Sinixt Nation launch massive land claim

By Aaron Orlando
A group claiming to be representatives of the Sinixt Nation have filed a writ of summons at the Nelson Court Registry claiming Aboriginal title to land starting in the vicinity of Revelstoke, extending south to the U.S. border, the peak of the Monashee Mountains in the west and the peak of the Selkirk and Purcell ranges in the east.
Filed on July 28, the writ gives the federal and provincial governments two weeks to file a statement of defence.
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The writ says the defendants have unlawfully alienated lands and authorized activities in the land such as issuing licences, leases and permits and seeks a declaration that the plaintiffs have Aboriginal title over the land, damages, and a declaration that the defendants owe the plaintiffs duty of consultation, amongst other types of relief.
The plaintiffs are listed as Vance Robert Campbell, Marilyn James, Lola Jon Campbell, Taress Alexis and Garrett Campbell, Directors of the Sinixt First Nation Society, representative body of the Sinixt Nation, on their own behalf and on behalf of the Sinixt Nation. The claim lists alternate names for the Sinixt as the 'Lakes Tribe,' 'Arrow Lakes Indians,' and 'Arrow Lakes Band.'
Nelson lawyer David M. Aaron is representing the plaintiffs.
He says the Sinixt Nation's 'extinct status' should not be an impediment to the claim because that declaration was made by the Department of Indian Affairs in 1953 for the purposes of the Indian Act and is not related to greater constitutional rights. "The so-called status of the Sinixt as 'extinct people' is a legal fiction that arises out of a series of historical injustices," says Aaron, saying that when the Sinixt were allocated reserve land in the early 1900s, the land consisted of an inadequate "postage stamp" in Oatscott, with no road access. Staying sedentary on the land was not compatible with their way of life, which included seasonal migrations which were in line with their conservationist ideals.
"What the government did is it imposed arbitrary criteria on the Sinixt for recognition of them as registerable Indians under the Indian Act, and that criteria was that they had to stay sedentary on the reserve," adding that only 20 did so at Oatscott.
He says that anyone who was out fishing, hunting or visiting relatives on census day was excluded from the rights accorded to those who were on the reserve. According the rules, their descendents were also excluded.
When the last person registered under the Indian Act died in 1953, the government "conveniently" declared them extinct, says Aaron. "And I say conveniently because this was on the eve of the province's negotiation of the Columbia River Treaty, which dammed up the main transportation route of the Sinixt and the primary source of sustenance, that being their salmon run, so this extinction is a legal fiction and has nothing to do with the rights claimed by way of this aboriginal title writ."
He says, therefore, the extinction is fictitious and has nothing to do with the rights claimed in the aboriginal title writ filed in July. Aaron says the extinction only pertains to statutory rights claimed under the Indian Act, and is therefore separate from an Aboriginal title claim which pertains to constitutional rights under section 35 of the Constitution.
"The concept of Aboriginal title doesn't arise out of the Indian Act, so the so-called extinction is unrelated to this," he says.
Aaron says this claim is for a right to aboriginal title, or rights to the land, which restricts the use of the land to a manner which is compatible with the interests of future generations. "In that regard the Sinixt stand to exercise their aboriginal title right in a manner which is compatible with the interests of the local community in ecological sustainability and maintaining the integrity of our most prized natural amenities," he says.
"The Sinixt stand to step up to the plate as caretakers of the land and exercise their aboriginal rights in a way that reflect the values of the community."
He says many land claims tend to be resolved through a revenue-sharing agreement between the claimant and the government, but he feels this claim will differ in this sense.
"I don't think that you will see the Sinixt show any interest in revenue-sharing as a means of resolving this claim," says Aaron, "They operate with an extremely high degree of fidelity to what they call 'the law of the land' in accordance with their cultural obligations."
Aaron says the Sinixt have long asserted a right to be consulted on a number of conservation matters such as caribou conservation, depletion of old-growth forests and large-scale water diversion projects, giving the example of the Glacier/Howser hydroelectric project. "But now having filed this aboriginal title claim it puts the government to a legal obligation to consult with the Sinixt with respect to all uses and dispositions of Crown land."
