Declaration Regarding Heritage/Sacred Sites By S'amuna' Hw'nuchalewum
March 17th 2003 - Delivered
A Declaration by the Ancient and Sovereign S'amuna' Hw'nuchalewum
(A Somena, Coast Salish Nation)
MARCH 17th 2003
To:
Her Royal Highness, Her Majesty Queen Elizabeth II,
The Right Honourable Adrienne Clarkson,
Governor General of Canada
The Honourable Iona Campagnolo,
Lieutenant Governor, Province of British Columbia
The Right Honourable Jean Chretien,
Prime Minister of the Dominion of Canada
The Honourable Gordon Campbell,
Premier of the Province of British Columbia
Respected Siem Matthew CoonCome:
The Assembly of First Nations, National Chief
Respected Siem Stewart Phillips,
President, BC Union of Indian Chiefs
and to whomsoever it may concern
Please be advised:
A few days ago, on March 12, 2003, a confrontation (1, 2, 3, 4, 5, 6, 7,) began between a group of Aboriginal Peoples (1) in British Columbia and agents of the federal government of Canada.
At this point it would be very easy for the matter to be resolved with a minimum of further confrontation if either the Queen, her Governor General in Canada, The Lt Governor, the Federal
Government of Canada or the Province of British Columbia were to take actions that are both simple and involve no monetary cost to their governments.
If prompt action is not taken, the confrontation will continue and probably escalate with unpredictable results.(1, 2, 3, 4)
The confrontation is over plans by an agency of the federal government of Canada to destroy an ancient site used by Aboriginal Peoples since time immemorial and possibly also desecrate an aboriginal burial ground nearby.(1, 2, 3, 4, 5, 6, 7) For the moment, the chainsaws have fallen silent and the trees have stopped falling, but the government's agents may undertake further activity to destroy the site any day, leaving no further time to defuse the situation.
Please let us explain who we are. We are The S'amuna' Hw'nuchalewum (1), an ancient and honourable traditional governing body of Aboriginal Peoples located in our own territory in the area known as British Columbia.
Now, we'll explain how it is that there are still aboriginal governing bodies and aboriginal title territories in this area when most of North America knows of such things only from history books.
This will also help explain the current crisis.
This area has been claimed by the British Crown for over a century and a half and the crown has entrusted its government successively to the Hudson's Bay Company, the Colony of Vancouver Island, the Colony of British Columbia and now to the Dominion, or Federal Government of Canada and the Province of British Columbia.
Prior to the establishment of any British settlements in this area, representatives of Queen Victoria arranged for the crown to acquire land from the aboriginal owners by treaties. This was common practice in British colonies in those days from North America to New Zealand and was required in North America by the Royal Proclamation of 1763 which is still in force in Canada today, entrenched in the Constitution of Canada, 1982, Section 25 & 35. respectively.
Sir James Douglas, the senior official of the Hudson's Bay Company and later the first governor of the Colony of Vancouver Island, did not acquire all the land on Vancouver Island or any of the land on the mainland by treaty. He left the job unfinished and other colonial and provincial officials made little or no effort to finish the job while encouraging immigrants to settle on and claim lands that were still owned by Aboriginal Peoples and still under the jurisdiction of fully functioning aboriginal nations.
This led to some violence and a great deal of confusion, uncertainty and bitterness. Colonial officials preferred to pretend, in direct contradiction to aboriginal law and British law, (Royal Proclamation 1763) that Aboriginal Peoples had no ownership of any land and no right to govern their own affairs as they had since time immemorial.
Because of the strenuous efforts of William Trutch, Lt. Governor of British Columbia, the efforts of Canada to reverse this policy in 1871 when British Columbia joined Canada were thwarted.
This situation has persisted to the present day. Immigrants have continued to arrive and settle on our Aboriginal Title lands. The provincial government's land office continues to "sell" land to immigrants even though nearly all of that land is still owned by Aboriginal Peoples and has never been purchased for the crown by treaty as required by our aboriginal laws, as well as the laws of the British Empire, Canada and British Columbia.
