Cadboro Bay, a quaint seaside village in Saanich known for its treed neighbourhoods and giant sea monsters at Gyro Park, has become the centre of a 160-year-old dispute between area First Nations and senior governments.
Esquimalt and Songhees First Nations have filed two separate civil lawsuits against B.C. and Canada, both which seek compensation for the loss of aboriginal village land at Cadboro Bay, which the bands argue is protected forever under one of six Douglas treaties.
The Esquimalt Nation statement of claim, filed in April, says that in 1850, Fort Victoria governor James Douglas entered into treaties with existing tribal groups, which effectively ceded much of Greater Victoria to the British Crown, “except for village sites and enclosed fields.”
“We know there was a village there (at Cadboro Bay),” said Steven Kelliher, lawyer for the Esquimalt Nation. “It will be for the experts to assess the parameters of that village.”
Indeed, the civil trial may come down to a duel of expert historians and archeologists interpreting the fine details of colonial records, and divining the intentions of colonial authorities and aboriginal leaders.
Kelliher said his researchers are combing through Hudson’s Bay Company and provincial archives for colonial maps, documents, drawings and personal letters to reconstruct the timeline and details of the Cadboro Bay village of the Chekonein, a sub-group of the Songhees.
“During the time of these treaties, there was a large European presence, with people writing letters home and creating drawings and maps. The entire coastline was mapped by the British navy, there’s maps marking the shoreline. Those will be useful to locate where the village was,” Kelliher said.
“This isn’t an area far removed from colonial life. The record is not complete by any stretch. It’s spotty, but it’s there.”
The B.C. and Canadian governments, in their statements of response, assert the Cadboro Bay village site had been abandoned or vacated before 1844, and didn’t constitute a village site under the Douglas treaties.
The Douglas treaty only refers to village lands in the Songhees Point Indian Reserve in the Inner Harbour and not lands in Cadboro Bay, the B.C. government asserts in its response.
Canada also argues there is a statute of limitations and the Esquimalt Nation is “responsible for the prolonged, inordinate and inexcusable delay of approximately 162 years in bringing this action … Canada has been prejudiced as a result of this delay …”
Kelliher said when it comes to aboriginal treaties, statutes of limitations don’t exist – the government can’t abandon a treaty due to time. He also doubts the Chekonein people just “up and abandoned a village.”
“That seems pretty unlikely. I don’t know any evidence that supports that proposition,” he said. “We’ll have to see.”
The Esquimalt Nation statement of claim isn’t seeking ownership of Cadboro Bay property, but seeks unspecified dollar amounts for damages due to the Crown failing to fulfill treaty obligations.
Kelliher said compensation figures will be formed through testimony from First Nations people, historians and archeologists, similar to the B.C. Legislature case in 2006, where Songhees and Esquimalt eventually settled out of court for $31.5 million. The Douglas treaties also formed the basis for that lawsuit.
The Esquimalt Nation’s claim doesn’t specify the size or precise location of the village site, other than being near Cadboro Bay. A similar Songhees Nation lawsuit filed in 2009 says the Chekonein people occupied villages and fields in and around Mount Douglas, Ten Mile Point, the University of Victoria, Cadboro Bay and Discovery and Chatham Islands.
The Songhees argue that the Douglas treaties specify six areas of about 200 acres each that should have been surveyed and protected for aboriginal villages and agricultural use.
Kelliher said it’s likely the Esquimalt and Songhees lawsuits would be heard together in B.C. Supreme Court, but will remain separate actions. Set for at least 60 days in May 2013, the civil trial should provide an illuminating and extensive examination colonial and aboriginal relationships from that era.
“This is a long time coming,” Kelliher said. “(The Crown) made a deal … it was a few blankets for extinguishing (aboriginal) title for all the land, apart from the village sites. They guaranteed the village site and enclosed fields.”