In what was billed as the longest trial in Canada’s history, the ruling represents a milestone in Indigenous reconciliation.DARRYL DYCK/The Canadian Press
A British Columbia First Nation has won a major court victory, with a judge declaring it has title to a portion of land in the Vancouver area that includes currently active industrial operations on the Fraser River.
Justice Barbara Young of the B.C. Supreme Court declared the Cowichan Tribes “have established Aboriginal title” to roughly 800 acres in the City of Richmond, as well as an Aboriginal right to fish for food. Her 863-page ruling – from a trial that stretched 513 days over five years, from 2019 to 2023 – was issued Thursday and published online Friday.
Opinion: How Indigenous peoples and the private sector can work together to get major projects done
The court ruling, in what was billed as the longest trial in Canada’s history, represents a milestone in the country’s continuing societal and legal reckoning of Indigenous reconciliation. The decision follows a line of similarly important rulings and there will almost certainly be future legal arguments in this case in the appellate courts.
“This is precedent setting,” said lawyer David Rosenberg, who is among the lead counsel for the Cowichan Tribes, in an interview on Friday. “This case has tremendous significance.”
In a statement Friday, the Cowichan Tribes said they saluted generations of their leaders who fought for the lands in question and their fishing rights on the Fraser River “ever since the Crown began its unauthorized alienation of our lands there in the 1870s.”
The Cowichan Tribes case, like many before it, is particularly complicated. Defendants included the federal government, the province of British Columbia, the city of Richmond and the Vancouver Fraser Port Authority – but also two other Indigenous groups: the Musqueam Indian Band and the Tsawwassen First Nation.
The case thus pitted regional Indigenous groups against each other. The Cowichan are based on Vancouver Island but in centuries past had an annual summer village on the Fraser River where they fished for salmon. The Musqueam and Tsawwassen have long lived around the Fraser River in B.C.’s Lower Mainland.
The Musqueam are upset over the court ruling. On Friday morning, they called it devastating and said it impacts their own title and fishing rights. The land in question is within the Musqueam’s traditional and unceded territory.
Chief Wayne Sparrow said in a statement the Musqueam are “extremely disappointed” that the Cowichan “would go against our shared Coast Salish protocols.”
“It was emotional,” he said, speaking of the legal battle in an interview. “We have a lot of family ties.”
The Musqueam are considering their next legal steps.
B.C. is considering an appeal. Premier David Eby, in a statement, said the province will also work toward a resolution in talks outside the courts with the First Nations involved. Mr. Eby said owning private property with clear title is key to the economy.
“We remain committed to protecting and upholding this foundation of business and personal predictability, and our provincial economy, for Indigenous and non-Indigenous people alike,” he said.
Alex Munro, a Vancouver Fraser Port Authority spokesman, said the port is reviewing the decision’s implications, alongside other affected federal government departments. Kim Decker, a spokeswoman for the City of Richmond, said it is too early to comment.
Mr. Rosenberg said this week’s ruling answers questions about privately held land in Aboriginal title cases that were left unresolved in a precedential case at the Supreme Court of Canada. In 2014, the court confirmed a trial judge’s finding that the Tsilhqot’in Nation, for whom Mr. Rosenberg was lead counsel, had established Aboriginal title.
The Cowichan claim involved about 1,850 acres and the court declared title on roughly 40 per cent of that.
There are some privately held properties but lawyers involved in the case say that, if the ruling stands, that land would not be affected until it was sold.
Justice Young declared the land titles held by Canada and Richmond 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 and use it as they see fit.
But Justice Young, a decade-long veteran of the court, suspended this declaration on land titles for 18 months so the Cowichan, the federal government and the City of Richmond “will have the opportunity to make the necessary arrangements.”
“Much remains to be resolved,” she wrote.
The land is largely industrial and is on the Fraser River in Richmond, across from Tilbury Island, south of Highway 91 and east of Highway 99.
Justice Young wrote that her declaration “will change a long-established status quo” and have significant impacts for Richmond and third-party lessees on the lands that Canada owns.
She said she was balancing the broader public interest and a respectful relationship between Indigenous and non-Indigenous peoples.
“A period to allow for an orderly transition of the lands is in keeping with the principle of reconciliation,” the judge wrote.