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South Island Aboriginal and First Nations issues and discussion


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#1 Bingo

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Posted 16 November 2009 - 07:51 PM

...over an 1851 treaty,signed with James Douglas. The land in question is 96 hectares around their traditional Cadboro Bay village site.

In 2006, the Esquimalt and Songhees First Nations accepted a settlement of $31.5 million after filing a lawsuit claiming a chunk of downtown Victoria, including the BC. legislature lands.

If this lawsuit is successful, it could set a precedent , said lawyer Rory Morahan.

http://www.nationalp...html?id=2229916

It was just a few days ago that some bones were discovered in the area, which may have prompted this claim. I wonder where else in the inner harbour there could be an issue?

#2 G-Man

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Posted 16 November 2009 - 08:45 PM

Caddy Bay isn't in the inner harbour. But I think it is only fair I wouldn't someguy digging up my ancestors.

#3 Sparky

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Posted 17 November 2009 - 12:03 AM

I am waiting to hear what Bernard's comments are on this topic. Is Rory Morahan representing the band? Is that in compliance with the law? This thread will be 10 pages by the weekend, especially if it keeps raining.

#4 Bingo

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Posted 17 November 2009 - 07:01 AM

I am waiting to hear what Bernard's comments are on this topic. Is Rory Morahan representing the band? Is that in compliance with the law? This thread will be 10 pages by the weekend, especially if it keeps raining.

Rory Morahan may still be a member of the yacht club that is situated on the lands in question.

#5 Kikadee

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Posted 17 November 2009 - 09:12 AM

It was just a few days ago that some bones were discovered in the area, which may have prompted this claim. I wonder where else in the inner harbour there could be an issue?


I think the Songhees were taking steps to initiate this claim prior to the bones being uncovered, and that the timing is coincidental. It's common knowledge that almost the entire shoreline--from Cordova Bay to the Gorge--is a mass of archaeological sites, particularly along Beach Drive.

I think the article indicated the presence of 9 Songhees villages when Douglas treated with them in 1851. I think there were villages at McNeill Bay, Oak Bay, Discovery Island, and Shoal Bay. Those settlements, and the affiliated resource-processing that would have taken place at these spots, and elsewhere along the coast, left a substantial footprint dating back thousands of years. The Cadboro Bay village alone features archaeological evidence of house sites, hundreds of burials and cairns, shell middens, and even an "earthworks," which signifies a pretty big construction, probably built as a defense against Lekwiltok and Cowichan raids.

Ethnographers such as Franz Boas, Charles Hill-Tout, Wilson Duff and Wayne Suttles all agree that Cadboro Bay supported a sizable winter village at contact. After Fort Victoria was constructed (1843), most of the families residing there moved to the Songhees village at the foot of the Johnson Street bridge, to be where the action was. In the early 1900s, the City of Victoria viewed their presence as a huge impediment to development, and made arrangements to buy the land and move the Songhees to their current reserve out in Esquimalt.

I think the government should just settle, acknowledge its mistake, and compensate the Songhees for never having surveyed and reserved Cadboro Bay for them, as promised in the treaty. That would be the right thing to do. A 150-year-old contract was broken.

#6 VicHockeyFan

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Posted 17 November 2009 - 09:47 AM

What did the Songhees do with the $30M they got for the Legislature grounds?

Did they put it to a specific project?

#7 Bernard

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Posted 17 November 2009 - 11:03 AM

The Douglas Treaties of the 1850s made it clear that the First Nations retain ownership of all of their villages and fields. It is very clear and the Crown has been in breach with this aspect of the Treaties for a very long time.

One reason this sort of issue was not raised years ago is that the Federal Crown refused to recognize the Douglas Treaties as being Treaties. It is only once that issue was resolved that the claims for village sites that were alienated could be started. For the Crown to have taken possession of the village site at Cadboro Bay, it would have to have obtained consent of the First Nation. I know there is no such documentation of any such consent.

The federal lawyers will likely argue:
1) The Douglas Treaties were not Treaties
2) The statute of limitations has run out on this (it does not apply to aboriginal title and rights issues, though the feds always try to argue it)
3) They will say there is no evidence that the people were living there in 1851
4) If there is evidence people were living there, they were not there year round and therefore it was not a village
5) They will also argue that the the Treaty was only intended to protect the main village.
6) They will also argue that you can not be 100% certain which First Nation was living at that location. They will say the litigants are not the descendants of the people that might have lived there if people were living there.
7) If there was right a to a village site, then that right was for only a very, very small piece of land.

etc..... along those lines.

One interesting clause of the Treaty is that the Songhees retain rights to hunt on any lands that are not built on or cultivated. This would include a right to hunt deer in places like Mount Doug......

#8 Kikadee

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Posted 17 November 2009 - 01:38 PM

The federal lawyers will likely argue: 3) They will say there is no evidence that the people were living there in 1851......


