Private landowners have no place participating in the Cowichan Tribes’ Aboriginal title case before the B.C. Supreme Court, a lawyer for the First Nations argued Tuesday.
B.C. Supreme Court Justice Barbara Young is hearing submissions this week on an application from a large industrial landowner in Richmond, B.C., to reopen the Cowichan case, which is already the country’s longest-running trial.
David Rosenberg, the lead lawyer for the Cowichan, said the application is an abuse of process, and that allowing a private landowner to become a party to the case almost 10 months after the final judgment was written would set “a terrible precedent” that would invite potentially hundreds of interested parties to seek to relitigate the case.
“It would make the litigation unmanageable,” he said.
Justice Young ruled last August that the Cowichan had 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.
“I find that change to the status quo in the Cowichan title lands must occur in this case to achieve justice,” she wrote. But she did not prescribe how the land governance will change, and instead directed the province and the Cowichan Tribes to negotiate a settlement. Those talks are now under way.
Montrose Property Holdings Ltd. is the largest private property owner in the title area. Lawyers for Montrose are seeking to reopen the trial to consider Montrose’s land rights, saying private landowners have been negatively affected by the judgment, but were denied the opportunity to have representation at trial.
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Mr. Rosenberg noted that the courts have historically been unwilling to give private parties standing in legal proceedings involving constitutionally protected Aboriginal rights and title.
In the Nisga’a title case, known as the Calder Case, the B.C. Supreme Court rejected a bid to include parties that may have had an interest in the land claims case, he noted.
Former justice Aulay Gould wrote in his 1969 decision that doing so “would involve many hundreds of defendants, such as to preclude, for practical reasons, any litigation going forward in any Court. The law does not take kindly to any such frustratory proposition.”
Similarly, in a preliminary ruling in 2002, former B.C. Supreme Court justice David Vickers rejected an application from the province to give notice to tenure holders in the Tsilhqot’in land claims case. That case would eventually lead to a landmark victory for the Tsilhqot’in, with the first declaration of Aboriginal title in Canada. The former justice ruled that allowing potentially hundreds of claimants to join the case would make the litigation practically impossible to advance.
But Mr. Rosenberg also raised a more contemporary case – he quoted extensively from Justice Young’s Cowichan judgment to argue that her court has already rejected requests to include third parties.
In a pretrial order, the court rejected an application from the federal government to serve notice to third parties in the Cowichan case. Then, in her final reasons for judgment, Justice Young ruled that her court has jurisdiction to make a declaration of Aboriginal title on the private lands in Richmond even without the private landowners present.
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She concluded that Aboriginal title and private ownership through the legal mechanism of fee-simple title can co-exist. She acknowledged that her decision “may give rise to some uncertainty” for private landowners, but said the Cowichan are also constrained by the existence of fee-simple titles.
“I find that Aboriginal title and fee simple titles can co-exist, and where they do, the exercise of one form of title must yield to the other so long as they are both present on the same parcel of land.”
Mr. Rosenberg said the judgment makes clear that private landowners including Montrose own title to their lands for now.
“What we sought was a mechanism for negotiating reconciliation of Aboriginal title, we did not and do not pursue exclusive use and occupation,” he said in reference to the private lands.
That could change, he noted. “If, in the future, the plaintiffs seek to exercise their title rights on the land to which Montrose Industries has a fee-simple interest, then dispute resolution will be required, and if it’s going to be litigation, if that’s necessary, then Montrose will have the opportunity to be heard.”
Justice Young is expected to deliver a decision on the Montrose application in the coming weeks.