Unceded and Unsettled

What if the land you live on was never legally given to Canada?  
What if the parks, the trails, the streets and the schools were all built on land that was never surrendered?  
What if public land… isn’t?

In this episode, we look at a series of short, quiet agreements signed on Vancouver Island in the early 1850s—treaties most Canadians have never heard of, but that still shape the legal and political foundation of British Columbia.

We’ll look at what James Douglas promised—and what the Crown actually claimed.  
We’ll unpack what "unceded" really means.  
And we’ll explore why Land Back isn’t a radical idea

Because if no treaty was signed…  
If no land was surrendered…  
Then who really owns the land?

You’re listening to Reconsidering Canada

I’m your host, Chris Bolster.

This is the beginning of a journey. Over the next few episodes, we’re going to dig into one of the most unsettled questions in this country:

Who owns the land?

Not just symbolically—but legally, politically, and morally.

We’ll look at court cases, colonial policies, and the voices of Indigenous nations that have never stopped asserting their title.

Because “Land Back” isn’t just a slogan. It’s a story—rooted in law, history, and the land beneath our feet.

To answer the question of who the legal owner of the land is, we need to go back. Not just to the 1850s, when James Douglas, the British governor of the Vancouver Island colony, was signing treaties there—but to 1763, and a Royal Proclamation that was supposed to set the rules.

The Seven Years’ War between Britain and France ended in 1763 with the Treaty of Paris. Britain claimed most of New France, redrawing the map of North America in its favour.

That same year, King George III issued the Royal Proclamation of 1763. It wasn’t just about order—it was about control. Britain wanted to keep settlers from the Thirteen Colonies from spilling west and stirring up conflict. So the Crown laid down the law: Indigenous nations had rights to their land. And only the Crown could make deals to take it.

On paper, it sounded like protection. In reality, it was about monopoly. The Crown claimed exclusive authority to negotiate treaties—treaties that were rushed, one-sided, and often misunderstood.

And yet, the Proclamation still matters. Because even now, Canadian law recognizes it as proof that Indigenous title isn’t something Canada granted—it’s something it tried to override.

As Musqueam lawyer and author Jim Reynolds puts it: “Aboriginal title is not a gift from the Crown. It is a legal interest in land that pre-existed the arrival of Europeans and continues today.”

Let’s zoom in on Vancouver Island.  
When James Douglas arrived in the early 1850s, he wasn’t just the governor of a fledgling colony. He was also a chief factor for the Hudson’s Bay Company—a company that had just been handed control of the island by the British Crown.

But to make good on that deal, the Company needed more than fur trading posts. They needed settlers. Farmland. Coal mines. Timber exports. They needed land.

And here’s the thing: under British law, they couldn’t just take it.

So Douglas set out to sign treaties.  
He offered small payments. Blankets. Tools.  
He assured Indigenous leaders they could keep hunting and fishing. That the land would be shared.

But the written documents said something very different.  
They said the land was surrendered. Permanently.

That’s what the Hudson’s Bay Company wanted: a legal foundation to turn Indigenous territory into Crown land—ready for settlement, extraction, and profit.

For the Crown, treaties weren’t about justice or understanding.  
They were about control.

Even if the people signing didn’t read English.  
Even if they didn’t agree to what was written.  
Even if the land was never truly for sale.

These weren’t real agreements in any meaningful sense.  
They were the illusion of consent—a carefully staged process designed to look legal and mutual.  
Indigenous leaders believed they were agreeing to share the land.  
The Crown used that appearance to claim it outright.

That’s what I mean by empty promises.  
Not that nothing was said or signed—but that the words were hollow, the consent was unclear, and the outcome was already decided.

And here’s a word you’ve probably heard before—especially at public events or land acknowledgments:

Unceded.

But what does that actually mean?

In simple terms, unceded means that the land was never given up, never surrendered, and never sold or traded away—not through war, not through treaty, not through negotiation.

It means that no agreement was made.  
And yet the land was still taken.  
Governed.  
Extracted from.  
Settled.

That’s what makes most of British Columbia so legally and politically distinct.

After Douglas, the colonial government—and later, the province of BC—refused to negotiate any more treaties for over a century.  
That treaty vacuum persisted until the 1990s, when a new process finally began.  
But by then, most of the land had already been claimed, developed, and settled—without consent.

And the federal government let them.

So the rest of BC?  
No treaty. No surrender.  
Still unceded.

And that’s not a symbolic label.  
It’s a legal one.

