The hearing was held in B.C.'s Supreme Court, which is located in The Law Courts building in Vancouver.DARRYL DYCK/The Canadian Press
The boundaries of the land that a judge has declared falls under Cowichan title are ambiguous and open to interpretation, lawyers warned Wednesday in a B.C. Supreme Court hearing.
Justice Barbara Young issued the declaration in her landmark Cowichan title judgment last August, but she has yet to issue the orders that will put the ruling into practice. On Wednesday, she heard closing arguments from the parties about the precise wording of those orders.
In her ruling, Justice Young found that the Cowichan Tribes established Aboriginal title to a former village site that is now currently divided into various fee-simple titles, from private homes to industrial warehouses, in the City of Richmond. The ruling has ignited a national debate on the rights of private-property owners.
Although there are several precedents in Justice Young’s decision – including private lands overlapping with Aboriginal title – it is the exact location of the Cowichan lands that consumed much of Wednesday’s hearing.
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The Cowichan Tribes sought a declaration of title to their traditional summer village site of Tl’uqtinus on the south arm of the Fraser River, and surrounding areas.
The court relied on historical records including surveys along an ever-shifting riverbank, and geographic markers that have long since disappeared – such as a fishing station that was noted in a survey produced in 1859 – to determine the title boundaries.
The Cowichan title lands are laid out in a map, labelled Schedule A, which is attached to the judgment. In her ruling, Justice Young noted that the map is imprecise: “The thick black line on Schedule A is provided as a visual aid to approximate the land over which the plaintiffs have proven Aboriginal title.”
She then described the land in different parts of the lengthy ruling. There are 21 main paragraphs in the ruling that describe the parcel.
The final orders must distill all of that into a succinct, stand-alone order that is clear enough to be used for enforcement of the judgment.
Jessica Proudfoot, a lawyer for the Cowichan, asked Justice Young to resolve any uncertainties around the precise boundaries of Cowichan title in the final orders. She said other parties to the case may seek to reshape the ruling after the fact.
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“Better to resolve it today,” Ms. Proudfoot said. She said a professional, contemporary survey of the lands should not wait for a future date, as it leaves uncertainty for all the parties involved.
“The survey could have been completed at any time in the past nine months,” she said, referring to the time that has elapsed since the judgment was delivered last August.
However, Keith Bergner, lawyer for the province, asked the court to establish a mechanism that would allow the parties to seek clarification from the courts at a later date, should negotiations fail to resolve the boundaries.
He noted that in other Aboriginal title areas, which involve vast tracks of largely undeveloped Crown lands, the boundaries did not need to be precise. In the City of Richmond, he said, a metre in one direction or the other may have serious consequences for landowners.
“We are not looking for a correction, we’re not looking for a mistake to be remedied or a change to be made, we’re looking for precision that is not present,” he said.
Bridget Gilbride, lawyer for the Vancouver Fraser Port Authority, offered what she described as “slight adjustments” to the description of the title land boundaries to be included in the final orders, which she said were not intended to change the judgment but to “adjust for ambiguities.”
Even with her proposed amendments, Ms. Gilbride said there will still be uncertainty around the precise boundaries. “There will inevitably be a survey in the future.”
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MLA Steven Kooner, whose Richmond-Queensborough riding includes the Cowichan title lands, was in court Wednesday to listen to the arguments. Outside the court, he said the court decision is the subject of great anxiety for his constituents.
“My constituents are looking for certainty,” he said. “A few of them have asked for surveys because they are not certain whether they’re within the title boundaries.”
The judgment made six declarations that will form the basis for the final orders. Once those orders are written, the case will officially be complete, and the ruling can be appealed to a higher court.
The potential wrinkle is that Justice Young also heard this week a request from Montrose Properties, a large industrial landowner whose property falls within the title lands, to reopen the trial.
Justice Young is expected to rule on the Montrose application in the coming weeks. If that application is rejected, she will then publish the final orders.