Small aboriginal group launches lawsuit laying claim to Vancouver's prized Stanley Park

A small group of dispossessed aboriginals in Delta are laying claim to a vast swath of southern Vancouver Island and the Lower Mainland, including Stanley Park.

The group members, who have no federal or provincial recognition and no reserve, want their pick of all federal, provincial and municipal lands within the claimed territory.

Saying their territory was wrongly taken after the shelling of a Gulf Islands village by a Royal Navy gunboat in 1863, the Hwlitsum First Nation are claiming in a B.C. Supreme Court action $1 billion each in damages from the provincial and federal governments.

For the first time, the Supreme Court of Canada has recognized a First Nation’s title to a specific tract of land — a historic decision with major implications for contentious energy projects such as the Northern Gateway pipeline.

Thursday’s 8-0 decision, which overturned an appeal court ruling, will essentially make it easier for First Nations to establish title over lands that were regularly used for hunting, fishing and other activities.

The landmark ruling is the Supreme Court’s first on aboriginal title and will apply wherever there are unresolved land claims.

They also want land that has been promised to the Tsawwassen First Nation as part of that group’s treaty settlement agreement.

The case could stall efforts by the federal and provincial governments to resolve long-standing claims by recognized First Nations.

The tiny Hwlitsum band was formed in 2000 after its chief, Ray Wilson, won a 15-year Supreme Court fight to regain his full Indian status. However, Wilson and his extended family, which comprises about 250 people, have been unable to get official federal and provincial recognition of their band, with the result that they remain a First Nation in name only. They have filed a statement of intent with the B.C. Treaty Commission, but their claim has not advanced very far.

Frustrated at the lack of progress and worried that lands they claim may be given to others, the Hwlitsum launched a wide-ranging civil suit on Nov. 7 in which they applied for a large number of injunctions to stop any dispersal of lands that might compromise their claim. In addition to the federal and provincial governments, they named the cities of Vancouver, Richmond and Delta, the Vancouver park board, the Capital Regional District and the Islands Trust, the regional government that oversees the Gulf Islands.

The suit appears to be aimed at preventing the provincial government from transferring land at Brunswick Point in Delta to the Tsawwassen First Nation as part of that group’s treaty settlement agreement. The land borders Canoe Pass, which the Hwlitsum say was the site of an ancestral village the province burned in the 1970s when it expropriated the surrounding lands for the Roberts Bank coal port. The province has agreed to first sell the lands back to farming families they expropriated from in the first place, with the proviso that any lands not sold would then be transferred to the Tsawwassen nation. The Hwlitsum say the land should be offered to them as part of any settlement.

The Hwlitsum say they should be given title to many other lands, including municipally held properties. They specifically say six Hwlitsum members should each be given 160 acres of Stanley Park, or almost all of the 1,001-acre park.

Chief Wilson declined to comment on the case, and his lawyer, Alberta-based Jeffrey Rath, did not reply to an email seeking comment.

The Hwlitsum say they are the descendants of a powerful and feared tribe called the Lamalcha, whose pre-colonial reach extended throughout the southern Strait of Georgia as far up the Fraser River as Yale. Some of those lands, they say, were jointly shared with other Coast Salish tribes. In a 40-page notice of civil claim, they say one of their principal villages was on Kuper Island near present-day Chemainus, which they abandoned in April 1863, when the gunboat HMS Forward shelled it during a dispute. In the ensuing days, several Lamalcha chiefs were captured and hanged, an act the Hwlitsum say would be a war crime today. When colonial powers subsumed and redistributed the Hwlitsum into “Indian bands” — including the Tsawwassen and Musqueam — their true aboriginal title was confused with claims of other nations, they said in their claim.

Last week, a B.C. Supreme Court judge set aside all of the injunction applications the Hwlitsum filed in their claim, pending a challenge from the federal and provincial governments on whether the band has any legal standing. The case will be heard in March.

The judge also ruled that the municipal governments, Capital Regional District, Islands Trust and park board will not have to file any response to the claim until the provincial and federal government challenge has been decided.

The case is far from simple, according to Geoff Plant, a former B.C. attorney-general and the lawyer representing the Tsawwassen First Nation. The Tsawwassen treaty agreement doesn’t take away other First Nations’ aboriginal rights, he said. “The Tsawwassen treaty is not supposed to extinguish anybody else’s aboriginal right. The government can’t do a deal with one First Nation that prejudices another First Nation’s rights. The Hwlitsum are saying, ‘You’ve forgot about us. First you dispossessed us, you forgot about us, and then you ignored us. And now is our time.’”

Plant said it remains to be seen whether the Hwlitsum have a case, but he noted that even without reserves and official recognition, aboriginal people who assert their “Indian-ness” under the Constitution, may have federally protected rights.

“The constitutional question is if you decide to assert your “Indian-ness” and you are truly aboriginal by ancestry, then if you have a group, is that then a First Nation?” he said. “Irrespective of whether or not a government has formally recognized you, if your argument is that you were wrongly excluded, then you go off to court and say governments can’t eliminate our aboriginal rights and title. We exist, we’re here, we’re still here, this is our territory, and you need to make some kind of a declaration that recognizes that.”

The case also has set a precedent for municipalities, according to Reece Harding, a lawyer with Young Anderson who represents both Delta and the Islands Trust.

In the past, First Nations have included provincial and federal lands in their claims, but stopped at municipal governments. The Hwlitsum in this case specifically seek a claim that including those lands.

“This is a novel and serious claim, the first I have seen,” said Harding. “I have never seen a First Nation seeking municipal land before, and it will be of concern to other municipalities.”

Plant also noted that the notice of civil claim doesn’t expressly exclude privately owned land, something that has normally been the case in other land claims cases.