Because when land is unceded, the Crown doesn’t have clear title.  
And that raises the question at the heart of this episode:

Who really owns the land?

Across much of Canada, treaties were used as the legal foundation for settlement.  
From the Great Lakes to the Prairies to the North, the Crown signed dozens of numbered treaties—agreements made between Indigenous nations and the British, and later Canadian, governments.

Now, these weren’t perfect agreements.  
Many were made under pressure.  
Some were misunderstood.  
Others were flat-out violated.

But they still existed.  
They created a legal record—however flawed—of the Crown recognizing that Indigenous peoples held title to their lands, and that that title needed to be formally relinquished before settlement could proceed.

That idea didn’t come from nowhere.

It came from the Royal Proclamation of 1763—a British law that said Indigenous land couldn’t be taken without consent, and that only the Crown could negotiate land deals.

In other words: even by colonial standards, you needed a treaty.

Except in British Columbia.

Outside of those 14 short Douglas Treaties on Vancouver Island, the province simply… skipped the process.

The colonial government refused to recognize Indigenous title.  
And when BC joined Confederation in 1871, Canada let them carry on—governing and settling unceded land as if treaties had already been signed.

They hadn’t.

The result?

Most of BC remains legally unresolved.
No treaty.  
No land surrender.  
No extinguishment of Indigenous title.

And that’s not a radical claim.  
That’s the legal situation recognized by the courts.

When we say this land is unceded, we’re not just talking about a gap in paperwork.  
We’re talking about the Crown exercising sovereignty without consent.

And that has consequences—ones that ripple through everything from logging permits to pipelines to the foundations of Canadian law.

Now, if you're wondering: What exactly is Aboriginal title? We’ll get there.  
But first, let’s stick with this question: What happens when treaties aren’t signed at all?

Because that’s the situation across most of British Columbia.

The Douglas Treaties weren’t just a colonial footnote.  
They set the stage for generations of legal conflict—because the land they claimed to secure wasn’t really given up.

And that Royal Proclamation of 1763? It never went away.  
It became part of Canadian constitutional law.

So when Indigenous nations went to court—arguing that their land had never been lawfully surrendered—they weren’t appealing to some radical idea.  
They were pointing to British law. To Canadian law.

In the 1970s, the Nisga’a Nation brought their case to the Supreme Court in _Calder v. British Columbia_. And while the Court was split on technical grounds, a majority of justices recognized something huge:

That Aboriginal title existed in Canadian law—independently of treaties, and it had never been extinguished.

That decision cracked the legal foundation of Canada’s land claims wide open.  
It led to modern treaties. And eventually, cases like Delgamuukw and Tsilhqot’in, which confirmed that Indigenous title is inherent, collective, and land-based.

And British Columbia?

Unlike much of Canada, most of BC was never covered by historical treaties.  
That means large parts of the province are still—legally—unceded land.

Which brings us back to that unsettling question:  
Who owns the land?

Because if Indigenous title was never extinguished…  
If the Douglas Treaties were misrepresented or misunderstood…  
If the Crown’s claim to sovereignty was based on assumption, not consent…

Then “Land Back” isn’t fringe or radical.  
It’s a legal and moral reckoning that’s long overdue.

  Act 2: What Is Aboriginal Title?

Let’s pause here.  
Because before we go further, we need to be clear on something:

What is Aboriginal title?

It’s a legal term.  
But it’s not just legal.

Aboriginal title is the recognition that Indigenous peoples have an inherent right to the land—not because Canada granted it, but because they were here before Canada. Because they governed, occupied, and cared for these lands under their own laws, long before a single British flag was planted.

In Canadian law, Aboriginal title means Indigenous peoples hold a collective, land-based right to their traditional territories.

That right doesn’t disappear because settlers showed up.  
It doesn’t depend on a treaty.  
It exists independently.

Whether or not the Crown recognizes it.  
Whether or not settlers are comfortable with it.

It’s not private property. Not something one person can own or sell. It’s a relationship—between a people and the land that sustains them. Passed through generations, embedded in law, language, and ceremony.

And that’s the legal ground we’re standing on.

Because when courts are asked to rule on land disputes, they’re not just evaluating property lines. They’re confronting a deeper truth:

That Canada’s claim to land is built on an assumption of sovereignty—  
not a demonstration of it.  
Not a mutual agreement.  
Just an assumption.

And that assumption is what Aboriginal title calls into question.

So wait—if the Royal Proclamation said you couldn’t just take land…  
How did British Columbia do exactly that?

The answer is simple. And unsettling.

They ignored it.

