Preface

One day in early 1986, I received a phone call from a British Columbia lawyer, Jack Woodward. Our discussion was cordial and, after customary pleasantries by way of introduction, yielded from him this combined commendation and question: “We understand you know something about the colonial history of Vancouver Island. You have been recommended by an anthropologist to undertake the legal history of Meares Island. You would leave no stone unturned in reporting on the details of the encounter between outsiders and the Native peoples. We understand that you have special knowledge of the British records. You would have about three years to complete your work. Would you be interested in preparing a dossier on the history of Meares Island in defence of the claim by Ahousaht and Clayoquot tribes?”

Our conversation moved at breakneck speed. I could sense the urgency of the matter. The forest of heavily treed Meares Island, rich with western red cedar and hemlock, seemed in danger of falling to the chainsaw. Mr. Woodward explained that he was acting on behalf of the Nuu-Chah-Nulth Tribal Council (NTC) in a recently filed case known as Moses Martin et al. v. H.M. the Queen et al.

Moses Martin, I soon learned, was chief councillor of the Clayoquot Nation, and the et al. were the claimant nations of the NTC—specifically the Clayoquot and Ahousaht, with the Kelsemaht peoples soon to join, all ancestral claimants to Meares Island and constituent members of the NTC. This was a comprehensive claim on the part of the NTC—that is, on behalf of its constituent member entities. As to the second et al., this turned out to be the world’s biggest logging company, MacMillan Bloedel (later Weyerhaeuser), with head offices on Georgia Street, Vancouver, as well as the Crown in right of the Province of British Columbia, and the Crown in right of the Government of Canada—altogether a formidable and well-heeled opposition.

This was heady stuff, a true David and Goliath scenario. I knew from years of teaching Canadian constitutional history that in the evolution of Native rights, the small tended to find itself pitted against the giant. Court rulings defined the new law, directed the course of justice and shaped the future. Did the long curve of history bend toward justice? Here was a test case.

In short order all the details were explained to me. At issue was Tree Farm Licence 22, held by MacMillan Bloedel; TFL 22 gave the lumber barons, or their contracted partners, the right to log on Meares Island. For several years the island had been the scene of protests, largely ineffective. Then came the crisis. On November 21, 1984, loggers arrived to begin cutting down trees. They were met by a group of Ahousaht and Clayoquot men and women, led by Moses Martin, who greeted the loggers, welcomed them to a Tribal Park, which he described as the Tla-o-qui-aht’s garden, and told them they were not to cut the trees. Instead of responding with force, MacMillan Bloedel brought court action against the protesters and the First Nations. In response, the NTC, assisted by the Friends of Clayoquot Sound and backed by the Western Canada Wilderness Committee and the Sierra Club of British Columbia, sought a court injunction to halt the further cutting of the trees of Meares Island. The legal challenge hinged on the matter of Aboriginal title. November 21, 1984, is thus a significant date in Meares Island’s modern history, for it began a process that would stop clear-cut logging. One might call it a threshold event.

In order to present the claimants’ case to its best advantage, the NTC had hired the legal firm Rosenberg, Rosenberg and Woodward, and Jack Woodward told me that he and his law partners, the cousins David and Paul Rosenberg, with offices in False Creek, Vancouver, were putting in place a crack team of “subject experts” to prepare documentation for the court when the matter came to trial. He explained who was who on the impressive list of experts, including a pair of anthropologists, an archaeologist, a genealogist, and a tree and soils science expert.³

Charmingly, Mr. Woodward went on to say that he had read my book Gunboat Frontier: British Maritime Authority and Northwest Coast Indians, 1846–1890, recently published by UBC Press, which he noted had been awarded the Lieutenant Governor’s Medal for Historical Writing. He said that my account and analysis of contact and conflict on Vancouver Island’s west coast had sparked his personal interest and, getting to the point, it had critical importance to the case. The NTC and its lawyers would have to demonstrate the living presence of history, the continuities of occupation and resource use over time. To do so, they needed someone who could read, understand and analyze historical records. They needed a historian, one who had researched and published in the field.

It was a long phone call. Mr. Woodward advanced the cause in legalistic detail. He said that the preparation of the case and the experts’ studies would take considerable time, necessary in the search for data relevant to the case. Authenticity was the requirement. He explained that the Hon. Thomas Berger, former BC New Democratic Party leader, a leading Native rights lawyer in his own right, would be an adviser and would lead the case arguments at the appropriate time. This further piqued my interest, as Berger had chaired the famed federal Mackenzie Valley Pipeline Inquiry and written the brave report Northern Frontier, Northern Homeland (1977), which recommended a ten-year moratorium on pipeline development. Certainly, Berger’s expected involvement raised the profile of the Meares Island case. The larger prospect of entering a new world, that of legal scholarship, presented its own attraction for me. And Woodward assured me I would be answerable to Rosenberg, Rosenberg and Woodward, and not to those bringing the case, allowing me some independence from the clients.

Jack Woodward asked me if I would undertake the project and write up the historical account that eventually would be filed at court. I had never had a lawyer define a research topic for me, nor had I ever charged a nickel for any historical work done. As a historian, I was unaccustomed to being among those acclaimed by anthropologists! But the matter duly offered was of a different order. Something very unusual—something of weighty moment—lay in the offing.

Fortunately, I had completed my most recent project and could turn to a new challenge. I took a deep breath and agreed. And I have never regretted my decision to accept the challenge, though of course I did not know what the final outcome would be. I am not fond of being on the losing side.

