The Tsawout are inviting kayakers and canoeists to join them Sunday for a waterborne rally in support of their claim to James Island.
It begins at 9 a.m. with a light breakfast at Cordova Spit, followed by a paddle around the island and then a feast in the Tsawout gymnasium at 2:30 p.m. That’s also where there will be a craft market and Indigenous tearoom from 10 until 4, with the money going to the legal battle for ȽEL,TOS— as the island was traditionally known.
In the civil claim filed in January, the 900-member Saanich Peninsula band is suing the federal and provincial governments for the island, which Seattle telecommunications billionaire Craig McCaw bought for $26 million in 1994. The lawsuit calls for the governments to pay McCaw for the property and turn it over to the Tsawout.
It’s one of those cases that will be watched closely as courts grapple with (or duck) the thorny questions that come when Aboriginal title clashes with private property rights — though the lawyer for the Tsawout says that, no, Joe and Jane Homeowner shouldn’t lose a lot of sleep over the prospect of being forced out of their Gordon Head bungalow by a similar action. (And who knows, McCaw, who’s caught in the middle of this one, might be happy to have a buyer for the island, which was on the market recently.)
The Tsawout argument is that James Island, which sits across from Saanichton Bay a couple of kilometres southeast of Sidney, should have been assigned to them under the terms of the Douglas Treaties of 1852. Those treaties said reserves should be created around villages, and that burial sites and areas traditionally used for hunting, fishing and gathering should be kept for those purposes. The Tsawout say the island met all those criteria but, instead of going to them, was parcelled off by the provincial government in the 1870s.
That’s despite a pattern of use going back, according to the Tsawout creation story, to the time the Creator made the nearby islands by throwing their ancestors into the strait. The islands were shaped — and got their SENĆOŦENnames — according to how those ancestors fell. ȽEL,TOS means “splashed on the face,” a reference to the cliffs worn away by the winds and tide rushing through Cordova Channel.
As it is, James Island remains largely wild, a rich man’s private retreat. The size of downtown Victoria, it is home to fallow deer descended from the game animals imported more than a century ago when B.C. premier Sir Richard McBride was among those who used it as a private hunting reserve.
An old powder-shipping wharf is a reminder of the plant that churned out explosives for two world wars — 19 million kilograms of TNT for the Great War alone — after Canadian Industries Ltd. bought the island in 1913. The plant — which once employed 800 people, most of whom lived on James Island — was in operation until the late 1970s.
In 1988, the island was sold by CIL’s successor, ICI Canada, to a company that wanted to build a 175-home luxury development. Instead, the island was sold again to McCaw’s J.I. Properties in 1994, the same year McCaw and his brothers sold McCaw Cellular Communications to AT&T for $11.5 billion US.
It was McCaw who, although not a golfer, completed the 18-hole Jack Nicklaus-designed golf course begun by the previous owners. There’s also a 5,000-square-foot main house, a half-dozen guest cottages, a manager’s residence, a pool house, a private airstrip and a western-themed “village” housing a library, a full gym and kitchens. Over the years, celebrities from Pamela Anderson to Quincy Jones to Bill Gates have dropped in.
McCaw put it all on the market for $75 million in 2012, around the same time he paid a world record $35 million for a car, a 1962 Ferrari 250 GTO built for Sir Stirling Moss.
That would fit neatly into the David and Goliath narrative pitting a struggling Indigenous community against a powerful U.S. billionaire, but McCaw himself doesn’t meet the caricature some would like to draw.
Over a quarter century he has gained a reputation for not only valuing his secluded Canadian Garden of Eden, but guarding its natural attributes like Suzuki-at-the-gate. High-density development plans were punted. Insecticides were eschewed in favour of yellowjacket traps. “Smoking is not permitted on the island” read the sign at the dock. McCaw spent $5.3 million remediating the contamination left by the explosives plant (and won $4.75 million of that back in a 2014 judgment against ICI).
McCaw also turned 13 per cent of the island into a permanently protected conservation area. Not even he is allowed in the parts — largely the sandspit and the salt marshes by the powder wharf — governed by a covenant with the Nature Conservancy of Canada. They’re off limits to all but permitted scientists and the volunteers who occasionally arrive to wage war on the gorse and Scotch broom and to uproot the crow garlic descended from the backyard gardens of the CIL workers.
The idea is to resuscitate some endangered species — the sand verbena moth, Edward’s beach moth, evening primrose, a scraggly, wiry plant called the contorted pod evening — and to promote biodiversity. The protected beach has created a spawning ground for the smelt, sand lances and other little fish critical to the diet of chinook salmon, which themselves are critical to orcas (remember that it was McCaw who spent millions to reintroduce Keiko, the whale from the movie Free Willy, to the wild).
So, while McCaw might be rich, he’s not Scrooge McDuck — though that’s neither here nor there when it comes to the ownership question. And yes, the Tsawout want the island itself, not monetary compensation for its loss.
“We are land poor,” says Tsawout councillor Mavis Underwood. “We would rather have our land back.” It’s critical to the future of the band’s burgeoning cohort of young people, she says.
Sorting this out in the courts could take several years (though the province says it prefers to resolve such cases in a less confrontational way). The Tsawout would first have to establish title over the island. Then would come the question of compensating J.I. Properties and removing it from the island, willingly or not.
That’s where it gets tricky. The governments’ position has always been that private property is off the table in treaty negotiations unless it’s a willing-buyer, willing-owner situation. But the James Island case is a court case, not a treaty negotiation.
Courts haven’t offered a lot of clear guidance when it comes to the inherent conflict between Aboriginal title and private property rights (though legal experts say the former doesn’t generally trump the latter). However, the landmark Tsilhqot’in decision of 2014, while not addressing the issue directly, did indicate an increased willingness by the courts to delve into such questions, says the Tsawout First Nation’s lawyer, John Gailus.
That, in turn, has led to more legal actions being taken, with more cases likely to come. “It’s likely there are a lot out there percolating,” Gailus says.
Don’t expect to see fee-simple landowners chucked into the cold, though. “I can’t see a court ordering that someone be dispossessed of their property unless they’re compensated,” he says.
That still leaves, though, the question of whether the courts will actually force owners to give up land they don’t want to leave (forgive Indigenous people if they see a certain irony here). The law there isn’t certain, in part because conflicts are often settled out of court. Note that the high-profile 2014 clash over Grace Islet in Ganges Harbour, which pitted those who wanted to protect what they said was a burial ground against an Edmonton man who wanted to build a house on land he had bought for $270,000 in 1990, was resolved when the province stepped in to buy the property for $5.45 million.
That leaves James Island, where Craig McCaw, sitting on property that has been privately held for 150 years, could well feel hard done by being put in this situation, but where the Tsawout might see 150 years as just a blink in time.
