Good morning,
The B.C. Supreme Court’s decision concluding that the Cowichan Tribes of Vancouver have a “prior and senior right” to some of the lands in their claim area, including some land privately owned, is unquestionably headed to the BC Court of Appeal.
It’s also highly likely to be heard at the Supreme Court of Canada.
But all that’s going to take a while.
As The Globe’s Justine Hunter reported, more than seven months after the ruling, the promised appeals have not begun because the trial is not officially over.
All seven parties in the case, including three levels of government, the port, the Cowichan themselves and two neighbouring First Nations, have filed applications to appeal – a process that will likely take years.
But it’s not clear when that might even start, because the B.C. Supreme Court trial that ran for 513 days is not concluded until a final order has been written by the judge.
That can’t happen until the court decides on an application by the largest private landowner affected, Montrose Property Holdings, to reopen the trial.
The application is currently mired in procedural wrangling over what documents need to be produced by the parties. Until it is decided, the final order that effectively ends the Cowichan litigation will not be written. And there is no date set for the court to hear the application.
“I am personally frustrated by it,” Richmond Mayor Malcolm Brodie said in an interview. “I see the matter being bogged down. It is causing great angst and stress in our community.”
He called on the courts to fast-track proceedings so that his community, which is at the centre of the case, can get clarity.
But a similar case on the other side of the country might offer some answers sooner.
Lawyers for the Wolastoqey Nation of New Brunswick are asking the Supreme Court of Canada for leave to appeal its case seeking a declaration of Aboriginal title over private property in that province.
Six years ago, the Wolastoqey launched their claim for Aboriginal title on their traditional territory, which covers both Crown and private land. Companies that owned land in the claim area, including J.D. Irving Ltd., sought to be excluded from the case.
In 2024, the New Brunswick Court of King’s Bench ruled the Crown was the only proper defendant but said the Wolastoqey could still seek a declaration of Aboriginal title over the private land.
Last December, the New Brunswick Court of Appeal ruled the Wolastoqey Nation could not seek such a declaration.
New Brunswick appeal court Justice Ernest Drapeau wrote that he was “unable to see” how Aboriginal title could co-exist with private land, known as fee-simple ownership. He stated that a declaration of Aboriginal title over such land “would sound the death knell of reconciliation.”
It is a stark contrast to the Cowichan decision.
The Wolastoqey are calling on the top court to enter the fray to settle the legal uncertainty.
“Until the question of whether Aboriginal title can be declared over fee-simple lands is clarified, title claims in various stages of litigation across Canada will face uncertainty,” the Wolastoqey said in their application to the Supreme Court of Canada to have their appeal heard, filed in February.
Several opponents say the Wolastoqey case isn’t the right one for the Supreme Court to decide on the broader national issues of Aboriginal title and fee-simple title.
Because there hasn’t been a full trial on the Wolastoqey’s claims, they argue the Supreme Court should wait to hear an eventual appeal of the Cowichan case after it moves through the BC Court of Appeal.
But given the procedural morass with the lower court ruling in Cowichan, and the fact that the case hasn’t yet been reviewed by the BC Court of Appeal, the Cowichan case is far behind that of the Wolastoqey.
Based on recent averages, the Supreme Court of Canada could issue a yes-or-no decision on taking the case by June, but a decision would stretch months longer because the legal issues are complicated.
It will be a while before there is any clarity on how Aboriginal title intersects with private property interests.
This is the weekly British Columbia newsletter written by B.C. Editor Wendy Cox. If you’re reading this on the web, or it was forwarded to you from someone else, you can sign up for it and all Globe newsletters here.