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General News · 9th March 2011
BM Hills
Klahoose letter to SRD re. Cortes Island Draft OCP
March 9, 2011

Strathcona Regional District
225 S Dogwood
Campbell River, V9W 6K6

Dear SRD Board Members:

Re: Draft Cortes Island OCP Bylaw, 2011

As you are no doubt aware, the community of Cortes Island is in the process of preparing a revised OCP. As a First Nation with constitutionally protected Aboriginal title and rights to the lands and waters within the OCP planning area, as well as reserve lands located on Cortes Island, we have reviewed the draft OCP and wish to draw some issues of significant concern to your attention.

Klahoose has a history of use, occupation and management of Cortes Island and surrounding areas that long predates the onset of European colonization and the creation of the SRD. Our reserve at Squirrel Cove is our primary residential reserve, and is currently occupied by approximately 65 registered Band members. As with other First Nations across this Province, our people have suffered from a long history of dispossession of our lands and resources, as well as policies intended to deny our rights and destroy our language and culture. Notwithstanding this history, Klahoose has in recent years successfully pursued a strong, regionally-based economic development strategy that includes sustainable forestry (we now own and operate TFL 10 in the Toba valley as well as a woodlot licence on Cortes), aquaculture (including an active geoduck tenure adjacent to our reserve and pending shellfish tenure applications in Gorge Harbour) and on-reserve businesses. Each of these initiatives provides local employment, tax revenues to local, Provincial and Federal governments, and resources critically important to meeting our community’s growing needs.

Klahoose therefore has a very important stake in the regulation of lands, waters and resources in our Territory, including Cortes Island. Our Aboriginal title and rights, which are protected under s. 35 of the Constitution, are at stake, as is our ability to exercise and benefit from those rights through initiatives that benefit our community, as well as the local economy. Klahoose is therefore quite distinct from other interest groups who have a stake in the OCP. We are not a “stakeholder”, but rather a distinct level of government with our own constitutional role and rights, and our own unique relationship with the Provincial and Federal governments that is grounded in our history, our Territory, and our laws.

Unfortunately, after reviewing the draft OCP we are driven to conclude that the SRD, whether by intention or omission, has failed to show any meaningful regard for our unique status and rights. Issues of particular concern include:

There has been no consultation with Klahoose

The OCP is exactly the kind of higher level, strategic planning document that the courts have found triggers the duty to consult and accommodate Aboriginal peoples. It purports to establish the policies, objectives and guidelines that will apply to future development of lands and resources in our Territory. As such, it clearly has a real and direct potential effect on our Aboriginal title and rights, and ought to have been the subject of meaningful engagement by the SRD prior to the publication of a draft OCP for public review.

That consultation has not occurred. There has been no effort by the SRD to meet with our Chief and Council to provide information, discuss and identify our concerns, and seek to work out suitable interim solutions that address our concerns. Whether or not the SRD views itself as legally required to fulfil the honour of the Crown, steps to ensure meaningful engagement and involvement with Klahoose should have been taken. To be clear, the need for consultation is not satisfied by the ordinary input processes available to other stakeholders. As noted above, Klahoose is a distinct level of government with unique and distinct rights and interests that require a unique and distinct process of engagement.

We also wish to specifically comment on the reference to a “Klahoose Elders Discussion” at p. 2 of the draft OCP. This refers to a meeting, organized without any input from Klahoose Chief and Council, with a small group of elders in our band hall last summer. The elders who attended did not realize input was being sought on the OCP, and did not have the information or background to understand what an OCP is and how it may relate to Klahoose interests. The OCP planning team was clearly advised that any consultations with Klahoose must be through our Chief and Council, who represent the collective Aboriginal title and rights interests of the Nation. The fact that this meeting is referenced in the draft OCP as some form of meaningful “community input” is misleading and paternalistic.

The same comment applies to the statement at p.6 of the draft OCP that members of the Klahoose have “taken part in discussions” leading to the revised OCP. This statement totally misrepresents the extent of Klahoose involvement in the preparation of this document.

