A mansion bordered by farmland along No. 6 Road and Country Meadows Golf Course, right, which fall within the boundaries of a Cowichan Nation Aboriginal title claim, in Richmond, B.C., on Aug. 22.DARRYL DYCK/The Canadian Press
The owners of a major industrial property whose land has been swept up in a B.C. Supreme Court decision granting title to the Cowichan Nation announced Thursday they are asking the court to reopen the case.
Montrose Properties, which saw the court apply Aboriginal title over about 300 acres of its industrial properties, is arguing it should have been a party to litigation that has an impact on its holdings.
Meanwhile, the City of Richmond is facing a tax revolt from landowners who believe their properties have been devalued by the court ruling.
In her Aug. 7 decision, Justice Barbara Young concluded that the Cowichan have Aboriginal title – a type of ownership claim rooted in ancestral use of land – to roughly 800 acres in Richmond, including private properties. That title is a “prior and senior right” to land, she ruled, over and above the “fee simple” title that private landholders have.
“A precedent that will follow from this case is that provincial Crown grants of fee simple interest do not extinguish nor permanently displace Aboriginal title,” she wrote.
B.C. Premier says Cowichan decision could have national implications
The decision has created uncertainty for residential and commercial owners in the title area, but the judgment has far greater reach. The precedents set are now being absorbed into treaty negotiations and courtrooms, while municipalities are being advised to consider the consequences for governance, such as who has the right to levy taxes on urban land declared to be under Aboriginal title.
Property tax expert Paul Sullivan is preparing a case to appeal property assessments on behalf of homeowners and industrial clients, arguing properties in the title area should have their tax bills lowered.
“I’ve talked to the biggest developers in our province who are my clients, I’ve talked to seasoned experts in valuation, and they’re all saying to me right now that these properties are not saleable. There’s no value,” said Mr. Sullivan, a Vancouver-based principal with Ryan, a leading global tax-services firm.
Mr. Sullivan’s clients currently make up more than half of the property owners in the claim area.
Observers anticipate lengthy legal process after B.C. Aboriginal land title decision
Montrose Properties 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. Ken Low, president and chief executive officer of the real estate firm, said property owners can’t wait for the Cowichan decision to move through appeals that could take seven years or more.
“As one of the many private landowners surprised by the impact of a case that we were not even party to, we have no choice but to take this step,” Mr. Low said in a statement, referring to his firm’s request to the court.
Last month, hundreds of Richmond residents attended an information meeting after learning for the first time, via a letter from the mayor, that the Cowichan case could have a significant impact on the title to their homes.
A session discussing the ruling at the annual Union of BC Municipalities conference in October was held in a meeting room packed with concerned municipal officials.
Cowichan Tribes lawyer says a treaty with B.C. could recognize Aboriginal and private land titles
The City of Victoria has a land claim filed in 2022 from the Songhees First Nation for three provincially owned parking lots worth $50-million. The city is supporting the nation’s claim.
“There is no doubt in my mind that the upcoming appeals and negotiations will generate further debate and decisions that may indeed have an impact on local government land-use decisions,” said Victoria Mayor Marianne Alto.
Lawyer Reece Harding, who specializes in local government issues, said beyond the questions of property rights, the ruling will also force municipalities to confront questions of regulatory rights.
“Who gets to zone and expropriate?” he asked. “Who’s the regulator now? Do they get to levy taxes now? Is it the City of Richmond, or the Cowichan? That question has not been asked. Nobody knows the answer to that right now.”
Elenore Sturko, the Independent MLA for Surrey-Cloverdale, pointed to a case where the Secwépemc Nation is seeking a declaration of Aboriginal title to all or part of its traditional territories, which include the City of Kamloops, Sun Peaks Resort, roads, railways and privately owned tenures.
Editorial: Set the rules for Canada’s title bout
She said that case, which has not yet made it to trial, is just “the tip of the iceberg.” She is calling on the B.C. NDP government to provide full disclosure to British Columbians on all notices of civil claim filed against the province in Aboriginal title claims, particularly over areas of existing private property.
“These decisions will have consequences going forward for other cases, and the public has, for the most part, been kept in the dark,” she said.
B.C. Attorney-General Niki Sharma said her government will file an application seeking to have Justice Young’s decision stayed until a higher court can hear multiple appeals. She said a key part of the application is the fact that private landowners such as Montrose were not given a chance to intervene. The city, the province and the federal government had asked the court to require the Cowichan to provide formal notice to affected landowners, but the court rejected the submission. (The judge said the governments could do so if they wished.)
In the meantime, Ms. Sharma is inviting those affected to contact the province. “I’ve asked my team of lawyers to reach out to figure out what’s happening on the ground,” she said in an interview.
Chris Roine, a partner with law firm Borden Ladner Gervais, specializes in Indigenous law. He noted there are half a dozen land-claims cases active in B.C. alone. “I’ve been fielding calls from banks, credit unions, title insurers, mortgage brokers, real estate agents and regulators asking, ‘What direction should we be giving on this?’ And I think everybody’s holding their breath,” Mr. Roine said.
Celeste Haldane, chief commissioner of the BC Treaty Commission, said she is concerned about a public backlash against treaty settlements created by the decision.
“If we look at how treaties have been settled, private lands are not on the table, and they never have been. Unfortunately, through litigation, that has now come to fruition.”