A few months later, in my first face-to-face meeting with Woodward and the Rosenbergs, I quickly gathered that these were some of the young lawyers whose passion for Native law made them a new breed in British Columbia and Canadian justice. They would go on to greatness. Jack Woodward was then preparing his classic reference work, Native Law (Toronto: Caswell, 1989 and many subsequent editions). He was a “float-plane lawyer,” operating from his seaside home on Saltspring Island. A graduate of the UBC School of Law, he was also an instructor of law at the University of Victoria. He liked to say that all lawyers learn the law at their clients’ expense, but that was an exaggeration for he had taken a very serious interest in the history of Canadian and British Columbia legal practices and rulings. He knew that the unique nature of the rights and powers of Native peoples in Canada required an understanding of their origins. Mr. Woodward held that these origins are truly indigenous, and as such were unlike Canadian legal practices.

His law partners brought complementary skills to the team. David Rosenberg’s later triumph was in a 2014 Supreme Court of Canada decision, which in effect awarded the Tsilhqot’ín title and rights to a substantial portion of their ancestral territories.⁴ That case rested on the shoulders of many others, not least Meares Island, which began as a case of Aboriginal title. Our discussions around the great table in their office reminded me of my own training in the Imperial History Seminar at the Institute of Historical Research, London University, where the wonderful cut and thrust of arguments posed in discussions of contentious points of history ensured that any frauds were exposed and arguments of a spurious nature destroyed.

But to return to the Meares Island case. A couple of long summers of research and writing awaited. The prospect appealed to me in another way, for “Indian law” in Canada was moving at a breakneck speed, with new case law expanding Native rights. Several years of teaching university history courses on Indigenous peoples in Canada (First Nations, Métis and Inuit, as specified in the Constitution Act, 1982) had given me a vague understanding of the complexities of land claim cases—for example, in Canada, provinces regulate lands, resources and forests while the federal government has other responsibilities under the Indian Act, including reserves (which are Crown lands), marine matters and fisheries. But in the Meares Island case, who knew what lay ahead?

The lawyers had hired some bright-spark student researchers to unearth documents, compile inventories of documents and get ready for an exchange of documents with the opposition, or the lawyers for the defence. This exchange, I was told, was called “disclosure.” And when the bulky files kept arriving for my examination and comment, I realized not only the thoroughness of those working on the legal team but also the immense capacity required to organize, collate and catalogue materials. Here is one reason why treaty claims processes take so very long even to get to discussion, let alone conclusion.

In due course the case came to trial. It reached a conclusion in the form of an injunction against logging on the island. The injunction was for five years and has since been renewed several times, giving the illusion of permanence. Meares Island’s trees were saved for the immediate future: at the time, that was the all-important item of business. Perhaps the trees were saved forever. A silence descended over the island: the searching cry of the chainsaw was not heard, nor the heavy thump of falling timber.

Truth to tell, the results of our findings were profound. The documentation breathed authenticity. As the case progressed, in and out of court, and the evidence kept piling up in favour of “our case,” the Province of British Columbia made final admission that Aboriginal title, so long denied, so long contested, would be acknowledged. This constituted a dramatic turnaround in provincial public policy, for not long before the cast-in-stone argument ran, basically, that “all the lands of British Columbia belong to all the people.” Thus, the Province of BC and the Government of Canada both recognized the principle for which the Aboriginal peoples had so long argued.

The achievement was of momentous proportions, with ongoing legacies. In Meares Island, Moses Martin et al. had defended by legal process their native interests against the encroaching power of the Crown in right of British Columbia, its agents and the licensed commercial interest, MacMillan Bloedel Ltd., which held the lease. The rising tide of outsiders’ exploitation had been stopped.

Though history could not be reversed, existing Aboriginal rights had recently been entrenched in the Constitution Act, 1982, section 35(1). This highly influential piece of Canadian constitutional legislation confirmed the common-law doctrine of Aboriginal rights and, along with its companion, the Canadian Charter of Rights and Freedoms (especially Section 25, which shields Aboriginal rights), was a significant breakthrough in the recognition of Native claims. In short, the constitutional adoptions of 1982 opened new chapters in the history of Aboriginal rights.

Likewise, Meares Island, coming at the same time other key cases were being decided by the courts (Bartleman [1984] and Sparrow [1987], for instance) was a watershed of modern law. Other cases—Calder (1973) and Delgamuukw (1997)—are of much higher profile, but Meares Island had lasting legacies. For one, it opened individual or specific claims of the constituent tribes of the Nuu-Chah-Nulth Tribal Council, the strong multi-band force behind the case. Other British Columbia tribes that were not members of the NTC also benefited from the decision—and from our hard work.

Even at this date, long after the events, I cannot forget the excitement of beginning this research, nor the satisfaction of carrying it to completion. All sorts of new information was uncovered, by myself and by the other subject experts. If we gather all the reports together, we can say that perhaps no specific island’s history had been so extensively covered. The records and reports are on file in the BC Law Courts in Vancouver, and many can be found elsewhere in law school libraries and corporate head offices. This epoch was a heady time in the history of BC and Canadian Aboriginal law, the most dramatic and influential in our national history. Confirmation of this can be found in commentaries and elucidations in UBC Law Reports, BC Studies and elsewhere.

I did not know this at the time of Jack Woodward’s phone call, only that we were on the edge of a great legal adventure. Law and constitutional rights drive history like no other force when a showdown is expected in court, and in my case, my disciplinary obligation was to get the facts right. The lawyers also requested my opinions as a historian. They told me not to be shy in making my own estimations of how time and tide had influenced the history of Meares Island. Thus, with my mind in a gigantic whirl of prospects, I began to research widely all that had happened on and near these 8,500 acres of land. I came up with some surprising details of history, coupled with some delightful insights into the historical record and the historian’s processes.