A property in Richmond, B.C., that appears to fall within the boundaries of an Aboriginal title claim successfully established by the Cowichan Nation.Nono Shen/The Canadian Press
On a stretch of the south arm of the Fraser River, in the Vancouver area, the Cowichan Tribes in centuries past had an annual summer fishing village, a place they defended with a warrior ethos against other Indigenous groups.
But in the mid-1800s, the Cowichan – whose home territory is on Vancouver Island – were displaced from that village as the British took control and, after British Columbia joined Canada, the land was sold over the years.
Today, the land is occupied by an array of owners. Part of the Vancouver Fraser Port Authority and other industrial operations are there. There’s a golf course and private homes with small farms, along with a span of infrastructure such as roads and dikes. In a Globe and Mail analysis of property assessments, land and buildings in the area are worth more than $1.3-billion.
On Aug. 8, the seeming solidity of land ownership was blown open by a major ruling from the B.C. Supreme Court that declared the Cowichan have Aboriginal title to the area in question. The lower court ruling vaulted unanswered questions in B.C. into the fore: what happens when Aboriginal title directly overlaps modern ownership of land under rights called fee simple?
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Justice Barbara Young noted that Aboriginal title is “a prior and senior right to land” and said the question is not what happens to Aboriginal title after fee simple title is in place. “The proper question is: what remains of fee simple title after Aboriginal title is recognized in the same lands?” the judge wrote.
The potential provincewide implications of the judgment led to an immediate and aggressive response from the B.C. provincial government.
After the court decision landed, Premier David Eby spoke of the crucial economic importance of clear title in property ownership, and last Monday the province announced it would appeal and seek a stay of the ruling.
Companies such as Canadian Tire, Euro Asia Transload and Westport Intermodal, which have operations on the land, did not respond to requests for comment.
Kash Heed, a Richmond city councillor and former provincial solicitor-general, said uncertainty has stoked anxiety among some owners in the area.
“They’re in a world of, ‘We’re not sure what’s going to happen to our property,’” said Mr. Heed. “Which they feel they rightfully own.”
The ruling, after an epic trial that spanned five years, made several other declarations beyond Aboriginal title. One was on fishing rights. Another said land titles held by the federal government and the city of Richmond were “invalid” – a finding the judge suspended for 18 months so the various sides could negotiate.
Private land titles were excluded from the declaration of invalidity but, regardless, now exist in a legal limbo.
The Cowichan this week said they do not aim to displace private land owners and have previously said they’d expect compensation from governments for private land on their territory.
The court decision effectively said the situation for private landowners is unchanged until it changes.
Private ownership is “valid until such a time as a court may determine otherwise or until the conflicting interests are otherwise resolved through negotiation,” Justice Young wrote. How that is figured out is “not a matter for this court to address.”
For now, some are in wait-and-see mode. Harry Hogler, a local resident and co-owner of the Country Meadows Golf Course, told The Canadian Press he wasn’t worried about the court ruling but declined an interview.
Geoff Plant, a former provincial attorney-general who worked on treaty negotiations and is a lawyer for one of the defendants against the Cowichan, said for a long time, private landowners in B.C. were told there was nothing to worry about, even as claims of Aboriginal title advanced in talks with government, in the courts and in court decisions.
“The average person should now start paying attention to this question more closely,” said Mr. Plant.
Negotiations are likely the best way forward, he said.
One example is last year’s deal between B.C. and the Haida Nation. It granted the nation Aboriginal title to all of Haida Gwaii, islands in the province’s northwest, while the Haida agreed to leave privately owned lands unchanged and under B.C. authority.
Indigenous rights expert and law professor Dwight Newman, at the University of Saskatchewan, said governments are in a challenging spot as they try to negotiate deals and defend cases in court. What happens next in the Cowichan case is “a giant legal question.”
In the appeal courts process, Prof. Newman said judges will consider a wider spectrum of legal thinking than at the trial level.
“Courts are going to have to come up with something that makes sense and that’s also practical and somehow tries to respect everyone’s interests,” he said.
The federal government has offered only minimal comment on the case. In a statement, the government said it is looking at the implications of the decision to “determine how best to move forward.”
Mr. Heed said the appeal courts will take a sharp eye at the initial ruling, which he argued was somewhat convoluted and disjointed.
“We know this is going to end up at the Supreme Court,” he said. “We are several years away from any finality on this.”