I think the benchmark year is 1846, when British sovereignty officially extended to these parts as a result of having signed the Oregon Boundary Treaty with the United States. First Nations have to prove where they were living (title) and what they were doing (rights) at that moment in time.

This is why a lot of the Lower Mainland-Southern Vancouver Island bands (whose lands were the earliest to be pre-empted by the HBC and other settlers, and whose traditional practices had already been altered by contact before 1846 rolled around) are at something of a disadvantage in claims for title. Compare them with interior groups such as the Tsilhqot'in (Chilcotin), for example, who have a very strong claim to title, in part because whites didn't start pre-empting until after the Chilcotin War of 1864.

4) If there is evidence people were living there, they were not there year round and therefore it was not a village


The Feds and the Province always argue this. It's like arguing that Grandma and Grandpa Smith don't own their home in Oak Bay because they spend the winters down in Florida.

Coastal First Nations had a seasonal round, which took them from their primary villages (where they spent the winter months as a group) to resource-gathering places like hunting camps, fishing spots, berry patches, in spring, summer, fall. To say that the entire tribe was not living at its winter village year-round is specious; it was home base; people returned there every once in a while during the year, elders might remain behind, certainly no other group was going to show up in mid-April and decide to live there because they knew it belonged to someone else, even though the residents were absent at the time.

6) They will also argue that you can not be 100% certain which First Nation was living at that location. They will say the litigants are not the descendants of the people that might have lived there if people were living there.


That's why archaeological evidence is interesting, but not often useful to an aboriginal title or rights claim. It came in extremely handy for the plaintiffs in the Xeni Gwet'in case (in terms of dating the pit-houses where a priest and an HBC official visited them in the early 1800s) but just because there are bones at Cadboro Bay, you can't say they are bones belonging to Songhees ancestors. High probability, sure, but nothing to bet on.

7) If there was right a to a village site, then that right was for only a very, very small piece of land.



Bernard, wasn't this notion established by the ruling in R. v. Bernard and Marshall? I mean, the idea that if there was title, then it would be a "postage-stamp" in size, quite literally the borders of the village and that's it? I'm sure the Feds and the Province jumped for joy when they saw that one.

But again, harkening back to the Xeni Gwet'in judgement, Justice Vickers seems to be challenging that view; in his obiter dicta [non-binding decision] on the title issue, he was prepared to grant the Xeni Gwet'in title to vast tracts of hunting areas, resource sites, and land on either side of the PATHS that joined them all together. The fact that a trail or what-have-you was used only seasonally was no impediment to ownership as far as the judge was concerned.

I can't wait to see the results of the appeal in that case, lemme tell ya!

#9 Kikadee

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Posted 17 November 2009 - 01:45 PM

The federal lawyers will likely argue:
2) The statute of limitations has run out on this (it does not apply to aboriginal title and rights issues, though the feds always try to argue it)


I forgot to comment on the extent to which this particular argument (laches) gets my hackles up, especially in light of what Bernard pointed out in another thread: the First Nations were not allowed to hire lawyers or to initiate land claims for most of the 1900s!

#10 Bernard

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Posted 17 November 2009 - 04:31 PM

I find most the arguments the fed lawyers make odious, so do not ever think I agree with any of them.

A big difference in this case is that it is about Treaty rights and not aboriginal title and rights. This means the 1851 is the relevant date.

Meanwhile as to the 1846 date, the one in which the British Crown claimed sovereignty, there is an important issue to be decided on this. If the Crown did not exercise any authority, how it can it have any sovereign right to any of the land? In the absence of any agent of the Crown showing any sort of control over the land, there is no basis for the 1846 sovereignty claim. In a number of parts of the Interior there is clear documentation that Europeans operated under the jurisdiction of First Nations after the 1846 date.

I find the 1846 date absurd because the Crown claimed ownership to land and places it knew nothing about. How can you claim to own something if you do not what exists there or where the place is in any sort of detailed manner? In northern BC there are areas where there was no Crown jurisdiction till the 1880s, to claim that these lands were part of BC or Canada is ludicrous.

I have seen the argument made that made that a location was a fishing station or a hunting camp and therefore not a village.

The "postage stamp" position of aboriginal title goes back for ages and is in direct conflict with the idea of the Crown being able to claim sovereignty over large tracts of land it has never seen or been on. I heard it out of the mouths of Federal Negotiators that IF there was aboriginal title, it would only be a very small area.

The Baker Lake case back in the 1970s set the thinking towards small pieces of land. As of now, the only case that has said there is Aboriginal Title is Xeni Gwichin - though the judge did not lay out the location, but his ruling has set the stage for First Nations being able to claim aboriginal title to lands that they had clear jurisdiction to. This effectively means large tracts of land that are the best land out there.

In general I find the Federal government approach to aboriginal issues to be highly confrontational when they are in court and to be condescending and intransigent in all other situations. The limitations argument is one the feds make over and over again even though it has always lost.

The Federal Specific Claims process is very costly and takes 13 years to get your claim into discussion. The Specific Claims process was created to deal with claims from First Nations that their reserve lands, and related rights, were infringed by the Crown. The Federal government will not consider your claim unless you are prepared to fight it out in court.

