In 1878, an agent for the province of British Columbia predicted the legal battle that surrounds the declaration of Aboriginal title for the Cowichan Nation today.<\/p>\n
Gilbert Sproat, a commissioner in charge of establishing reservations for Indigenous communities, sent a letter to his superiors urging them not to rush the business of handing out land grants to the province\u2019s new settlers, who were eager to snatch up the best lands the province offered.<\/p>\n
\u201cIt is extremely inconvenient to the province to have lands locked up from preemption or sale in fine districts, owing to the non-settlement of the Indian claims, but this is a necessity,\u201d Mr. Sproat wrote in a letter that became a key part of evidence in the B.C. Supreme Court record in the Cowichan case.<\/p>\n
The government had made that mistake with the Cowichan Nation, Mr. Sproat pointed out, by selling the land of their ancient fishing village on the lower Fraser River to white settlers without first settling the Cowichans\u2019 claims.<\/p>\n
That village is now buried beneath a portion of the City of Richmond, covered with homes, highways and industrial development.<\/p>\n
Last August, after a lengthy trial, the B.C. Supreme Court confirmed the province\u2019s land sales were illegitimate and that the Cowichan have Aboriginal title to their village, including land that is now privately owned.<\/p>\n
On Monday, B.C. Supreme Court Justice Barbara Young rejected an effort by the largest landowner in the area to have the case reopened. Montrose Property Holdings Ltd. argued they were never warned their property rights may be in question in the case and were not given a chance to represent themselves. <\/p>\n
But Justice Young concluded the issues Montrose wanted considered were already addressed during the five-year case and that anything they wanted to challenge could be done through an appeal. <\/p>\n
The uncertainty that Mr. Sproat flagged 148 years ago remains for the current landowners, both public and private, who are waiting for clarity of how Aboriginal title will co-exist with their fee simple titles. In Canadian law, fee simple lands have long been considered the highest form of private land ownership, but the Cowichan ruling\u2019s declaration that Aboriginal title is now a senior interest has sparked a national debate that has eroded public support for reconciliation with Indigenous peoples.<\/p>\n
Justice Young\u2019s Cowichan decision is built upon a series of landmark court decisions by the Supreme Court of Canada over the past 50 years that define what Aboriginal title is and how it is proven. Her ruling is widely expected to end up before the Supreme Court of Canada.<\/p>\n
For Shana Thomas, a Cowichan hereditary chief, the legal contest over private lands was inevitable. \u201cThis is the unfinished business of Confederation,\u201d she said. \u201cThe need to negotiate with First Nations prior to settlement was a requirement, and folks just continue to ignore it and pass it from one generation to the next.\u201d<\/p>\n
Here are the landmark rulings that laid the path for how we got here.<\/p>\n
Last fall, the City of Richmond and Mayor Malcolm Brodie held an information session to brief residents on the court decision. The Cowichan had not asked to recover the private fee simple lands, the judge in the case noted, they simply wanted a mechanism to negotiate over their title.<\/p>\n
Jennifer Gauthier\/The Globe and Mail<\/p>\n
Calder et al. v. Attorney-General of British Columbia, 1973 <\/p>\n
This case<\/a> ushered in the modern era of Aboriginal land law in Canada. For the first time, Aboriginal title was determined to be a legal question that the courts can adjudicate.<\/p>\n \u201cCalder recognized the long-standing, common-law right of what was called Indian title,\u201d said Robert Hamilton, a law professor at the University of Calgary and widely published scholar in Aboriginal title law. <\/p>\n He emphasized that the courts did not create Aboriginal title \u2013 these rights were already recognized in historic treaties.<\/p>\n The Nisga\u2019a Nation of the Nass Valley in northwest B.C. sought a declaration that their Aboriginal title had never been lawfully extinguished. <\/p>\n Like most First Nations in British Columbia, they had signed no treaty and although their traditional territories are large, they were pushed onto small reserves, disconnected from the land and natural resources around them.<\/p>\n Until 1951, First Nations in Canada were prevented from hiring lawyers or raising funds to pursue land claims. After that barrier was removed, the Nisga\u2019a launched their court challenge, at no small cost.