Sand spit-dune habitat on James Island’s north spit – critical habitat for several endangered species. (Photo courtesy the Nature Conservancy of Canada)

B.C. First Nation sues for the return of $54 million private island

Civil claim alleges province, feds failed to live up to terms of an 1852 treaty

A multi-million dollar private Island near Sidney on Vancouver Island is part of a civil court action launched Wednesday, January 24 by the Tsawout First Nation.

The Tsawout, through the DGW Law Corporation, are suing Canada and British Columbia for the return of the 330-hectare island, located directly across from the Tsawout reserve. The First Nation alleges James Island was part of the 1852 treaty with then-Governor James Douglas with the Saanich Tribe, guaranteeing their village sites would be protected from settlers.

In a media release, the Tsawout and its legal counsel, John Gailus, state rather than setting aside the island as reserve land, the government subdivided it and sold it. It would become a private hunting reserve “for British Columbia’s elite” and then an explosives manufacturing facility for CIL in 1913. The island is currently owned by J.I. Properties Inc, a company owned by Craig McCaw.

In this year’s B.C. property assessments, James Island is valued at more than $54 million.

It was listed in 2014 for sale at $75 million. Legal counsel for the Tsawout, John Gailus, says he’s not aware of the island being currently for sale.

“We have been asking the Crown to return James Island to us for decades and they have refused to take any steps to return it to us,” stated Tsawout Chief Harvey Underwood in a media release. “We call the island LEL’TOS and it is home to a large village, burial grounds as well as a number of sites where we fished, hunted and gathered food and medicinal plants. It was also an important defensive position for our ancestors who fought off raiders from the North.

“LEL’TOS is a stone’s throw away from our main village and has never been ceded or surrendered by us.”

Gailus said the 1852 Douglas Treaties, which included the Tsawout, stated that village sites and “enclosed lands” would be set aside, along with hunting and fishing rights.

“James Island was one of those village sites,” he explained, “and it was (taken) for agricultural use and CIL came to occupy it for years. There was even a town there.”

The Tsawout are arguing, Gailus continued, that James Island was one of those village sites named in the treaty. He added the First Nation had made this argument to the province and Ottawa in the past, but this is the first time they’ve gone to court to get it back.

Gailus said there could be precedent for the island’s return to the First Nation. He said the Conservative government established the Specific Claims Tribunal Act, which has seen a variety of decisions favour the country’s First Nations. Cases such as the Esquimalt and Songees nations being compensated for the B.C. Legislature grounds and the 2014 Tsilhquot’in decision, that upheld aboriginal title to 1,700 square kilometers of land west of Williams Lake.

Gailus said they’ve given notice to the province and federal government of the civil suit today (Jan. 25).

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