XPost: can.politics, van.general, ont.politics   
   From: Panca@nyet.ca   
      
   Vancouver Sun December 2, 2014   
      
   New land claim seeks massive territory on B.C.'s South Coast, including Stanley   
   Park   
      
   Tiny, unrecognized Hwlitsum First Nation launches ‘novel’ lawsuit   
      
      
   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.   
      
   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   
   â€œIndian bandsâ€� — 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 (BC 'Liberal' Party)  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.’â€�   
      
   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-nessâ€� under the Constitution, may have federally   
   protected   
   rights.   
      
   â€œThe constitutional question is if you decide to assert your â   
   œIndian-nessâ€� and   
   you are truly aboriginal by ancestry, then if you have a group, is that then a   
   First Nation?â€� 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.â€�   
      
   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.   
      
   â€œThis is a novel and serious claim, the first I have seen,â€� said Harding.    
   â€œI   
   have never seen a First Nation seeking municipal land before, and it will be of   
   concern to other municipalities.â€�   
      
   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.   
      
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