Meanwhile the Federal Government refuses to talk about any aboriginal title or rights issues anywhere in Canada. They act as if they do not exist even though the Constitution specifically mentions them.

For you property rights activists, one up of Section 35 of the Canadian Constitution is that First Nation governments have some of the few property rights in Canada that are protected from infringement without consent.

I should stop now because I could rant on and on for ages about this.

#11 Sparky

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Posted 17 November 2009 - 06:58 PM

Wow!!! The amount of knowledge that you two have on this topic is unreal. I wished that I had something of value to add. I have some very close first nations friends, and I am always struggling to understand what we as a country have done to them.

I have a larger struggle understanding what we as a nation are doing at present. I must admit that I am somewhat ashamed as to how we, as a respected nation, have lived up to our contractual obligations..........never mind our moral obligations.

Bless you for your timely exchange.

#12 Sparky

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Posted 17 November 2009 - 07:03 PM

Rory Morahan may still be a member of the yacht club that is situated on the lands in question.


I will get you that answer tomorrow from the inside. If the answer is yes that would be interesting.

#13 Bingo

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Posted 18 November 2009 - 07:28 AM

I wonder what might be found at the Johnson Street Bridge site, when they start digging around?

#14 Bernard

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Posted 18 November 2009 - 09:52 AM

I wonder what might be found at the Johnson Street Bridge site, when they start digging around?


They will find archeological sites, especially on the Vic West side. They will be sites dating from before 1846. The city will have to do an archeological impact assessment and then will have to get a permit from the Arch Branch to "alter" any sites they find.

There is a high degree danger that the work will uncover a significant archeological site and this could delay any work by months or more.

#15 masiyou

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Posted 18 November 2009 - 10:45 AM

What would qualify as a significant archaeological site? Any evidence of human habitation such as a midden mound, or would it have to something more?

#16 Sparky

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Posted 18 November 2009 - 12:10 PM

Bingo you are correct. RVYC race results show Rory Morahan skippering "High Voltage" in July.

#17 Bernard

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Posted 18 November 2009 - 01:32 PM

What would qualify as a significant archaeological site? Any evidence of human habitation such as a midden mound, or would it have to something more?


I would see anything that relates to a permanent village site or something that relates to large scale economic activity such as a fish processing station or a permanent hunting infrastructure. The odds of something like that being in that area is very high.

The location has been under road, bridge and rail for close to 90 years. Back then no one cared about archeology in North America.

#18 Sparky

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Posted 18 November 2009 - 10:24 PM

Wow again, I just watched this article on CBC a few minutes ago. I can't wait to hear everyone's take on the Nisga's land reform where they want to hold and sell titles to land.

http://www.cbc.ca/ca...rty-rights.html

#19 Bernard

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Posted 19 November 2009 - 09:38 AM

Wow again, I just watched this article on CBC a few minutes ago. I can't wait to hear everyone's take on the Nisga's land reform where they want to hold and sell titles to land.

http://www.cbc.ca/ca...rty-rights.html


This is getting off topic, but I can not resist.

The Nisga'a have always been planning on allowing the land to be bought and sold to anyone. Their Treaty gives them a system to register interests in the land - they have contracted to make use of the BC Torens registry. An important change that comes with the Treaty is the the Nisga'a retain governance over the land no matter who the owner is.

It is as if German comes and buys some land in the Chilcotin, the land remains under the jurisdiction of the Province and the local government but the German owns the land. Unless the German can manage to become a Canadian citizen, they can not vote in the elections for the government. Nisga'a lands will not operate in an analogous manner, though keeping in mind their government is not a creature of the province and has legal standing outside of either the Federal of Provincial Crown.

The possibility of selling the land and allowing for interests to be registered against the land means owners of land under Nisga'a jurisdiction will in theory be able to get mortgages. Nisga'a country is remote and not a location the banks are willing to serve with loans. Maybe it is time for the Nisga'a to create a credit union or get Peace Hills trust to open a branch there.

#20 Mike K.

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Posted 08 August 2013 - 11:21 AM

The Tsawout First Nation has sent the Songhees and Esquimalt nations a letter of objection about the action they have filed in BC Supreme Court for Cadboro Bay.

CADBORO BAY CLAIM – SONGEES AND ESQUIMALT
We have also sent a letter of objection to Songhees and Esquimalt First Nations about the action they have filed in BC Supreme Court for Cadboro Bay. The W̱SÁNEĆ People have aboriginal rights in Cadboro Bay as we had a village of our people there at the time of the signing of our Douglas Treaty in 1852. We also objected to the statements in their claim giving up all Aboriginal and Douglas Treaty Rights in that area. We hold the position that, “leadership cannot make a decision of settlement for its members' Douglas Treaty or Aboriginal Rights, and they belong to the individual descendants and are hereditary rights”.


http://www.tsawout.c...-office-report-

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