DRIPA may trump private property rights on Gulf Island

Skunked fishermen on the B.C. coast often joke they need a  "James Island spinner," referring to the sticks of dynamite that were manufactured for decades on the second largest privately owned Gulf Island.

But a decision by the B.C. government that referenced Aboriginal rights in nixing a luxury real estate development on James Island may prove no-joke explosive for coastal real estate owners.

This month the provincial government denied an application from J.I. Properties, a company owned by Seattle telecommunications billionaire Craig McCaw, for the development of upscale vacation homes on the island, which is just off the Saanich Peninsula.

The application was denied, in part, due to the “outstanding negative impacts” the development would have on Tsawout First Nation, whose long history on the island includes village sites, food harvesting and numerous burial grounds, according to Ryan Evanoff, the provincial approving officer for the Ministry of Transportation and Infrastructure.

Evanoff also cited potential contamination from sewage and potable water issues, but such problems could likely be overcome with a billionaire’s budget.

McCaw purchased James Island in 1994 for $26 million. The island currently hosts a 5,000-square-foot residence, six guest cottages, private docks, an airstrip, pool house and 18-hole golf course. In 2021 the property, including the buildings, was assessed at $54.7 million by the B.C. Assessment Authority.

John Gailus, legal counsel for Tsawout First Nation, said the veto decision is noteworthy for its application of provincial commitments under the United Nations Declaration of the Rights of Indigenous People (UNDRIP), passed by the United Nations in 2007.

B.C. was the first jurisdiction in Canada to accept UNDRIPA into provincial law, in November 2019.

“This is the first time, that I’m aware of, that there’s a concrete application of the DRIPA [Declaration on the Rights of Indigenous People Act] acts in a provincial approval process,” Gailus said. “I think that’s significant.”

This March, the provincial government released a Declaration Act Action Plan, outlining 89 actions for government ministries under DRIPA.

In 2014, J.I Properties. listed the 770-acre Island for sale through Sotheby’s International Realty for $75 million, but there were no takers. It then relaunched a 2009 development application that had received preliminary layout approval. A revised layout plan for 76 residential and three commercial lots was issued in July 2020.

Over the following years, conditions were added, including consultations with First Nations. Consultations with Tsawout First Nation took place between late 2019 and March 2022.

But, last year, the 900-member Tsawout First Nation sued the federal and provincial governments for the Island, arguing it should have been assigned to them under the terms of the Douglas Treaties of 1852.  The Tsawout say it was forced off the land by the government in 1870 when the province sold James Island for $1 an acre, with no compensation to the Tsawout people.

They want the government to pay McCaw out for the island and turn it over to the Tsawout.

UNDRIP’s article 26 states that, “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.”

B.C.’s ruling to deny the development, and the subsequent lawsuit, may have a blast radius throughout the Gulf Islands, most of which are under First Nations land claims.

The province is in discussions with the North Pender Island Local Trust Area, which includes local governments from more than 39 associated islands within the Islands Trust, including James Island, Sidney Island, North Pender Island and Mayne Island, according to Evanoff. In 2008, the group approved rezoning of James Island, but it has since “adopted significant resolutions” around reconciliation with Indigenous communities.

• With files from Times Colonist