The provincial and federal governments still sometimes assert that their legislation is binding law even inside the territory of Aboriginal People's ancient Aboriginal "Tribes or Nations" which are required by the Royal Proclamation of 1763 and the Constitution Act of 1982 (section 25, 35) to be left to run their own affairs. Most of these Aboriginal Peoples' aboriginal "Tribes or Nations" have never even been induced to agree to any treaty at all with the crown, not even basic treaties recognizing British sovereignty or crown claims to title.
Although one more treaty was signed in 1899 (Treaty 8) and another in 1998, (the Nisga'a Final Agreement) almost 100 years later, the necessary work of negotiating treaties between the crown and the Aboriginal Peoples' aboriginal "Tribes or Nations" in British Columbia remains unfinished to this day. The federal government of Canada and the Province of British Columbia are in negotiations presently with more than 50 Aboriginal People's aboriginal "Tribes or Nations" to finally agree to the treaties that needed to have been signed in the 19th or 20th centuries.
Non-native land claims and non-native law on unceded aboriginal territories are not legally enforceable until they are recognized in treaties as required by the Royal Proclamation of 1763, a fact that is increasingly recognized by the courts of Canada. (Delgamuukw) This is why there remain large areas of British Columbia which are under the de facto and de jure control and ownership of Aboriginal Peoples' aboriginal "Tribes or Nations". We are such Aboriginal Peoples, and we live in one of those areas and have occupied this area for at least 9000 years or perhaps even longer.
The confusing, uncertain muddle that has been made of land ownership and jurisdiction has persisted beyond all reason and grown to legendary proportions over time. Fortunately, a determined effort on all sides to avoid serious conflict has allowed the inhabitants of British Columbia to keep the peace even under difficult circumstances. These same land ownership and jurisdictional issues are at the root of the crisis that faces us today. As in the past, a determined effort will be necessary to resolve the latest round of problems in a peaceful manner.
It is in this spirit and amidst this background that we write to you today to request assistance in resolving the problem while a resolution is still possible without significant expense or confrontation.
We request your immediate assistance in the protection of two culturally important sites in our traditional territory. One of these sites is a burial place of our ancestors at the S'amuna' Village (the
S'amuna' Village Burial Grounds) (1, 2, 3, 4, 5, 6, 7)and is the type of site intended to be protected by the BC Heritage Conservation Act, section 13 (2) (b).
The second of these sites is a mound, which has been used by our people for various purposes since time immemorial. The mound appears to be a geological formation called a kame, originally created by stones and dirt deposited by melting glaciers. A kame is an uncommon geological feature to begin with in BC, but this one may be unique in all of Canada. Maps prepared by the Royal Museum of British Columbia and the U.S. National Geographic Society both show that the Cowichan Valley was one of the very few places in Canada not covered by glaciers at any time during the most recent ice age (which ended some 12,000 years ago).
Therefore, S'amuna' Mound is presumably a rare remnant of one of the earlier ice ages and therefore is not less than 70,000 years old. It was subsequently modified by aboriginal peoples at some unknown point in the past, possibly before 1846, so as to have trails leading up it and a flat top where people can gather. (1, 2, 3, 4, 5, 6, 7) The oral history preserved by our elders also indicates that this mound has been a place where elders of previous generations would come for relaxation and other purposes.
The S'amuna' Mound is the type of site intended to be protected by the BC Heritage Conservation Act, section 13 (2) (d) and (g). On March 12, 2003 officials of the federal government, and/or her agents of Canada began cutting down the very old and enormous trees on the S'amuna' Mound as part of a plan they have announced to the press which includes cutting down all the trees on the mound and bulldozing the mound to make way for construction of a large Wal-Mart store on this site. (1, 2, 3, 4, 5, 6, 7) The defoliation or destruction of the mound itself would be an irreplaceable loss, but it appears that the proposed construction may put a Wal-Mart store on top of the S'amuna' Village Burial Grounds which are sacred to us.
In two years of discussions with Wal-Mart, none of the federal officials informed Wal-Mart that anyone had ever said there was a burial ground on or immediately adjacent to the proposed store site. (1) One of the federal officials involved has questioned whether the S'amuna' Village Burial Ground exists and another has publicly responded to our concerns by claiming that the construction will not include the burial ground. (1) The grave markers are no longer visible and no federal, nor provincial government official has ever discussed with our elders exactly where the S'amuna' Village Burial Ground is, nor does anybody know the exact location of our ancestors burried in the gravesite, and so we are alarmed rather than reassured by this statement.