After Douglas retired, BC walked away from treaty-making entirely.  
In his place came men like Joseph Trutch, who denied Indigenous land rights outright. He slashed reserve sizes, dismissed Indigenous law, and saw no need to negotiate.

The federal government? Supposed to take over “Indian affairs” after BC joined Confederation in 1871. Instead, they let the province carry on.

Their point man?  
Israel Powell, Canada’s first Superintendent of Indian Affairs in BC.

He believed Indigenous people needed to be “civilized” before being treated fairly.  
Which meant—conveniently—they could be ignored until they stopped being Indigenous.

He built schools and shrank reserves at the same time.  
And he once argued the “Indian system” was working perfectly—because, in his view, there wasn’t enough resistance to warrant negotiation.

Powell didn’t just erase land rights—he used the absence of violence as proof that colonization was working.

Act 3: BC’s Treaty Gap and the Legal Vacuum

In most of Canada, treaties were signed—problematic, unjust ones—but treaties nonetheless.

In British Columbia, most of the province was never treated for.

After Douglas, treaty-making stopped. London told him not to spend money on it. Trutch ignored land rights. The province pressed on with railways, logging, mining, and settlement.

By 1871, BC had set a pattern:  

Expand first. Justify later.

For over a century, governments issued logging permits, land grants, and property titles—on land they had no legal claim to.

Most settlers never questioned it. No treaty? No problem. No confrontation? No issue. The land seemed empty. Available. Free.

But it wasn’t.

And it still isn’t.

The refusal to negotiate isn’t just a historical oversight. It’s a live issue.  
Because if no treaty was signed…  
If no title was extinguished…  
Then what claim does BC—or Canada—really have?

And what does that mean for every permit, law, or policy built on that claim?

This next part is harder for me.

Because I live in British Columbia, specifically in Powell River.  
A town named after Israel Powell.

Most people here don’t know who he was.  
They don’t know he blocked treaties, shrank reserves, and pushed the residential school system in BC.

His name is everywhere—on our river, our town, our streets.  
But his legacy? It’s invisible.

That’s how settler colonialism works: not just through force, but through forgetting. Through renaming. Through the stories we tell—and don’t tell.

But memory is resistance.

And remembering changes the question:  
Not just: Who was Israel Powell?  
But: Who gets to name this land?

Today, that question is finally being asked.

The Tla’amin Nation has called on Powell River to change its name.  
Not as erasure. But as truth-telling.

It’s a conversation we’ll return to in Season 2—because how we remember the past says everything about who we are now.

Some say it’s too much, too fast.  
But when you know who Israel Powell was...  
You realize the only thing more unsettling than changing the name…

...is leaving it.

Act 4: “Public” Land Isn’t Neutral

So what does it mean to hike Crown land trails, camp in provincial parks, build homes and towns—on land the Crown doesn’t legally own?

Because when we say “public land”…  
We rarely ask: Whose public?

In BC, so-called public land is mostly unceded Indigenous territory.

Every timber sale, mining permit, or pipeline route is built on a legal fiction.

And this is where Land Back comes in—not as a threat, but as a clarifying question:

If the land was never lawfully surrendered…  
Then what kind of relationship do we have with it?

Land Back isn’t about guilt.  
It’s not about settlers packing up and leaving.  
It’s about returning jurisdiction.  
Recognizing Indigenous law and governance.

Challenging the assumption that Canada owns everything just because it says so.

Because when the state governs land it doesn’t own…  
When settlers live on unceded land…

We’re not just inheriting property.  
We’re inheriting a problem.

Act 5: Conclusion – What We Refuse to Recognize

So here we are.

On land that was never surrendered.  
Living under laws written without consent.  
Naming towns after the men who denied Indigenous title existed at all.

And we’re told this is normal.  
That it’s legal.  
That it’s ours.

But what if it isn’t?

The courts have started to ask that question.  
So have Indigenous nations—over and over, across generations.

And the rest of us?

We’re still catching up.

Because the longer we cling to the fiction that Canada owns what it took,  
the harder it becomes to imagine anything else.

But Land Back isn’t just about land.  
It’s about truth.  
It’s about law.  
It’s about finally reconciling with a question this country has tried to ignore:

Who owns the land?

As Kukpi7 Judy Wilson of the Neskonlith Nation puts it:

“You can’t reconcile what you refuse to recognize.”

Next time, we head to the Nass Valley, where the Nisga’a Nation brought that very question to court.

It’s the case that cracked open the legal foundation of this country.  
And it’s where our story continues.