The OCP ignores Klahoose’s history and interests

The references to Klahoose and Klahoose lands in the draft OCP and attached maps are incorrect, ignore our interests and presume a power to regulate our lands that the SRD does not have. The drafters of the OCP do not even show us the respect of correctly representing our status as an independent First Nation, instead incorrectly stating at p. 6 that there is a “Coast Salish Nation” of which Klahoose is a part. Coast Salish refers to broad number of Nations that share common linguistic and cultural backgrounds. There is no “Coast Salish Nation”, but rather distinct First Nations within the Coast Salish group, each of which possesses distinctive Aboriginal title and rights to their respective territories.

The draft OCP also completely fails to mention Klahoose in the section addressing archaeological and cultural resources at p. 42, an omission that is quite remarkable given that the archaeological resources in question include those left behind by our ancestors long before any European set foot on this island.

The maps attached to the draft OCP reflect a fundamental misapprehension of the capacity of the SRD to regulate our reserve lands. Both the general map and DP map purport to “zone” our lands, first as ALR lands and secondly as “Sustainable Wilderness” lands. We find it remarkable that the SRD would prepare maps that not only fail to acknowledge and identify our reserve lands, but actually go so far as to propose a unilateral assertion of zoning powers over those lands. We had thought that all of the progress made in acknowledging and respecting Aboriginal peoples would have made such paternalistic gestures a thing of the past, but apparently we are wrong at least in the case of the SRD.

Finally, nowhere in the draft OCP is there any recognition that Klahoose has significant, ongoing economic development plans that entail the use of the lands, waters and resources of Cortes Island. Anyone reading the OCP who was not acquainted with our Nation would assume that we are simply absent in the development of the Cortes Island area of our Territory, and content to follow the directions set by the SRD. This is not the case and, given the direction of this OCP, is unlikely to be the case at any point in the near future.

The draft OCP overreaches the RSD’s powers

We are particularly concerned with the proposal in the draft OCP to establish “Development Permit Areas” for all the coastal area of Cortes. We question whether s. 919.1 of the Local Government Act provides any authority for the SRD to purport to regulate marine aquatic uses, including shellfish aquaculture. Shellfish aquaculture is now solely a Federal responsibility, and in our view the SRD has no delegated power, under the Local Government Act, to apply another layer of regulation to what is a federally regulated activity. We also note that the focus of Division 9 of the Local Government Act is on land-based developments, not marine areas. The same comment applies to the intention, reflected in the DPA zoning map, to zone our reserve lands as “Sustainable Wilderness”. We will decide what happens on our reserve lands, and will do so pursuant to our own laws, processes and community priorities.

Of equal or greater importance, it is clear that the inclusion of this proposed power in the draft OCP is intended to apply to, and potentially frustrate, Klahoose’s pending aquaculture tenure applications. This conclusion arises from the email of October 19, 2010 from Noba Anderson to various recipients, which specifically suggests that the DPA concept be incorporated into the draft OCP to apply to Klahoose’s aquaculture applications (copy attached). We are frankly amazed that the SRD would advance the DPA proposal, knowing full well that it is motivated by a Regional Director’s desire to limit our ability to move forward with sustainable aquaculture activities, without ever raising this issue for discussion with our Chief and Council.

Conclusion

The draft OCP opens with a Vision Statement that provides as follows: The Klahoose First Nation and the broader community honour each other’s traditions and have a true collaborative working partnership.

Unfortunately, we are very far from achieving that vision with the SRD. The manner in which the draft OCP has been prepared does not even acknowledge our rights, lands and interests, much less reflect a “true collaborative working partnership”. Achieving such a goal will require the SRD to stop treating our Nation as a minor stakeholder, relegated to participating in public input sessions along with all other residents, and instead recognize that Klahoose is a level of government with particular rights and interests in the lands and resources of Cortes Island that must be addressed and respected. If the SRD wants to move beyond mere lip service to the goal of working with Klahoose, it could start by developing maps that respect our reserve lands and following processes that reflect a genuine intent to understand, address and accommodate our concerns and interests.

The SRD lacks the power to implement the draft OCP without Provincial approval, and given the failure of the SRD to date to engage in any form of consultation with Klahoose, we will be ensuring that the Province is fully aware of our concerns and takes steps to ensure they are addressed. It is regrettable that we are driven to do so, as it means that the community of Cortes may be giving input on a document that ultimately will have to be altered by the Province to reflect the need to accommodate Klahoose. However, given the conduct to date of the SRD, we see no other option.

(original signed by KB)
Ken Brown
Chief Councillor