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B.C. Supreme Court rejects request from Capilano band to 'divorce' Squamish Nation

Call to quash 100-year-old amalgamation must be heard in Federal Court, says B.C. Supreme Court justice. Lawyer for hereditary chief says Capilano band plans to appeal
The B.C. Supreme Court has rejected a request to quash a 100-year-old amalgamation of Indigenous bands that created the Squamish Nation.

A B.C. Supreme Court justice has rejected a request to quash a 100-year-old amalgamation of several Indigenous groups into the Sḵwx̱wú7mesh Úxwumixw (Squamish Nation).

The decision follows a court petition filed in May by Don Mathias, a hereditary chief of the Capilano Indian Nation, asking the court to recognize the Capilano as a separate nation from the Squamish and to cancel an agreement signed on July 23, 1923, legally joining the nations.

“Essentially, what the Capilano band seeks to do is reverse the 1923 amalgamation and reconstitute itself as a separate band,” wrote B.C. Supreme Court Justice Shelley Fitzpatrick in a decision on the case Jan. 10.

The Capilano want to ‘divorce’ the Squamish so the band can “obtain some independent constitution of its own so that it may operate with its own assets and funds,” Fitzpatrick wrote.

But Fitzpatrick said the B.C. Supreme Court has no jurisdiction to decide the issue, as the legal agreement joining the bands was made by Ottawa. That means the issue would have to be heard in Federal Court, she wrote.

Issue dates back almost 100 years

The petition addresses an issue dating back almost a century, when a group of chiefs in Vancouver and the surrounding area petitioned the Department of Indian Affairs and the Crown to amalgamate into one band, which would be known as the Squamish Nation.

The Chief of Capilano at that time, Chief Mathias Joe, was one of the signatories to that petition, Fitzpatrick noted.

On July 31, 1923, Ottawa approved the request and consolidated the funds of the different Indigenous groups into one pot of money, to be administered by the Squamish Nation.

“It is my understanding that, in the almost 100 years since that time, the Capilano band has advanced various grievances against Squamish Nation with respect to the administration of the Squamish Nation's assets and funds. This appears to be the real substance of the dispute,” Fitzpatrick wrote.

'Settler laws' don't apply, Capilano argue

In court, the Capilano band argued that the Federal Court has no authority or jurisdiction over Indigenous people, Fitzpatrick wrote “based on arguments that have been advanced in this court before, namely that Indigenous law applies and ‘settler’ laws do not apply.”

Fitzpatrick noted, however, “I am far from clear . . . just what ‘Indigenous laws’ are said to apply here.” She added that in any case, if Federal Court was described as a creation of “settler laws”, the same argument would apply to B.C. Supreme Court.

The lawyer for the Capilano Band, Andrew Rogerson, told the judge the band is simply looking for a remedy, “and they want some relief in respect of what they consider to have been injustices over the last almost 100 years.”

In the court petition, which was filed against both the Crown and the Squamish Nation, Mathias and the Capilano Band allege that the Squamish Nation has misappropriated funds that should have been allocated to the Capilano, including revenue from significant business opportunities.

In an earlier court ruling last fall, B.C. Supreme Court Justice Jasmin Ahmad ruled that parts of the case involving those allegations can go ahead in B.C. Supreme Court.

Rogerson said this week the Capilano plan to appeal the most recent decision.

Anyone seeking to question federal decisions must file a claim in Federal Court within 30 days, said Rogerson, adding “this problem commenced approximately 100 years ago. Capilano people cannot be denied justice by directing it to a court that was only created in 1971.”  

The Capilano continue to take issue with the governance system of the amalgamated Squamish Nation, saying the government was supposed to be directed by hereditary chiefs under the original agreement but that was later changed to exclude hereditary chiefs in favour of an elected model.

'No chance' of claim succeeding, says Squamish Nation lawyer

Robert Janes, a lawyer who represents the Squamish Nation, said there’s “no chance” of Mathias’s claim succeeding.

“The Nation was fully merged back in 1923. Any challenge to that is long out of time,” he said.

Janes said there was no understanding in 1923 that “there would be amounts just paid out to people” and said there’s no evidence to support allegations of misconduct by the Squamish Nation. The Nation passes annual budgets and posts financial statements online, he said. “The community has access to all of that.”

Janes said beginning in the 1980s the band shifted from a hereditary chief system to an elected band council system, but that was approved by the community, most recently by a referendum.

Janes said the Squamish Nation will deal with an appeal if and when one is filed.

He added the Court of Appeal has made it clear in a number of past cases that any challenge to federal decisions needs to be made in Federal Court.