Richmond Mayor Malcolm Brodie called on the courts to fast-track proceedings so that his community, which is at the centre of the Aboriginal title case, can get clarity.Jennifer Gauthier/The Globe and Mail
More than seven months after the B.C. Supreme Court issued a landmark Aboriginal title ruling for the Cowichan Tribes, the promised appeals have not begun because the trial is not officially over.
Within days of the Aug. 7 Cowichan decision, British Columbia Attorney-General Niki Sharma promised the province would seek to overturn the ruling, which had left unanswered questions for some private landowners.
“We disagree strongly with the decision,” she said. “British Columbia will be filing an appeal and seeking a stay to pause implementation until the appeal is resolved.”
In the 863-page ruling, B.C. Supreme Court Justice Barbara Young found the Cowichan Nation has title to about 300 hectares of developed land in Richmond, and that Aboriginal title, a type of ownership claim rooted in ancestral use of land, is a “prior and senior right” to private ownership.
The ruling has created uncertainty for private landholders in Richmond, whose “fee simple” title to their lands now overlaps with the nation’s Aboriginal title, though the Cowichan have said they don’t intend to dispossess these owners.
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Today, all seven parties, 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.
The province can’t even file its stay – to suspend the enforcement of the decision – until the order is in place. And that order is now in limbo, pending an application to reopen the trial.
“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.
“The judiciary is in a position to expedite just about any proceedings that they face. And I think that it’s time to stop taking a casual approach and to get down to business.”
Legal experts say the Cowichan case is already the longest trial in Canadian history, and it will run longer still. In January, one of the private landowners whose land title has been swept up in the ruling filed an application asking to reopen the trial because they had not been a party to the case.
That application is currently mired in procedural wrangling in court over what documents need to be produced by the parties. Until the Montrose Property Holdings application is decided, the final order that effectively ends the Cowichan litigation will not be written. And there is no date set yet for the court to hear that application.
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The precedent-setting Cowichan decision sparked national debate about the rights of private landowners where Aboriginal title has been declared.
“I accept that a declaration of Aboriginal title may give rise to some uncertainty for the fee simple title holders and it may have consequences for their interests in land,” Justice Young wrote in her ruling.
This was the first Aboriginal title case in Canada to go to trial for lands that are exclusively held in fee simple title – that is, private lands. Roughly half of the Cowichan title lands in Richmond are owned by the City of Richmond, the Canadian government and the Vancouver Fraser Port Authority. The rest is privately held by about 150 homeowners and businesses who were not named as defendants and were not represented at trial.
In addition to declaring the Cowichan have title to the Richmond lands, the judge also ruled that the Crown – the government of B.C. – unjustifiably infringed on the Cowichan Nation’s lands when it granted fee simple titles and set aside lands for highways in Richmond. She also found the title for lands held by Richmond, Canada and the Vancouver Fraser Port Authority in the area subject to Cowichan title are “defective and invalid.”
All those declarations will form the basis for a “trial order” that summarizes the actions that are to flow from the lengthy ruling. The Court of Appeal won’t set a date for the Cowichan decision to begin until that order has been made.
The province and the Cowichan are now in negotiations to try to resolve the matter that has absorbed most of the public interest: those private lands that have a declaration of Aboriginal title overlapping their ownership.
“The Cowichan Nation respectfully did not seek to invalidate any privately held fee simple titles,” says a joint statement released by the two parties on March 2.
“Neither the Cowichan Nation nor British Columbia are seeking to invalidate any privately held fee simple titles on the Cowichan Title Lands through the negotiation or appeal processes.”
In her judgment, Justice Young noted that the Cowichan hadn’t asked for recovery of the private fee simple lands but rather a mechanism for negotiating the reconciliation of their Aboriginal title.
“They are not pursuing exclusive use and occupation of privately-owned lands in the Cowichan Title Lands at this time. What they may choose to do in future negotiations or litigation is speculative.”