He says filing the writ puts the government to an immediate obligation to consult the Sinixt. "We look forward to hearing from them in that regard and we look forward to a process where the Crown discharges its fiduciary duty towards Aboriginal people," says Aaron, "Our goal is to rehabilitate and preserve the Sinixt way of life as it existed before the colonization of British Columbia. Put simply, Canada's Aboriginal people were here when Europeans came and they were never conquered and the rights embedded in our claim are protected under section 35 of the Constitution."
He says the Sinixt want a determination, recognition and respect for the rights claimed.
The claim is listed on behalf of all of the Sinixt, including those living in the U.S., some of whom are prohibited from entering Canada because of the international border.
Membership of the Sinixt Nation Society includes 75 blood members of the Sinixt Nation.
Aaron says the claim area is for land exclusively used by the Sinixt for the past 3,500 to 10,000 years which corresponds to the archaeological record as well as transportation routes used by the Sinixt. "These issues are of historical dimension and the resolution of these issues would constitute a significant step towards the reconciliation process that needs to occur."
Aaron expects the defendants to act honourably in their dealings with the claim and says any legal end-run around the claim due to the 'extinct' status wouldn't fulfill an obligation to do so. He says the courts have commented on the principle of "the honour of the Crown," saying it must be understood very generously, and that the courts have said that the Crown must act honourably in all of its dealings with Aboriginal people, from the assertion of sovereignty to the resolution of claims. "Nothing less is required if we're going to achieve the reconciliation of pre-existing Aboriginal societies with the sovereignty of the Crown. What my expectation is is the Crown will live up to that standard of honour."
He says the Sinixt have long asserted a right that they are owed a duty of consultation with respect to various matters of critical ecological importance and the government has been inconsistent on this expectation, so the Sinixt have decided to file this suit to trigger the Crown's legal obligations and to compel the Crown to consult. "That consultation my even reach the level of having to obtain the consent of the Sinixt with respect to the issuance of water diversion licences or any other statutory or administrative mechanism of approval. As such the Sinixt stand to step up to the plate as guardians of some of our most treasurer resources," says Aaron.
Chief Robert [Bob] Campbell of the Sinixt Nation says he has been actively undertaking Sinixt cultural practices in the area over the past 23 years, including recently repatriating the remains of 61 Sinixt people, and reburying them. Many graves were disturbed when the Arrow reservoir was flooded. "These are our graveyards and we're protecting our graveyards."
Other cultural practices he's been involved with include medicine dances, winter dances, barter fairs and the children-oriented Froggy Fest. For the past 21 years he's been involved with hosting thanksgiving celebrations in Vallican.
Most recently in Nakusp, the Sinixt participated in the David Thompson bicentennial and have been involved in supporting the Nakusp & District Museum's efforts to create a native interpretive centre.
Despite these activities and others that have created an awareness of the Sinixt in local and regional communities, Campbell says it didn't translate into appropriate attention from government bodies involved in land claim issues. "It took me 23 years to finally get noticed, and the only reason they noticed me is because I had to file a separate land claim. As soon as I filed a separate land claim, now everyone knows who I am, so that's good," he says.
"We never were extinct, and the government knew we were never extinct," says Campbell, saying that the extinction status is under the Indian Act only, and does not reflect reality. "To kill that off just for the sake of an Indian Act doesn't really make sense.
"We're the first ones that were ever deemed extinct in Canada," says Campbell, saying that in the past they've applied for status under the Indian
Act, but were denied.
He says the writ means the government will now have to deal with them.
"We can prove who we are, but the government is dragging their feet, because they said we're extinct and we're supposed to die because they said so, for the purposes of the Indian Act," he says, "They have to come forward and do the right thing sooner or later. You can't bury history. There's a 10,000 year history [of our people] here."
He says further proof of their existence is the fact that they have relatives amongst the Okanagan, the Shuswap, and the Ktunaxa. "All the way around us we're surrounded by Arrow Lakes members [and] people who can prove they're Arrow Lakes but they were enrolled into these other tribes that are surrounding us."
Campbell says one main goal of the claim is to get recognition from the Crown.
"The goal is to get some recognition for our tribe and get out of the extinct bracket and start treating us like human beings instead of ghosts."
The deadline for both the provincial Ministry of the Attorney General and the federal Department of Justice to reply to the writ was after the Arrow Lakes News's press time. We will continue to follow the story as developments arise.