “Rising Tide” Haida Title Lands Agreement (“Haida Agreement”) serves as an example of how Indigenous worldviews can be integrated into negotiation frameworks, redefining the Crown-Indigenous relationship in a manner that reflects Indigenous jurisdiction rather than merely accommodating it.
On April 14, 2024, BC formalized an agreement with the Council of the Haida Nation, acknowledging the Haida Nation’s Aboriginal title to Haida Gwaii, a vast island territory spanning roughly 10,000 square kilometers along BC’s northern coastline.[25] Unlike previous agreements negotiated under the BCTC, the Haida Agreement embeds Haida legal traditions and governance structures at its core. It explicitly recognizes non-human relatives as living kin, an acknowledgment that reflects the Haida Nation’s identity, traditions and governance receptibilities.[26] The agreement states:
C. The foundation of Haida Law is respect…, confirmed through ceremonies, agreements, and relationships between people, the land and waters and all beings, establishing the collective responsibility… to maintain balance…, reciprocity…, and peaceful and sustained coexistence with Haida Gwaii.[27]
The Haida Agreement recognizes the harm caused by colonial occupation of these territories. It states that “[c]olonial occupation and the dispute over title has led to conflict, discord, and instability.”[28] It commits to advancing reconciliation in good faith based on the principles of recognition of Haida Aboriginal title, co-existence, and collaboration.[29] By embedding these principles, the Haida Agreement sets a precedent for a negotiation framework that prioritizes mutual respect, reparations, healing, renewal, and restoration of lands.[30] In a significant departure from the Crown’s previous approach that has subordinated Indigenous legal orders to provincial authority, the province has committed to aligning land and resource management decision with Haida Aboriginal title. This shift in the Crown-Indigenous relationship affirms that Indigenous governance is not merely consultative but authoritative within its own jurisdiction.
Although many matters within this agreement require further discussion[31]—particularly concerning third-party interests and the long-term implications of shared jurisdiction—the agreement represents a step toward reconciliation by embedding Indigenous worldviews and legal orders within a formal governance structure. Even the BCTC has acknowledged the significance of this agreement as a turning point in negotiations. In its statement on the Haida Agreement, the BCTC recognized that the negotiations framework has evolved to support “innovative and unique agreements” consistent with the United Nations Declaration on the Rights of Indigenous Peoples and new policy developments.[32] It stated that this agreement reinforces negotiations as “a strong pathway to advance reconciliation and recognition of Indigenous title, rights, and jurisdiction.”[33] Chief Commissioner Haldane of the BCTC acknowledged that while the BC Claims Task Force envisioned a process to recognize Indigenous title, it has been frequently obstructed by government mandates.[34] This recognition is significant given that the BCTC has been critiqued for its bureaucratic inefficiencies and imposition of Western legal constraints.
For Canada to move forward in a meaningful way, the lessons of the Haida Agreement must be embraced and become central to all negotiations. British Columbia has set a standard by pursuing an approach that transcends the limitations of bodies like the BCTC, demonstrating that the relationship between Indigenous peoples and the Crown is sui generis. This paradigm shift could pave the way for reconciliation by ensuring that treaties are not just legally binding documents, but also instruments that reflect and uphold the cultural and spiritual connections Indigenous peoples have with their lands and non-human relatives.
[1] BC Treaty Commission, “About Us” (last visited February 3, 2025), online: <bctreaty.ca/about-us/>.
[2] BC Treaty Commission, “Negotiations Process” (last visited February 3, 2025), online: <bctreaty.ca/negotiations/negotiation-process/>.
[3] Taiaiake Alfred, “Deconstructing the British Columbia Treaty Process” (2001) 3:1 Balayi: Culture, Law & Colonialism 1.
[4] Tsawwassen First Nation Final Agreement, 3 April 2009, online: <https://tsawwassenfirstnation.com/wp-content/uploads/2019/07/1_Tsawwassen_First_Nation_Final_Agreement.pdf> [Tsawwassen First Nation Final Agreement].
[5] Ibid at ch 4.
[6] Joanne K Connauton, Reimagining BC Modern Treaties: A Critical Discourse Analysis of the Tsawwassen, Maa-nulth,
and Tla’amin Final Agreements (MA Thesis, Royal Roads University, 2023) [unpublished] at 8.
[7]Ibid.
[8] Patrick Wolfe, “Settler Colonialism and the Elimination of the Native” (2006) 8:4 J Genocide Research 387 at 403.
[9] Ibid at 401.
[10] Ibid at 403.
[11] Johnny Camille Mack, Thickening Totems and Thinning Imperialism (LLM Thesis, University of Victoria Faculty of Law, 2009) [unpublished] at 2, 55, online (pdf): <https://dspace.library.uvic.ca/server/api/core/bitstreams/8b16eab6-ca9b-4eb0-8754-010f33723ad6/content>.
[12] Robert Clifford, “WSÁNEĆ Legal Theory and the Fuel Spill at SELEKTEL (Goldstream River)” (2016) 61:4 McGill LJ 755 at 786.
[13] Jeanette Armstrong, “Land & Rights” (2009), online (article): <https://indigenousfoundations.arts.ubc.ca/land__rights/>.
[14] Bonita Lawrence & Enakshi Dua, “Decolonizing Antiracism” (2005) 32:4 Social Justice 120.
[15] Tla’amin Final Agreement, 5 April 2016, at ch 3, s 1, online (pdf): <https://www.tlaaminnation.com/home-page/final-agreement/>.
[16] Maa-nulth First Nations Final Agreement, 1 April 2011, at ch 2, s 2.1.1, online (pdf): <https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/final_maanulth.pdf>.
[17] Johnny Mack, “Hoquotist: Reorienting through Storied Practise” in H Lessard, R Johnson & J Webber, eds, Storied Communities: Narratives of Contact and Arrival in Constituting Political Community (Vancouver: UBC Press, 2011) 287 at 291.
[18] Supra note 3 at 2.
[19] “Domestic purposes” means food, social or ceremonial purposes for the purposes of this agreement.
[20] Tsawwassen First Nation Final Agreement, supra note 4 at ch 9, s 9.
[21] Ibid at ch 10, ss 41-42.
[22] Clifford, supra note 1 at 767.
[23] Ibid at 773, 785.
[24] Ibid at 785.
[25] G̱aayhllx̱id G̱íihlagalgang “Rising Tide” Haida Title Lands Agreement, 14 April 2024, online: <https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/final_gaayhllxid_giihlagalgang_rising_tide_haida_title_lands_agreement.pdf>.
[26] Ibid at 1.
[27] Ibid.
[28] Ibid at 2.
[29] Ibid.
[30] Ibid.
[31] The Haida Agreement establishes a framework for ongoing negotiations between British Columbia and the Haida Nation to address critical governance and jurisdictional issues. Among these are jurisdiction over freshwater on Haida Gwaii, fiscal arrangements, provincial taxation matters, and other mutually agreed topics as per section 6.1 of this agreement. However, a key unresolved question is how overlapping Haida Nation, and provincial jurisdiction will be exercised, administered, and allocated. These include areas such as protected sites, fishing lodges, forestry, and “other existing interests” like tenures, permits, and licenses currently administered by the province.
[32] BC Treaty Commission, News Release, “Another Path to Reconciliation: Haida Nation and British Columbia Reach Historic Recognition of Title” (25 April 2024), online (pdf): <https://bctreaty.ca/wp-content/uploads/2024/04/HaidaNation_BC_News_Release-April_25_2024.pdf>.
[33] Ibid.
[34] Ibid.