The B.C. Supreme Court found that the Cowichan Tribes have Aboriginal title over a broad swath of occupied territory in Richmond, B.C.CHAD HIPOLITO/The Canadian Press
There have been many landmark land-claims decisions in Canada that have originated from challenges by First Nations in B.C.
This is not surprising given that B.C. – unlike the rest of the country – does not have treaties with most of its Indigneous peoples. It was inevitable that disputes over title would end up in court.
The first big case was in 1973, involving the Nisga’a Nation and their chief, Frank Calder. Calder et al v Attorney General of British Columbia ended up in the Supreme Court of Canada which, for the first time, acknowledged “Aboriginal title” as a valid legal concept. Decades later, in 2014, the same court, in Tsilqot’in Nation v British Columbia, recognized the First Nation’s right to over 1,700 square kilometres of land in the province’s Interior, marking the first time Aboriginal title was confirmed outside of a treaty.
Last week, B.C.’s Supreme Court handed down what could end up being the most impactful land-claims ruling in the country’s history. It found that the Cowichan Tribes have Aboriginal title over a broad swath of occupied territory in the Vancouver suburb of Richmond, land upon which ownership, or “fee simple title,” is held by various entities, including homeowners and private businesses.
B.C. to appeal court ruling that recognized Aboriginal title to land south of Vancouver
To say the consequences are far reaching is stating the obvious. The decision – which is being appealed by the B.C. government and could ultimately end up before the Supreme Court of Canada – could have an impact on provincial affairs for decades. The ripple effect could be dizzying. The sum of money it may take to negotiate a settlement with the Cowichan Tribes is staggering to consider, especially for a B.C. government that is racking up debt at a historic rate.
The decision came after more than 500 days of litigation, stretching over nearly five years. The decision by Justice Barbara Young ran 863 pages, adjudicating the Cowichans’ claim to more than 1,700 hectares on the south shore of Lulu Island, as well as the right to fish in the southern Fraser River for food. According to documents entered in court, the Cowichan Tribes had a permanent village in the area first observed by Hudson’s Bay Company officials in 1824. The lands were later surreptitiously taken by the province and sold off to arriving white settlers.
Today much of the area is owned by the government of Canada, its agent the Vancouver Fraser Port Authority and the city of Richmond. It also includes blueberry farms, a golf course and multi-million-dollar homes. There are warehouses operated by Amazon, Canadian Tire and Wayfair, among others.
The Cowichan Tribes did not seek a declaration that private homes be ruled “defective and invalid,” unlike the land owned by the provincial, federal and city governments. However, according to Justice Young’s ruling, the province has to negotiate with the tribes when it comes to that private land.
Justice Young was unequivocal when evaluating the intersection of fee-simple lands with Aboriginal title claims. “The question is not whether Aboriginal title can exist over fee-simple lands but whether fee-simple interests can exist on Aboriginal title lands. In my view, the law has evolved, and the answer to that question is ‘yes,’” she wrote, adding later: “Reconciliation does not mean that Indigenous peoples must always sacrifice their right to their established interest in land. Fee-simple interests in this land are not superior to Aboriginal title.”
British Columbia’s land-title system is founded on the principle of “indefeasibility” – once a title is registered it is considered legally final and irrefutable. According to one analysis of the decision by lawyers at Miller Titerle and Company, this decision “confirms that the assumption [of indefeasibility] no longer holds when Aboriginal title is established.” Consequently, they write, “the province’s authority to grant land is not absolute. Where those grants intersect with proven Aboriginal title, they are constitutionally vulnerable.”
The decision raises other questions. The court accepted that Aboriginal title can apply to submerged property, which challenges the long-held belief that such areas belong to the Crown by default. This, as the Miller Titerle analysis notes, could have huge implications for the way in which the government manages things like tidal zones and foreshore access.
The repercussions of this decision, if it is ultimately upheld by the highest court, are massive. It is understandable to be concerned, if you live in B.C., about what “title” now means. Indigenous groups have laid claim to vast swaths of the province, including land occupied by millions of homeowners. This decision could have draconian consequences, such as destabilizing the sanctity of title, with the obvious consequences that follow for one’s ability to own or mortgage land with security of tenure.
In terms of implications, it doesn’t get much bigger than that.