W̱SÁNEĆ communities on the Saanich peninsula of Vancouver Island have what few Indigenous communities in British Columbia have: treaty rights.
These treaty rights stem from two agreements made between their ancestors and Hudson’s Bay Company officials who were tasked with establishing the Colony of Vancouver Island. Indigenous leaders and colonial officials signed the “South Saanich Treaty” on February 7 and the “North Saanich Treaty” on February 11, 1852.
Here’s a helpful historical overview of the Vancouver Island Treaties from Sarah Petrescu in the Times Colonist.
With the upcoming 171st anniversary of the signing of the North Saanich Treaty, we remember Mandell Pinder’s work with the SȾÁ,UTW̱ (Tsawout) and W̱JOȽEȽP (Tsartlip) First Nations to defend their treaty rights in the courts.
R. v. Bartleman and R. v. Morris
When Louise Mandell represented Joseph Bartleman of W̱JOȽEȽP for killing a deer on lands covered by the South Saanich Treaty in July 1977, the treaties between the colony and Indigenous communities on the southeast coast of Vancouver Island had been long neglected by both the courts and the Crown. Twelve years earlier in 1965, the Supreme Court of Canada in Regina v. White and Bob had recognized a similar agreement between the ancestors of Snuneymuxw First Nation and the colony as a treaty within the meaning of the Indian Act.
In that earlier case, the court had to decide what the agreement was; in R. v. Bartleman, the court had to determine what the agreement included. Here, the BC Court of Appeal found that Mr. Bartleman’s treaty right to hunt extended over all lands within W̱SÁNEĆ territory and was not confined the geographical limits mentioned in the treaty’s text. That right, the court held, included hunting on lands not reserved for the W̱SÁNEĆ, provided the form of hunting did not interfere with the use and enjoyment of the land by the registered owner or occupier.
In another hunting case, Mandell defended W̱JOȽEȽP community members Ivan Morris and Carl Olsen against charges under British Columbia’s Wildlife Act for hunting deer at night with high-powered lights. Mandell and now-Justice Ardith Walkem argued the case through to the Supreme Court of Canada, where in 2006 a majority ruled that Morris and Olsen’s treaty right to hunt “as formerly” included the right to continue to practice night hunting in a safe manner, overriding the overly-broad restrictions of specific sections of the provincial legislation that unjustifiably infringed that right.
Saanichton Marina Ltd. v. Claxton
To borrow an analogy from legal historians Hamar Foster and Neil Vallance, while the two hunting cases used the treaties as a shield against prosecution, Mandell and Clo Ostrove’s work in Saanichton Marina Ltd. v. Claxton used the treaty as a sword to protect the crab fishery in Saanichton Bay from developers.
On November 25, 1985, Mandell got a phone call from legal counsel for Saanichton Marina Ltd., a company that had received a provincial permit to dredge a part of Saanichton Bay as a part of building and maintaining a commercial marina. “I hadn’t actually been retained, I don’t believe,” Mandell remembers, but having worked for SȾÁ,UTW̱ in the past, she knew what it was likely about.
SȾÁ,UTW̱ had battled the development from its first proposal in the early 1970s through all its stages and were watching over the bay that cold morning when the dredger arrived to start its work. The Times Colonist described what happened:
In subzero weather and driving snow, two Indians [Earl Claxton Jr. and Ignatius Pelkey] climbed aboard the dredging barge and hung on to cables above the clamshell bucket, preventing the machine from working for two hours.
“It was an amazingly brave act,” Mandell recalls. “I mean, I don’t remember exactly the temperature, but it was freezing cold. And Earl was quite prepared to be plunged into that ocean to save the crab fishery there.” So, when the company’s lawyer asked her to get Earl off the dredger, Mandell recalls, “I didn’t have instructions, but I just said ‘Of course, if you get the dredger out of the bay, then I am sure we can get Earl out of the dredger.’” The caller wasn’t prepared for that answer. “So there was dead silence, and I said ‘If you got a problem then let’s work it out in court. We can get an injunction. We don’t think you have a right to be there, there’s treaty rights in the Saanichton Bay.’”
Mandell and Ostrove along with a host of SȾÁ,UTW̱ community members ultimately convinced the court to uphold SȾÁ,UTW̱’s treaty right to enjoy “their fisheries as formerly.” Louise sees the Saanichton Marina case as a part of the larger story narrating the demise of the Crown’s extinguishment argument. That argument had two supporting pillars: the doctrine of discovery and the doctrine of terra nullius, related common law doctrines founded on beliefs of European superiority.
Successive court decisions from Calder in 1973 through Saanichton Marina to Delgamuukw and Tŝilhqot’in have largely laid to rest the extinguishment argument with the effect that, in Mandell’s words, Aboriginal title and treaty rights “are recognized and they’re given constitutional space to grow.”
But Saanichton Marina changed more than the legal landscape. The words and the example of SȾÁ,UTW̱ community members changed how Mandell practiced law. She recalled that, after a grueling day of cross-examination when some community witness “got a bit testy” from feeling disrespected by repeatedly being asked the same question, the late Philip Paul took everyone aside to help them refocus. Mandell recalled:
I remember it in my mind in different ways. He said “Whenever we talk about our aboriginal, or our treaty rights, we talk about it in love.” And it was so powerful for me, who lived in an adversarial system at that time, to realize that everything I said or did, in the context of litigation, I could do or say in the context of love. Here are people who lovingly named every bay and inlet and every mountain top, and every place of significance. And they’re not angry. Even though they’re defending, they’re expressing their love of the land when they defend.
And it completely changed my litigation style. I went from being a lawyer trained to have a position and defend your position and all of that. And I ended up becoming more of a lawyer around story-telling because you can forget a good argument, but you really can never forget a good story. And most stories are woven together with threads of love. And so I was able to, he shifted me. Just like Earl Sr. shifted me. Just like Earl Claxton Jr. shifted me, into becoming a better lawyer in the course of that case.
The conversation with Louise Mandell was recorded and transcribed by our own Gord Lyall, who spoke with Louise in December 2021 as a part of his doctoral dissertation.
The BC Archives have made digital images of the original treaties available for the public.
The W̱SÁNEĆ Leadership Council website has a great article “Remembering the Battle for Saanichton Bay,” which includes a fantastic photo of Tsawout community members climbing onto the dredger bucket.
Vancouver Island University hosted a conference in 2017 entitled “First Nations, Land, and James Douglas: Indigenous and Treaty Rights in the Colonies of Vancouver Island and British Columbia,1849-1864.” The conference’s website lists ways to access recorded oral histories of the treaties, academic publications, and unpublished dissertations and theses related to the Vancouver Island Treaties.
The conference’s presentations have been published by UBC Press as To Share, Not Surrender: Indigenous and Settler Visions of Treaty Making in the Colonies of Vancouver Island and British Columbia.
Vancouver Island University hosted another conference on the Vancouver Island Treaties in 2012 entitled “Fulfilling Treaty Promises and Living in Treaty Relationships.” You can watch presentations from all the panelists on the conference website, including talks by:
- Thomas Berger, OC, OBC, KC
- Dr. John Borrows
- Former National Chief of the Assembly of First Nations Shawn A-in-chut Atleo
- The Honourable Steven L. Point
- Kwulasultun, Douglas White III, KC
- Willie Littlechild, CM, AOE, MSC, KC
- Louise Mandell, KC
- Clo Ostrove
- The Honourable Justice Harry Slade, KC
- Madam Justice Ardith Walkem
- The Honourable Jody Wilson-Raybould