They, the agents of the Crown, have gone from pretending the S'amuna' Village Burial Ground doesn't exist to pretending it's not a problem without checking to see where the burial ground actually is. "Chief" Harvey Alphonse, the senior official involved, has stated for the public record that his organization has no intention of even inspecting the burial ground of the S'amuna' Village, to determine where the graves are, and where the remains of our ancestors lie, so as to avoid desecration of the graves by the proposed new development.
Mr. Alphonse, as an official of the federal government, has a legal obligation to at least engage in meaningful consultation with Aboriginal Peoples who hold aboriginal title to the land in question and their traditional ancient governance institutions. The fact that Mr. Alphonse is himself an aboriginal person does not relieve him of this duty or the fiduciary obligations that all federal officials have towards aboriginal peoples. (1, 2, 3, 4, 5, 6, 7) In fact, as an agent of the crown, with a salary paid by the Federal Government of Canada, he has a fiduciary obligation to not harm the interests of Aboriginal Peoples.
Mr. Alphonse and the other federal officials involved in this matter are part of Indian and Northern Affairs Canada's local branch in Duncan. This branch was originally known as the "Cowichan Agency" in the days when it was run by non-native "Indian Agents." More recently, non-native Indian Agents were replaced by new officials known as "chiefs" who can also be non-native Indian Agents, but these days are generally local natives elected to the post.
The title and office of "chief" was created by the federal "Indian Act" and the local "chief," Harvey Alphonse, was chosen in an election procedure created by the federal "Indian Act" and conducted
by non-native officials of Indian and Northern Affairs Canada (INAC). There is some pretense that this "chief" is a traditional leader of Aboriginal Peoples, as the title suggests, but of course,
he is not. The only reason there is a "chief" here is because federal legislation created the office.
Mr. Alphonse only holds that office because Merlita deGuzman, a non- native INAC official, declared him to be "chief" on December 4, 2001 in accordance with non-native federal Indian Act rules. Although Mr. Alphonse is a native from a nearby aboriginal "Tribe or Nation", it is important that he is not a member of the Somena Nation of which the S'amuna' Hw'nuchalewum is now the primary traditional authority. (Somena is an alternative spelling of S'amuna')
Mr. Alphonse was elected in a voting process which Somena people never agreed to and in which Somena people are always vastly outnumbered by the members of other nations who vote in the same elections. These elections are an assault on our traditional ancient governing principles and laws -- Not surprisingly, the predominately non-Somena voters did not elect any Somena candidate as chief nor did they elect a single Somena person to any of the thirteen seats on the council. Similar results have prevailed in just about every such election ever held.
Mr.Alphonse is the chief executive officer of the local INAC branch, which is known as the "Cowichan Indian Band" and also known as "Cowichan Tribes." There is some pretense that this organization is in some way separate from the federal government, but it was created by federal legislation, its budget is part of the budget of Indian and Northern Affairs Canada which retains the authority to directly administer that budget at any time that it chooses to do so, and only the Minister of Indian Affairs can remove Mr. Alphonse from office during his two year term. Indisputably Mr.Alphonse is, de- facto an agent of the Crown.
More importantly, there is absolutely no tradition or authority for any of this in the traditional laws and teachings (snuweyeth) of our people.
This is a key point. There is a tendency among INAC officials and many others to think of the "Indian Band" organizations that were created by the federal Indian Act as aboriginal institutions carrying on the traditions of the aboriginal nations they are named after. This may be true in some places, but it is emphatically not true here.
There are no "chiefs" in our tradition. We don't even have a word for "chief" in the Hul'qumi'num language. Our leaders are our sulqween (elders) and si'em (high honoured people). Our
traditional form of organization is not a chiefdom, a tribe or a group of tribes, but a hw'nuchalewum or "house group." The actual aboriginal governance institutions of our people continue an unbroken tradition that has lasted for thousands of years. We have never accepted the "Indian Band" government with its chiefs and councils as a replacement of the independence of the hw''nuchalewum or the authority of the sulqween. Any act we have taken that could be construed as to have demonstrated our consent to be ruled by Indian Act leadership has been simply to keep the Peace between our "Tribe or Nation" and the Hwinitum (Hungry People - Non-Natives) and their
governments.
