Seabird Island celebrates win over utility company in court

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Last month the Seabird Island band announced the Federal Court of Appeal had reversed a lower court decision that they had no taxable interest in land taken from them for a highway right-of-way in the 1950s.

They were in court because Telus (formerly BC Tel) began running fibre optic cables on poles through the reserve in 1997, on what was claimed by Telus to be land belonging to the Lougheed Highway. In the same year, according to Seabird Island's finance manager, Don Davis, the band starting assessing tax to Telus, in accordance with bylaws the band had passed five years before.

Telus appealed to the Seabird Island Board of Review, claiming the land was no longer part of the reserve. BC Tel lost the case. That decision was subsequently reversed at the Federal Court Trial Division, Davis said, as the trial judge found "that no, the highway's right-of-way was not in the reserve, therefore any interests on that right-of-way would not be in the reserve."

Davis explained, "When the provincial government took a right-of-way for a highway, the province took over responsibility to assess any interests on the highway. So the issue was one of jurisdiction: was the land in the reserve or not, therefore, did the taxation bylaws apply or not."

He said that when the land was taken by the province, "whatever the rules were at that time, they were followed, as far as the right-of-way being created. The issue was, if there was any other interests that happened to be sharing this right-of-way, who had the right to tax those interests?

"So, essentially the province, even though we had implemented our taxation bylaws, continued to assess any interests that happened to be within that highway right-of-way, and the Telus fibre optic lines were one of those interests."

While an appeal was pending with the Federal Court of Appeal, the Supreme Court of Canada came down with a decision in the case Osoyoos Indian Band v Town of Oliver. That decision essentially set a precedent that brought the law down on the side of the Seabird Island Indians.

In the Seabird Island case, a majority of the Federal Court of Appeal ruled that the trial decision could not stand "in the light of the Supreme Court's decision" in Osoyoos. The two cases were very similar, which meant Aboriginal interest in Seabird's 20-acre-long right of way used by BC Tel had not been extinguished.

Davis said their jurisdictional victory means "the (Seabird band's) bylaws do apply, because there is still a residual interest in the reserve for the right-of-way. It wasn't absolutely surrendered."

In court, he said, the whole issue revolved around the Order in Council that created the right-of-way, and whether or not that Order in Council had the effect of an absolute transfer of interest to the province.

The Seabird Island band has a right to tax. It assessed $6,000 a year against the utility company, which has been paid. Telus has now "taken steps to have themselves removed from the roles," said Davis.

Clem Seymour, a band councillor, said in a prepared statement, "We are delighted with this victory; this is further recognition of our jurisdiction and it will create greater certainty for everybody."

Telus has abandoned further avenues of appeal, said Davis.