B.C. Supreme Court Justice Barbara Young concluded last August that the Cowichan had established Aboriginal title to a portion of their claim, lands that are now part of the City of Richmond.DARRYL DYCK/The Canadian Press
Lawyers for the private owners of a swath of industrial land near Vancouver will be in court Monday to ask a judge to reopen a lengthy court case that has thrown the legal status of their property into question.
The Cowichan Tribes land claims trial concluded more than two years ago and the final reasons for judgment were delivered last August. But Montrose Property Holdings Ltd. will argue it was never given the opportunity to defend its interests during the 513-day trial.
Lawyers representing eight parties – including Montrose and the federal and provincial governments – will appear this week armed with 11 volumes of related case law.
The Cowichan will argue the application is an abuse of process and the case should not be reopened.
“The Cowichan Nation has achieved a great victory after seeking the return of their homeland for more than 150 years,” the lawyer for the Cowichan, David Rosenberg, told The Globe and Mail as he prepared to head back into court.
“If all parties who claim an interest in the lands were to be added as parties to the case, it would make the proceedings unmanageable, which would not be in the interests of the administration of justice.”
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B.C. Supreme Court Justice Barbara Young concluded last August that the Cowichan had established Aboriginal title to a portion of their claim, their traditional summer village of Tl’uqtinus on the south arm of the Fraser River. Those lands are now part of the City of Richmond.
The ruling sparked business uncertainty and a political outcry.
Justice Young also declared land titles held by Canada and Richmond in the area to be “defective and invalid.” If the Cowichan’s win is upheld in future appeals, they could eventually take control of the land in question, or they may negotiate financial compensation.
The ruling created uncertainty for private landholders in Richmond, whose fee-simple title to their lands now overlaps with the nation’s Aboriginal title. Fee-simple lands have long been known in Canadian law as the highest form of private land ownership.
The Cowichan have said they don’t intend to dispossess these owners.
The end of the trial can’t come soon enough for Premier David Eby, whose government has been battered over its inability to assure private landowners that their rights are not threatened by the court judgment.
All parties have said they will appeal the judgment, but none of the appeals can go ahead until the outcome of the application to reopen the case is determined, and the final orders are written.
“We’re limited in what we can do about the Cowichan decision until the trial court is done with their determinations on the file, so once that’s concluded, we’ll be filing our appeal materials,” Mr. Eby told reporters Thursday.
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Montrose is the largest single landowner with land in the title area. Its affected holdings include a Coca-Cola bottling plant and a Canadian Tire depot. As a result of the judgment, Montrose argues that it is unclear if provincial laws – ranging from the Labour Relations Code to the Provincial Sales Tax Act – apply on its property.
Although a decision to reopen a trial after the judgment has been delivered would be rare, Montrose’s application cites five cases where that has happened.
“The discretion to reopen a trial is properly exercised where the court is satisfied that it is in the interests of justice to do so, particularly that not reopening the trial would probably result in a miscarriage of justice, and that the reception of the new evidence would probably change the result of the trial,” the court filings state.
Should Montrose’s bid to resume the trial fail, appeals to a higher court by the other seven parties are already drafted. The stakes are so high that the case will likely be decided eventually at the Supreme Court of Canada.
Justice Young, in her ruling last year, acknowledged her decision “may give rise to some uncertainty for the fee-simple title holders.”
That has turned out to be an understatement. The political fallout has grown in the nearly 10 months since her ruling was issued, as both Ottawa and Victoria struggle to assure property owners that Canada’s legal bedrock of fee-simple ownership remains intact.
The ruling has been a gift to the Conservative opposition parties in both Ottawa and Victoria. Federal Conservative Leader Pierre Poilievre has been to B.C. twice in recent weeks to campaign on the issue, accusing the federal Liberal government of failing to protect private property rights.
The Conservatives’ efforts prompted Prime Minister Mark Carney to weigh in, saying his government “fundamentally disagrees” with the court decision because of the uncertainty that has been created.
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The B.C. Conservatives are similarly pressing the B.C. NDP government for being on the losing side of the case.
“When a landowner has to go to the Supreme Court to find out what they own, every investor, every lender, every business in this province is watching,” the Conservative critic for Indigenous relations, Scott McInnis, said Thursday.
Mr. Eby was swift in promising to appeal the ruling, vowing to “fix” the problems created by the judgment.
“The uncertainty this case creates is toxic to the work we have to do with First Nations and businesses and the economy that we have to grow.”
Still, pollsters from the Angus Reid Institute have found growing discontent with the Eby government’s handling of the file.
In a survey conducted in late April, Angus Reid found that 55 per cent of British Columbians surveyed think Mr. Eby has done a “bad job” balancing Aboriginal title with private property rights in the province. The beneficiaries are the provincial Conservative party, which is now leading in popularity by a margin of 10 percentage points. The online survey of 804 British Columbians has a margin of error of plus or minus three percentage points.
“The Cowichan decision opened up a level of uncertainty and doubt around private property rights among British Columbians particularly,” said Shachi Kurl, president of the Angus Reid Institute, in an interview.
No matter who is to blame, the result is an erosion of broad support for the work of reconciliation with Indigenous peoples, she said.
“This is a sea change on sentiment, driven by uncertainty and a political vacuum.”