Richmond, B.C., residents look at a map of the Cowichan land title area during an information session for property owners who may be affected by the recent B.C. Supreme Court decision.Jennifer Gauthier/The Globe and Mail
B.C. Premier David Eby says private property owners have reason to be concerned by a recent court ruling that established Aboriginal title over an area that includes private property, because it could have implications in countless scenarios across the country where Indigenous people have been unjustly displaced.
However, the lawyer for the Cowichan Nation says the Premier is incorrect because the unique circumstances of the case cannot be broadly applied elsewhere.
Mr. Eby made his comments on Tuesday, ahead of the 10th B.C. Cabinet and First Nations Leaders’ Gathering in Vancouver.
The Premier was asked by a reporter why he doesn’t make clear in public statements that the Cowichan did not seek to invalidate private ownership, also known as fee simple title, which could reassure landowners. Mr. Eby said the court’s decision found “that the Crown grant of land is invalid, and therefore the titles that follow from that are invalid,” regardless of what the Cowichan sought.
“There are many examples across the province, and across the country, where Indigenous people were displaced from land illegally, wrongly, unjustly, where there are now fee simple property owners that operate businesses or live in homes,” Mr. Eby said.
Observers anticipate lengthy legal process after B.C. Aboriginal land title decision
But David Rosenberg, lead counsel for the Cowichan Nation, said the lands in question were “settlement lands,” meaning they were set aside for Indigenous settlement and were not supposed to be available for private ownership.
“The failure by the Crown to protect these ‘settlement lands’ is a historical fact that may be unique, or at least highly unusual, and would not be the case for the rest of fee simple lands privately held in B.C. or Canada,” he said in an interview with The Globe and Mail.
The 863-page ruling, handed down in August, states that colonial governor James Douglas set aside settlement lands for the Cowichan in what’s now southeast Richmond, on the Fraser River, for the future creation of what were then called Indian reserves.
But after B.C. joined Confederation in 1871, the Crown began issuing grants of fee simple titles over the land without legal authority. Richard Moody, the Crown agent who was tasked with ensuring that the reserves were created at the sites of the settlements, made the first purchase.
The lands “were originally set aside, but then they were not protected as they were supposed to be,” Mr. Rosenberg said. “So it’s a unique fact of history that may not apply anywhere else.”
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Thomas Isaac of Cassels Brock & Blackwell LLP, a leading expert in Indigenous law in Canada, argues that the ruling, if upheld, could have have significant implications across B.C.
He cited a section of the ruling in which B.C. Supreme Court Justice Barbara Young said that a precedent that will follow from the case is that two provisions of B.C.’s Land Title Act, which together essentially guarantee ownership under fee simple title, do not apply to Aboriginal title.
“The judge expressly states in the decision that, in B.C., you cannot rely solely on your title as unquestionable evidence of ownership of land,” Mr. Isaac said in an interview, adding that she did not restrict this to the Cowichan title land.
If upheld, other appellate courts and other jurisdictions would then look to the decision and give it due consideration, he said.
Lyackson First Nation Chief Shana Thomas, a political executive with the First Nations Summit and a member of the Cowichan Nation, spoke alongside Mr. Eby on Tuesday, saying that it is the responsibility of B.C. and Canada − not private property owners − to reconcile Aboriginal title with the assertions of the Crown.
Richmond warns property owners B.C. Supreme Court decision could ‘negatively affect title’
“We can do that through treaties, arrangements and other constructive arrangements,” she said. “And if we focused our energy on that work, rather than legal pluralities and consequences, I think that we would be much further along.”
Justice Young’s decision found that the Cowichan have established Aboriginal title to roughly 800 acres in the area, as well as the right to fish for food.
She declared the land titles held by Canada and Richmond to be “defective and invalid” but suspended this declaration for 18 months so the Cowichan, the federal government and the City of Richmond “will have the opportunity to make the necessary arrangements.”
The B.C. government and the City of Richmond have said they will seek a stay of the decision until an appeal can be heard.
The province, the city and the federal government are appealing because they say it could pose significant unintended consequences for private property owners, while the Musqueam Indian Band and Tsawwassen First Nation are appealing because the area overlaps with their own traditional territories. The Cowichan are appealing over the court’s decision to recognize only about 40 per cent of the area claimed.