The inherent conflict between our actual traditional institutions and those created by the federal government of Canada has grown more heated in recent years as the "Cowichan Indian Band" INAC branch has become more corrupt and lawless.
Just as H. Lomass, the Indian Agent of this region, was caught in scandals pertaining to the misappropriations of land and money at the turn of the century, Harvey Alphonse and the "council" of "Cowichan Tribes" have recently been embroiled in controversy surrounding "treaty related measures " money.
Following a number of unusually confrontational incidents in June and July of 2002, the "Families of the Somena Nation and Allied Families" (an attempt to translate S'amuna' Hw'nuchalewum into English) drafted a Request to the Government of Canada that asked Canada to recognize that the "Cowichan Indian Band" has never had any right to rule the Somena Nation and does not represent the Somena Nation in treaty negotiations, contrary to what the BC Society Act created
Hul'qumi'num Treaty Group has told the British Columbia Treaty Commission.
On October 10, 2002 at a main table treaty negotiation session, that took place in our S'amuna' Aboriginal Title lands without our permission, this request document was hand-delivered to David
Didluck, a representative of the Queen employed by the federal government of Canada to negotiate a treaty with the Hul'qumi'num peoples including Somena.
Another copy was hand-delivered to Robert Morales, chief negotiator for the "Hul'qumi'num Treaty Group" (HTG) which falsely claims to represent all the Somena people and thousands of other aboriginal people from many nations who have never consented to such representation.
Our records indicate that at most, fewer than 1% of the Hul'qumi'num people in this region have been consulted by the efforts of the HTG in its false claim to negotiate a treaty on behalf of all
Hul'qumi'num People.
The Hul'qumi'num Treaty Group is not a traditional institution of any kind, either. It is a society created under the BC Society Act (BC Society Act regs) by the "Cowichan Indian Band" INAC branch and five other similar INAC organizations. The Hul'qumi'num Treaty Group's budget comes from the INAC budget and from the provincial government.
The HTG does not abide by even the Laws of British Columbia, despite being a creation of the BC Society Act.
In addition to our "Request to the Government of Canada" being hand- delivered to representatives of HRH Queen Elizabeth II and the BC Society Act created Hul'qumi'num Treaty Group, the document was read aloud at the main table negotiation session in the presence of representatives of the Queen, the federal and provincial governments, the Hul'qumi'num Treaty Group and several reporters who covered the event.
The reason we are requesting your assistance in this matter is that there is, as yet, no treaty of any kind between the S'amuna' Hw'nuchalewum or any other authority of the Somena Nation and Canada, British Columbia, HRH Queen Elizabeth II or any other British monarch or government.
After the October 10, 2002 request, we contacted the British Columbia Treaty Commission to begin treaty negotiations, but in the interim there is a great deal of uncertainty and confusion as to many matters of law and jurisdiction. In particular, the Cowichan Indian Band has been acting as a law unto itself and claiming to be the government of the Somena "sub-band" (as they call us) and and six other aboriginal nations (Comiaken, Clemclemaluts, Khenipsen, Koksilah, Quamichan and
Kilpahlas). We view this act - the statement of intent of the "Cowichan Band" to be an attempt at an illegal extinguishment of our rights as Aboriginal Peoples.
Supervision by the federal government -- which created this organization and continues to give it over $30 million per year -- has been almost nonexistent. (1, 2) Whether on the grounds that it is
a part of the federal government or on the erroneous supposition that it is an traditional aboriginal governing body, the provincial government exercises no supervision even when the "Cowichan Indian Band" INAC branch creates and operates organizations under the authority of the BC Companies Act (the Khowutzun Development Corporation) and the BC Society Act (Hul'qumi'num Treaty Group) and then proceeds to violate the laws ordinarily applicable to BC Companies and Societies and even to violate their own bylaws and constitutions created by their incorporation under such laws.
