Indigenous law on the ground at Ye’yumnuts

Travelling up residential streets in so-called Duncan, B.C., the houses become more elaborate as the elevation gets higher. At the end of a winding road, among  immaculately-landscaped lawns, is an ancient Cowichan burial site known as Ye’yumnuts.

On a Thursday afternoon, a small group of third-year law students from the University of Victoria (UVic)’s Juris Indigenous Doctorate (JID) program are engaged in a field school with Coast Salish law professor Sarah Morales, visiting the site.

Nearby, an eagle circles over Ye’yumnuts — the burial site isn’t visible or marked from the surface level, so some residents might not know it exists right in their neighbourhood.

That’s why Cowichan Tribes has started a project called ‘Commemorating Ye’yumnuts,’ an initiative aimed at educating the public about the some 2,000-year history of the site. The project and surrounding research are in partnership with UVic’s anthropology department and Cowichan Valley School District.

Over three weeks in late March and into April, the UVic law students set up their day camp in the ancient village site to learn about Indigenous laws stemming from the land — with a larger goal of utilizing that knowledge as a way to protect other sacred areas.

One day, students were guided up Mount Tzouhalem, where they learned about how the trees are an underground network that communicate and care for each other. Another day, the group practiced Hul’q’umi’num’ to make connections between language and law.

Kayla Heath is a member of the Red Rock First Nation in Nipigon, Ontario, and a third-year law student in the JID program. She says she’s felt fortunate to be gifted with traditional knowledge from the area, from Elders who shared their teachings.

The root word of Ye’yumnuts is “lum’” in Hul’qumi’num’, explains Cowichan Elder Luschiim (Arvid Charlie). Ye’yumnuts is located along the banks of the Somenos Creek, where at a time young boys would jump across it as a ceremonial way to determine if they were ready to be a man, he says.

“You jumped across the creek and if you’re not ready as a man, a young man, when you landed your legs buckled and bent that’s a lum’,” says Luschiim in an educational video. “And if you land and you’re standing up you’ve proved your point,” he laughs.

Education about sites like Ye’yumnuts and the living communities around them could motivate the wider public to want to protect the ancestors who are resting there, Heath says.

“Right now [desecration] is happening because they are not seen as being real living breathing people with laws that are continuing in a modern context,” she says.

“They are being seen as ancient remains or ancient sites, and it’s really not the case, [the communities are] still here.”

A province-wide problem

Brian Thom, an anthropologist at UVic involved in the field school, has been doing work involving the Ye’yumnuts site since he was a grad student in 1994.

Back then, he says, the site had been dug up during residential development, and he was asked to explore the site further.

With 1,200 or so known ancestral burial sites in the territory of Hul’qumi’num-speaking peoples alone, the disturbance and desecration of sacred burial grounds by developers has been an ongoing problem across Vancouver Island.

In late February, development in Cordova Bay outside of Victoria uncovered human remains from an ancestral burial site, Saanich Police confirmed.

In March, a development on Hornby Island was halted after ancestral remains were found at the site, according to The Comox Valley Record. K’ómoks First Nation is now involved, with leadership saying that the issue lies with the province failing to enforce the B.C. Heritage Conservation Act, and not the developer.

According to the B.C. government, there are more than 50,000 archaeological sites recorded in B.C. with hundreds being added to the list every year.

“Every year in B.C. archaeological artifacts and sites are discovered by people out hiking, digging in their garden, doing home renovations, developing property, or working on the land base,” the province’s website states.

The website also assures that archaeological sites on both public and private land are protected under the Heritage Conservation Act and must not be altered without a permit.

Thom says in the 1970s, the provincial government hired archeologists to record archeological sites, but he says that mapping was done poorly and to his knowledge no one has ever completed thorough studies of these places.

“The government has never funded that and most of this area is on private lands,” says Thom.

Another important aspect missed when surveying was being completed is that Indigenous knowledge wasn’t taken into account, says Thom. Even today, he says, Indigenous Peoples are only being consulted “on a need-to-know basis.”

Seeking solutions

Thom says he believes municipal governments can be part of the solution, if they take their own measures to protect and honour sacred sites.

He says municipalities could do a better job at zoning, by flagging areas as sensitive when they have a high potential of uncovering a burial site, turning to evidence of oral histories. And when building permits are given, there should be precautionary measures in place that represent Indigenous values, he says.

JID student Andrea Vogel, a settler from Treaty 6 Territory, agrees. As she stands at Ye’yumnuts, she says the main takeaway for her is that settlers must do more to fix the damage that has been done — and continues to be done — to Indigenous lands.

“Settlers created this problem of non-recognition,” she says, adding that it is compounded by expectations of private property owners. “If we’re going to work from truth then the expectations need to shift.”

Fellow student Heath elaborates on this point, and says the province focuses on protecting areas for environmental reasons but not as much for cultural ones.

Even at Ye’yumnuts, which is a provincially-protected area, it was only designated as such because it’s now a conservation area for Garry Oak trees and the tall wooly head that was a red-listed endangered plant species.

An environmentally protected area seems to be the tool that is working to stop development so far, says Vogel, “but the goal is to then actually have Cowichan Tribes jurisdiction here over their site.”

Heath says what needs to happen is a larger, legislative change.

“We need to see laws aligning with UNDRIP and DRIPA,” she says. “We need to see the Heritage Conservation Act administered differently because right now truly the language in it is designed to promote development and what it’s devoid of is language protecting cultural value.”

The lack of recognition was felt on one of the last days of the field school, when a resident in the area apparently phoned the police on the group, saying they were trespassing.

Prof. Morales says she was able to reason with the officer who arrived, and explain the misunderstanding, but recognizes the situation could have been different if not for the privileged position the university has.

The same, but treated differently

Many of the houses within close proximity to Ye’yumnuts were built before the discovery of human remains were documented, says Thom. Though the province asks people to report findings of archaeological sites or human remains, Thom says he believes that many private property owners are reluctant to report findings, because it would require an archaeological permit to continue development.

“When we were doing our work in the ‘90s there were local residents reporting that they had archaeological findings in their homes — not human remains but artifacts,” he says.

In 2016, a man doing renovations on his home in a residential area in Cadboro Bay in Greater Victoria discovered ancestral remains, according to the Cowichan Valley Citizen. The 13 people discovered were later identified by Lekwungen Tung’exw First Nation as being a part of a large family group that set up a permanent village in McNeil Bay and Willows Beach.

Guy McNeill, whom the street is named after, was a proprietor of the Cadboro Bay Motel, apparently found no qualms in digging up gravesites around the property. An archive story in the Daily Colonist from 1963 indicates that McNeill and his sister dug up Indigenous skulls for “fun” and would later use them as “conversation pieces” in his motel.

JID student Katie Mysak, who says she was raised in a blended family and grew up along the Winnipeg River in Anishinaabe Territory, says she is motivated to raise awareness about the ongoing disrespect to Indigenous burial sites.

“If somebody went into a Western cemetery and dug up your grandma, there would be an uproar about that. So why is it any different that a developer can come in and dig up somebody else’s grandma and that’s OK and a permit can be granted for that?” she asks.

“It doesn’t make any sense to me how those things can be so the same, but treated so differently, because it’s a different people.”