A landmark court ruling in British Columbia regarding Aboriginal land title over urban lands has ignited fierce debate and uncertainty over the future of private property rights in the province and across the country.
The federal and provincial governments are appealing the B.C. Supreme Court’s ruling in favour of the Quw’utsun Nation, or Cowichan Nation, that found it had “established Aboriginal title” to more than 5.7 square kilometres of land on the Fraser River in Richmond, south of Vancouver.
The City of Richmond has also joined the appeal.
The ruling declared Crown and city titles on the land are “defective and invalid,” and the granting of private titles on it by the government unjustifiably infringed on the Cowichan title.
That has created confusion and anger among homeowners in the affected area, despite the Cowichan Tribes insisting it has no intention of stripping private title holders of their property.
On Thursday, Richmond city Coun. Alexa Loo claimed an unnamed local company was refused financing for what she says was a $100 million project because of uncertainty over their site due to the ruling.
The case could also set a precedent for Indigenous land claims in other parts of Canada: an Algonquin First Nation filed a similar title claim in Quebec Superior Court this week.
“Further legal clarity is required to address the decision’s potentially significant nationwide implications, particularly relating to private property rights,” a spokesperson for federal Crown-Indigenous Relations Minister Rebecca Alty told Global News in a statement explaining its decision to appeal.
The statement did not answer calls from the opposition BC Conservatives to refer the case directly to the Supreme Court of Canada.
B.C. Premier David Eby said Wednesday his government will be asking for a stay of the implementation of the decision to allow the B.C. Court of Appeal more time to consider the case and provide some “clarity and assistance” on what comes next.
An Angus Reid survey released Thursday suggests 60 per cent of B.C. residents support the decision to appeal, with the same number suggesting the ruling harms reconciliation efforts in the province. Three-quarters of respondents called the ruling “serious.”
Here’s what to know about the historic case.
The Cowichan Nation, which includes the Cowichan Tribes and related descendants, and three other First Nations, launched their legal case in 2019, sparking the longest trial in Canadian history.
The case sought to reclaim government-held lands near the mouth of the Fraser River, known as the traditional village of Tl’uqtinus. The Cowichan would travel there to fish and harvest resources every summer for generations until, they argued, they were stripped of the lands in the late 1800s.
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Today, the disputed land is owned by the federal Crown, the B.C. government, the Vancouver Fraser Port Authority, the City of Richmond and private third parties.
Defendants in the Cowichan not only included all three levels of government and the port authority, but also the Tsawwassen First Nation and the Musqueam Indian Band that owns property in the claim area.
In her more than 800-page ruling on Aug. 8, B.C. Supreme Court Justice Barbara Young directed the Crown to decide how to settle ownership where current legal titles overlap with Cowichan’s newly-recognized title.
The judge suspended the decision for 18 months to allow the Cowichan, Crown and city “the opportunity to make the necessary arrangements,” noting the ruling “will change a long-established status quo.”
“Much remains to be resolved,” she wrote.
The Musqueam Nation, which has also appealed the ruling, said at the time that the “devastating” decision impacts their own title and fishing rights in land that includes its own traditional and unceded territory.
Aboriginal title gives Indigenous peoples claim to territory never ceded by their ancestors, allowing First Nations jurisdictional authority to use the land as it sees fit. Courts have repeatedly upheld that it is constitutionally protected, including in British Columbia.
At issue in the Cowichan case is whether Aboriginal title supersedes what’s known as fee simple title, the term used for private land ownership, or whether the two can coexist.
Both the court ruling and the Cowichan themselves have said the plaintiffs weren’t seeking to invalidate fee simple titles, but that they wanted lands held by government returned to them.
Any privately-held properties would only be affected once they’re sold, lawyers for the First Nations have said, though it remains unclear what the impact could be on future sales of those properties.
The ruling, however, declared fee simple titles held by the Crown and the City of Richmond invalid under Aboriginal title, leading to the overall confusion.
A separate B.C. Supreme Court ruling in September, which upheld the Haida Nation’s Aboriginal title over the Haida Gwaii archipelago in B.C., affirmed a deal between the First Nation and the province that would allow Aboriginal and private property rights to coexist.
That has raised questions about why the province didn’t make the same argument in the Cowichan case at trial.
“So they’re in one court saying private property and Aboriginal title cannot coexist and in a different court saying private property and Aboriginal title can coexist,” Caroline Elliott, director of the Public Land Use Society, told Global News.
“So there’s a reason for people to be confused and frustrated and angry about this.”
Debate over the ruling was reignited earlier this month after the City of Richmond sent a letter to a group of 150 property owners in the land claim area, warning them that the case could compromise the validity of their ownership.
“I’m not saying we don’t want to do the right thing and cure some historical wrongdoings by various levels of government, but fee simple property — your home — should be exempt from this discussion,” Richmond Mayor Malcolm Brodie told Global News after the letter was sent.
A packed and tense information session in the city this week heard from hundreds of frustrated residents and property owners about the fate of their titles.
“We don’t want to be moving anywhere,” landowner Bal Batth, who received the Richmond letter, told Global News prior to the meeting. “We don’t want to be giving up this property and have no intentions of selling this property.”
Eby and Richmond Mayor Malcolm Brodie have argued the Cowichan should have informed property owners about the case when it was launched and brought to trial.
The Cowichan have accused Eby and other officials of spreading “misinformation” about the ruling, because their case did not seek to overturn private property titles.
“The ruling does not erase private property,” a statement from the Cowichan this week said.
Lawyers have cautioned that it’s simply too early to say how the case could progress on appeal and beyond.
“To me it looks very premature to have a public gathering to address the implications of something which really may not actually come to pass,” Kate Gunn, a partner at Vancouver law firm First Peoples Law who is not involved with the case, said in an interview.
B.C. Attorney General Niki Sharma told reporters last week the province’s appeal “will be making sure that we make clear that simple title has a superior title than everything else.”
The Crown-Indigenous Relations ministry’s statement said Ottawa “remains committed to advancing reconciliation and upholding its legal obligations to Indigenous Peoples.”
“We will continue to work collaboratively with all parties to uphold the principles of reconciliation, transparency, and legal responsibility to all parties. We remain available for dialogue with the other parties to the litigation throughout this process.”
— With files from Global’s Amy Judd and Neetu Garcha, and The Canadian Press
