Kwusen’s Research Informs Province’s Decision to Reject Development of ȽEL,TOS (James Island)
Citing the Tsawout First Nation’s Aboriginal interests, the Government of BC recently rejected a major residential development plan for ȽEL,TOS (James Island) which is located off the Saanich Peninsula (near Victoria). Despite transfer of the island to private ownership, the Tsawout First Nation has a strong Title claim to L̵EL,TOS and has continued to object to proposed real estate developments on the island. A real estate developer, J.I. Properties, proposed subdividing L̵EL,TOS into a luxury residential community in a July 2020 development application. As a part of Tsawout’s response, they hired Kwusen to review available evidence of their Title and Rights to the island. The research was completed under the direction of our Director of Research, Towagh Behr (MA) and Research Manager Alissa Cartwright (M. Phil), with anthropologist Stella Spak (PhD) conducting a thorough review of research data and key literature.
“Through my long-term friendship with Tsawout Elder Mavis Underwood I have been aware of the difficulties Tsawout experiences as a result of the lack of places available to Tsawout members in which to engage in undisturbed traditional practise. It was an honour to be able to help move Tsawout’s ability to look after and protect their relative of the deep, L̵EL,TOS, forward with our work.
I would also like to thank Tsawout staff, Council and community members who provided me with guidance and support. It was an honour to be allowed to gain a better understanding of W̱SÁNEĆ history and territory through this work.”
The memo Kwusen produced summarized Tsawout’s Rights and Title to ȽEL,TOS and invoked DRIPA (Declaration on the Rights of Indigenous People Act). Tsawout and their legal counsel moved forward in consultation with this memo in hand. In the BC Government's decision to turn down J.I Properties’ application to develop the island, it appears that BC found the ongoing work of the Tsawout First Nation and their legal counsel, supported by Kwusen’s comprehensive memo on Title evidence, to be compelling. The provincial approving officer for the Ministry of Transportation and Infrastructure (MoTI), Ryan Evanoff, rejected the application, having determined that the development was not in the public interest. Evanoff stated that the application’s approval would have adverse effects on “Tsawout’s Aboriginal interests,” alongside concerns over the “conservation, stewardship, and environmental protection of the Island” (Times Colonist, 2022). We’re pleased to know that this collaborative work contributed to the province’s rejection of the application.
“Both as a community member and as a member of Council I really appreciate the work of Stella Spak and others in helping to articulate the words and the wishes of Tsawout community members to maintain that historic connection to the past.”
This BC Government decision is of particular interest to all First Nations in BC. As noted by Tsawout’s legal counsel, John Gailus, Evanoff’s decision on the application is the first time that DRIPA has been explicitly applied in a provincial approval process. Kwusen hopes that this signals a new era in Crown/Indigenous relations, as it has been our experience over the past decade that many of the adverse effects on Indigenous Title and Rights that we have identified in our reports have not been adequately addressed by the Crown. The whole Kwusen team was relieved to see our work in support of the Tsawout First Nation inform this decision making process. While the outcome of this decision is encouraging, Tsawout’s efforts to reclaim ȽEL,TOS continue. A civil lawsuit filed by Tsawout in 2018—asking the courts to order the BC government to return ownership of L̵EL,TOS to the Tsawout First Nation with compensation for J.I. Properties—is ongoing.
References
Grossman, Neil. “B.C. rejects U.S. firm's plan to subdivide James Island for upscale vacation homes.” Times Colonist, (Victoria, BC), June 4, 2022. https://www.timescolonist.com/local-news/bc-rejects-us-firmas-plan-to-subdivide-james-island-for-upscale-vacation-homes-5443946, accessed July 13, 2022.
“Rejected subdivision would have turned B.C. island into enclave for wealthy, says Tsawout Nation.” CBC News, 2022. https://www.cbc.ca/news/canada/british-columbia/james-island-subdivision-rejected-1.6477735, accessed July 13, 2022.