We would like this matter to be resolved by a treaty which clarifies that only the traditional governance institutions of the S'amuna' people have jurisdiction over our own territory, but this matter cannot wait for a treaty. It must be dealt with now or further irreparable damage is likely to be done to historic and ancient sites that are important to us and in one case actually sacred to our
people.
Unless and until the traditional governing bodies, duly mandated by their citizens, are recognized as the rightful representatives to conclude treaties with Her Majesty, the Queen of Canada, and her
agents have no way to obtain any treaties that will offer legal certainty. Organizations such as the HTG and various "Indian Band" INAC offices are not traditional aboriginal institutions. Any "treaty" they sign can always be disavowed by the actual traditional institutions and traditional leaders as not being representative of the Aboriginal Peoples "Tribes or Nations".
In fact, such organizations are not representative of aboriginal people and do not have the support of most of the people they claim to represent. This is why the "Agreements in Principle" that have been initialed, have been rejected by aboriginal people in every single vote taken, as has recently been the case in NuuChaNulth and Sliammon. (e.d and Nanaimo.)
This is why no treaties have been concluded after over $500,000,000 has been spent to date by both the federal and provincial governments in the BC treaty process.
"Chiefs" and "councils" created by the Indian Act are agents of the crown and as such are inherently incapable because of a direct conflict of interest, of properly representing the Interests of
Aboriginal People unless they have the sanction and mandate of the Traditional Governance Institutions of their "Tribes or Nations" of the Aboriginal Peoples whom they claim to represent. This is certainly the case in our territory, and it is definitely true in other areas. We suspect it is true of the treaty negotiations currently underway all across BC.
In addition to the jurisdictional issues surrounding the sacred site in question, there are also land ownership issues. The Cowichan Indian Band INAC branch has over many years, denied the existence of aboriginal title of many of our people to land that unquestionably belongs to them. The S'amuna' Village Burial Grounds and the S'amuna' Mound are located on such land. This land was owned by a Somena elder known as Old Celia who was the successor to an unbroken chain of aboriginal title to this land held by Somena Aboriginal Peoples "Tribes or Nations" for thousands of years. Old Celia transferred this land to another Somena native, Chuck Thorne either for settlement of a debt. Chuck Thorne's heirs are the rightful owners of this property today. This transfer took place in the Big House, and was witnessed by S'amuna Siem and now current Sul'queen.
Mr. Alphonse maintains that the land belongs to the "Cowichan Indian Band", an organization which he controls even though the land was never purchased from the rightful owners. This is yet another attempt by the Agents of the Crown to illegally extinguish our Aboriginal Title Rights of Aboriginal Peoples.
We have in the past attempted to reign in the illegal excesses of INAC's local branch by such means as the June 3, 2002 occupation of the "Cowichan Indian Band" offices.While this sort of thing remains an option and the local people, the press, and the RCMP have been very cooperative in such matters, we would much prefer that less confrontational means be used. In our tradition and by our laws, "confrontation" is distasteful to us.
Since the "Cowichan Indian Band" organization is created, funded and under the supervision of the federal government, one possible solution would be for the federal government to use its authority
over INAC and the "Cowichan Indian Band" INAC branch to protect our historic and sacred sites from further destruction or desecration.
Our past experiences in dealing with INAC give us reason to fear that INAC will not "call off their dogs" in the "Cowichan Indian Band" or take any other action whatsoever. If they did take any action, it would be the first time in living memory that they have done so in response to any of our repeated requests over the years on a wide variety of important matters.
Another option would be for the office of the Prime Minister of Canada, the Governor General of Canada or the Queen to use their influence to get INAC to restrain their local branch or directly to
contact the local Cowichan INAC organization and impress upon them the importance of preserving historic sites and not desecrating burial grounds To not do so, based upon our request would place the "Cowichan Band", the Provincial Government, the Federal Government in a position of enourmous liability.
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Another option which we favor would be for the provincial government of British Columbia to take steps to protect our historic and sacred sites by designating them as "heritage sites" in accordance with the provisions of the BC Heritage Conservation Act in hopes that the "Cowichan Indian Band" will accede to the authority of the government and courts of British Columbia. Based on past experience, we have serious doubts as to whether the "Cowichan Indian Band" can be relied upon to obey any laws at all, whether provincial, federal or aboriginal. But it's worth a try.
