North Pender trustees back Tsawout in subdivision delay

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Subdivision of one of British’s Columbia’s highest valued properties is not in the public interest, according to the North Pender Island Local Trust Committee, which has recommended the province end an application for James Island in order to respect  First Nations interests.

As overseers of the land-use  bylaw on James Island, the North Pender LTC voted unanimously last month to advise both the provincial subdivision approving officer and the Lieutenant-Governor-in-Council on its position. They oberserved Tsawout First Nation is opposed to the subdivision and the Islands Trust has committed itself to a path of reconciliation with First Nations in the Trust Area. 

“We are really glad to have the community getting behind us,” said Tsawout Council member Mavis Underwood, who is also one of the WSANEC Leadership Council co-founders. “It helps us a lot to have people stand up with us; that other people are saying, ‘That is right, that is just.’”

BC Assessment valued James Island at $57.98 million this year, making it the third most valuable property in the province. It has been owned by Seattle-based tech billionaire Craig McCaw since 1994, officially as J.I. Properties Inc. The Arizona-based Discovery Land Company announced a partnership for its development in August 2020, naming the island its latest luxury residential community project. 

Rezoning in advance of the bare land strata subdivision was completed in 2008, allowing for up to 80 residential properties (since dropped to 79). The island is also zoned for commercial areas, conservation zones and agricultural use — the latter permitting the island’s Jack Nicklaus golf course.

For Tsawout First Nation, James Island is a cherished part of their homeland. It is part of Saanich group land claims and is the subject of an open lawsuit that Tsawout launched against the governments of British Columbia and Canada in 2018.  

Question of aboriginal title dates back to 1852, when Colony of Vancouver Island governor James Douglas enacted two treaties with local Indigenous groups for purchase of the Saanich Peninsula. According to Tsawout’s legal claim, “The purported purchase of lands by Governor Douglas under the treaty did not include James Island. James Island has never been surrendered by Tsawout.”

While the island was not identified in the treaty, Tsawout believe it should have been protected even if it had been. Policy was that First Nations’ villages, enclosed fields and burial places would be reserved for their continued use even after lands were sold, and that their rights to fishing and to hunting on unoccupied lands would be maintained. 

The 315-hectare (780-acre) island is located just 2.5 kilometres away and directly across the water from the Tsawout village reserve. Legal counsel John Gailus said it’s significant that no other First Nation has made claim to the island, which has two extensive settlement sites, including burial grounds. Tsawout members say along with hunting and fishing, they traditionally husbanded medicinal plants and food resources such as berries, camas bulbs and potatoes.

“What we see is a culturally modified landscape. Our people were meant to come back to continue our way of life and to be surrounded by our ancestors who died there,” Underwood said.

James Island was not set aside as reserve land when parts of Salt Spring, Mayne, Saturna and Pender islands were reserved for the Tsawout. Instead, British Columbia allowed it to be subdivided and pre-empted in the early 1870s. Crown grants to five lots were issued from 1874 through to 1905. 

The island was then turned into a private hunting reserve stocked with fallow deer and other non-native game. Then in 1913, Canadian Industries Limited purchased the island to establish an explosives manufacturing plant. 

“Much of the island was clear-cut to make way for the explosives plant and a village to house workers and their families,” the Tsawout’s legal claim states.

The lawsuit states Tsawout had maintained a permanent presence on James Island until the early 1870s when the provincial government forced the remaining members off the island. Underwood said the First Nation stayed connected to the land and surrounding waters, however, and members believed the island would be returned to them after the need for explosives ended with the Second World War. 

According to Tsawout, there were several times when the provincial and federal governments could have purchased the island, or large parts of it, and returned it to First Nations. Both governments deny any such obligation in their responses filed in court. 

If government were to purchase the island for return to First Nations, the compensation price tag would be high. British Columbia spent $5.45 million to protect Grace Islet in 2015. The amount comprised $850,000 for the land and $4.6-million for the previous owner’s lost investments and future enjoyment.

The Tsawout lawsuit for James Island is still in its discovery phase, and Gailus said it will likely not reach the point where matters can be heard in court for another four or five years, never mind reach a conclusion. There are concerns about how J.I. Properties’ subdivision could prejudice the case, and ultimately, Tsawout want the land returned as is, without further development.

The First Nation rejected a settlement offer from J.I. Properties that would extend some capacity funding for environmental and archaeology studies and other research, and some access to the island, in exchange for not opposing the subdivision. 

“We did not wish to compromise our case for recognition of our protected rights, and history of use and occupation,” Underwood explained. “Our position remains that cooperative efforts supported war efforts but the land should not have been privatized. The island should have reverted back to Tsawout.”

The North Pender LTC’s decision not to advance some steps necessary to the subdivision, and to advise provincial authorities against it, was an unwelcome surprise for the current owners. J.I. Properties representative Brett Rasinski said at the April 1 North Pender Local Trust Committee public meeting he had “never been more blindsided” than by the proposed motions. 

“Beyond that, is the Islands Trust’s consideration of the public interest limited only to consideration of First Nations interests?” he asked. 

In a previous meeting Rasinski outlined the extensive environmental remediation his family had undertaken to restore the land from the explosive manufacturing days, as well as his own attachment to the island through decades of visiting. 

The trustees agreed J.I. Properties has been a good environmental steward, and that the owners have made an effort to consult with First Nations. They did not agree that a rezoning completed in 2008 meant they should advance a subdivision today.

“My concern is this is a different time and a different era than when this subdivision was originally approved. And given [the B.C. Declaration on the Rights of Indigenous Peoples Act] and the [United Nations Declaration on the Rights of Indigenous People] more generally, there are concerns that we have about our responsibility as a local Trust committee around reconciliation,” trustee Deb Morrison said. “It’s about not getting between the province and the federal government and the First Nation in this moment and not moving quickly in a way that potentially causes long-term harm to First Nations, so I feel the need to slow everything down a little bit.”

Underwood said she finds the attitude all too often is that Indigenous people should just “get over” past harms. Actions like those of the North Pender LTC represent an important shift away from colonial thinking.

“Reconciliation is not just getting over it. It’s incumbent on all of us to work through this together,” Underwood said. 

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