Of course, it is our position that the sovereignty of the Aboriginal Peoples of the Somena Nation has not yet been compromised or replaced since there has not yet been any treaty to that effect.
Therefore it must be said that we cannot recognize the legislation of British Columbia or, for that matter, the federal government of Canada, as binding law in our territory at this time. To make such a recognition would greatly weaken our position in upcoming treaty negotiations. Nonetheless, although we cannot recognize provincial or federal jurisdiction, we have no objection to either the federal government of Canada or the provincial government of British Columbia assisting the S'amuna' Hw'nuchalewum by requiring the Canadian government's own agent (Mr. Alphonse, the "Chief" of the so- called "Cowichan Indian Band" branch of INAC) to abide by legislation passed by Canada or the province of British Columbia.
If there were to be a conflict between the BC Heritage Conservation Act and the decisions of the S'amuna' Hw'nuchalewum or any other traditional Hw'nuchalewum or the holders of aboriginal title to the land where these sites are located, our own laws and teachings (snuweyeth) must of course prevail, but we believe there is a solution where snuweyeth and BC legislation will both impose the
exact same requirements so that there will be no conflict of laws and no jurisdictional problems.
The BC Heritage Conservation Act provides in Section 4(1) that the provincial government of BC may enter into "agreements with First Nations" regarding the protection of "heritage sites". (A-6)
A "First Nation" is defined in that act as follows:
".. an aboriginal people, sharing a common and traditional territory, and having a common traditional language, culture and laws, or the duly mandated governing body of one or more such people"
We propose that the Province of BC enter into such an agreement with the S'amuna' Hw'nuchalewum which fits that definition of a governing body of an Aboriginal Peoples. This would be the first phase of negotiations between the Aboriginal Peoples of S'amuna' Hw'nuchalewum
and the Crown.
This agreement, when approved by our sulqween (elder leaders) and the Aboriginal Peoples who are holders of Aboriginal Title to the land, will have the greatest possible authority under snuweyeth and the terms of that agreement will also be considered binding law by BC under the provisions of the BC Heritage Preservation Act. Then, provincial courts, the land owners, and the sulqween of S'amuna' will be able to work together in harmony to prevent destruction or desecration of the sites in question.
We further request that the appropriate provincial minister issue a "stop work order" regarding these sites as described in Section 16 of the BC Heritage Conservation Act to deter further destruction while the agreement between the provincial government and the S'amuna' Hw'nuchalewum is being arranged.
We further request that the Duncan Detachment of the RCMP assist in protecting the S'amuna' Village Burial Grounds and the S'amuna' Mound from unlawful destruction and desecration by any individual, or institution, native or not. The following are some of the reasons why destruction and desecration of the burial grounds is unlawful no matter whether aboriginal law (snuweyeth), Canadian federal law, or BC provincial law is believed to be applicable.
(1) According to traditional law (snuweyeth), trespassing on privately owned land could be punished by the property owners by extreme penalties including death. The S'amuna' Village Burial
Grounds and the S'amuna' Mound are located on land owned by the descendants of Chuck Thorne. It is considered trespassing to construct buildings, cut trees, destroy the mound or desecrate the
graves or even walk on that land in violation of the express wishes of the descendants of Chuck Thorne, at least one of whom has already said he does not want the graves or the mound or the trees on the mound disturbed.
(2) According to Canadian federal law, the federal government, including the RCMP and the Cowichan Indian Band which is part of INAC, have a fiduciary obligation to aboriginal peoples to act in their best interest to help them preserve their property and their culture. According to Section 25 of the federal Constitution of 1982, the Royal Proclamation of 1763 protects the aboriginal people here who have not signed a treaty with the crown and guarantees that their lands will not be taken and their right to govern their own affairs in their own way (such as by the S'amuna' Hw'nuchalewum) will not be violated. Since the sites in question are unceded aboriginal lands, important to the culture of aboriginal people and are under the protection of a traditional aboriginal governance body, it is illegal under federal law for anyone, even federal agents, even native federal agents of the "Cowichan Tribes" office of INAC to take that land or destroy or desecrate those culturally important sites.
Furthermore, RCMP, as a part of the federal government, has a fiduciary obligation to protect aboriginal peoples and their cultures and could be sued for breach of that fiduciary duty if it does not.
(3) According to provincial law, the BC Heritage Conservation Act says in Section 13 (2) (b) that a person "must not..." "damage, desecrate or alter a burial place that has historical or archaeological value..." The S'amuna' Village Burial Ground is at least one century old and is the only known burial site of S'amuna' ancestors and therefore is a burial place that has historical value.
It may be many centuries old or even many millennia old and have "archaeological value" but even if it is only one century old, it is still historic and that is enough to make it an offense to damage, desecrate or alter the S'amuna' Village Burial Grounds if BC law is applicable.
Also according to provincial law, the BC Heritage Conservation Act says in Section 13 (2) (d) that a person "must not..." "damage, excavate, dig in or alter or remove any heritage object from, a site
that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846." (A-6)
The S'amuna' Mound contains features such as the trails and the flattened top (natural kames have rounded tops) which are physical evidence of human habitation. These features may be thousands of years old and almost certainly were made by aboriginal people before 1846. If so, it is an offense to damage or alter the S'amuna' Mound if BC law is applicable. We cannot be certain whether these physical features of the mound date back before 1846 and that kind of uncertainty is exactly why the BC Heritage Conservation Act contains Section 13 (2) (g) which states that a person "must not..." " damage, excavate, dig in or alter, or remove any heritage object from, a site
that contains artifacts, features, materials or other physical evidence of unknown origin if the site may be protected under paragraphs (b) to (f)." This means that since the trails and flattened top of the mound are physical features of unknown origin which might have been made by people prior to 1846, it is offense to destroy or alter the S'amuna' Mound if BC law is applicable whether or not we ever know for certain whether those features are ancient or not or man-made or not.
Section 36 of the Heritage Conservation Act makes it an offense for anyone to contravene any of the above parts of Section 13 (2) and specifies that a person convicted of such offense "is liable, if the person is an individual, to a fine of not more than $50,000 or to imprisonment for a term of not more than 2 years or both, or, if the person is a corporation, to a fine of not more than $1,000,000."
Therefore, if provincial law is applicable, it is already an offense punishable by huge fines and two years' imprisonment for anyone to damage, desecrate or alter the S'amuna' Village Burial Grounds or to damage, excavate, dig in or alter the S'amuna' Mound. Damage has already been done, and we would like an investigation done into the crime committed against our peoples and the infringement of our Aboriginal Rights.
As an interim measure, until there is a definitive resolution of outstanding matters by treaty or other agreement, we hereby declare that the S'amuna' Hw'nuchalewum considers the S'amuna' Village Burial Grounds near the S'amuna' Mound to be a sacred site and the S'amuna' Mound itself to be a historic site. The S'amuna' Hw'nuchalewum declares that both the S'amuna' Village Burial Grounds and the S'amuna' Mound are under the protection of the S'amuna' Hw'nuchalewum and are located on private property belonging to the descendants of Chuck Thorne.
The S'amuna' Hw'nuchalewum hereby requests that the Duncan Detachment of the RCMP act to prevent damage, destruction or desecration of the S'amuna' Village Burial Grounds and the S'amuna' Mound in violation of the wishes of the property owners. We invite RCMP to rely upon
whatever legal theory RCMP is most comfortable with and RCMP's actions will be considered by the S'amuna' Hwi'nuchalewum to be assistance rendered to the S'amuna' Hw'nuchalewum at the request of the S'amuna' sulqween and therefore legal under S'amuna' law even if the law RCMP cites in its arrests is not applicable in S'amuna' territory. It is by our invitation only that they may enter our territory to stop any person, aboriginal or not from damaging, desecrating our altering our heritage value, Aboriginal Title lands.
The S'amuna' Hw'nuchalewum is prepared to assert the rights of S'amuna' Aboriginal Peoples - "Tribes or Nations" including the rights of the land owners in this matter by direct action if necessary with or without the assistance of the provincial or federal governments or anyone else.
Thank you for your attention to this matter,