<\/p>\n Open this photo in gallery:<\/a><\/p>\n The Nisga\u2019a, based in B.C.’s Nass Valley, fought in the courts more than 50 years ago to assert their title.Jesse Winter\/The Globe and Mail<\/p>\n They lost their case in both the B.C. Supreme Court and the Court of Appeal, and the Supreme Court of Canada was divided \u2013 three judges found the Nisga\u2019a had an enforceable claim to about 12,400 square kilometres of the Nass Valley, based on the Royal Proclamation of 1763 that recognized the rights of Indigenous peoples to unceded lands in their possession, which could only be ceded to the Crown. <\/p>\n Three judges dissented, and the seventh justice cast the deciding vote by tossing the claim out on a technicality. <\/p>\n Still, the majority agreed that Aboriginal title exists unless validly extinguished by the Crown. That is, Indigenous peoples owned and governed land before Canada existed, and those rights could only be stripped away if the Crown explicitly and lawfully ended their ownership, for example through treaties. <\/p>\n The ruling prompted prime minister Pierre Trudeau, who had refused to hear Aboriginal title claims, to change his mind. The matter was no longer a legal question, he said, but a political task to settle the issue of Aboriginal title over the unceded tracts of land in Canada.<\/p>\n Mr. Trudeau launched the comprehensive land claims process, but the ruling also came at a crucial moment in Canada\u2019s history, as the prime minister embarked on the long process to draft a new constitution. <\/p>\n The finished product, in 1982, includes Section 35, which recognizes and affirms existing Aboriginal and treaty rights of the Indigenous peoples of Canada. Calder helped set the table.<\/p>\n Open this photo in gallery:<\/a>Open this photo in gallery:<\/a><\/p>\n Before Queen Elizabeth II signed the new Constitution in 1982, First Nations had fought for language on treaty rights. Interpreting Section 35 would be a job for the Supreme Court.John McNeill\/The Globe and Mail; UPC<\/p>\n Guerin v. The Queen, 1984<\/p>\n This ruling<\/a> determined that Aboriginal title is a unique legal interest, grounded in an Indigenous peoples\u2019 historic use and occupation of their lands prior to European arrival.<\/p>\n Guerin revolved around Vancouver\u2019s prestigious Shaughnessy Heights Golf Club. The Musqueam Nation surrendered the most valuable part of its reserve land to the federal Crown in the 1950s so it could be leased to the golf club, and they were promised lease terms including revenue tied to fair market value. But the federal government secretly negotiated less favourable terms and failed to disclose these to the Musqueam for more than a decade.<\/p>\n In Guerin, the court also established that the Crown has a legally binding obligation to act with the best interests of Indigenous peoples in mind \u2013 a duty it breached in this case. <\/p>\n \u201cBefore Guerin, Aboriginal interest in the land was very vulnerable, something the Crown could either give or take away entirely at its pleasure, without any compensation,\u201d said Jim Reynolds, one of the lawyers who represented the Musqueam in this case. <\/p>\n \u201cGuerin recognized that Aboriginal title was something that was protected by the Canadian legal system, and First Nations could go to court to have their rights recognized and enforced. It\u2019s an important stepping stone.\u201d<\/p>\n The Cowichan trial rested on ample evidence of the use of their summer village site prior to Confederation, confirmed by Mr. Sproat\u2019s records among others. That is the basis of their legal interest \u2013 notwithstanding the current occupants, they had a pre-existing legal right to that land.<\/p>\n Justice Young expanded on Guerin in one of her most controversial and precedent-setting conclusions, that the Cowichan\u2019s legal right is senior to that of today\u2019s title holders. \u201cI find that the Cowichan\u2019s Aboriginal title, which is grounded in the prior occupation of the Cowichan\u2019s ancestors, and a constitutionally protected interest in land, is a senior interest in land vis-a-vis the fee simple titles which derive from the Crown grants.\u201d<\/p>\n R. v. Sparrow, 1990<\/p>\n This case<\/a> determined that the courts can supervise government actions to ensure they are not arbitrarily impacting or undermining Aboriginal rights. Sparrow established that the province\u2019s misconduct in handling the Cowichan lands 150 years ago did not extinguish Cowichan\u2019s title.<\/p>\n In 1984, Musqueam band member Ronald Sparrow was arrested for fishing with a net that was longer than permitted. The Musqueam went to court to argue that they retained the right to fish in their traditional territories, and that their rights to the land and its resources had never been extinguished by treaty. They argued, too, that any infringement on their fishing rights was invalid under Section 35 of the Constitution, unless justified as being a necessary measure of conservation.<\/p>\n This was the first major Aboriginal title case to come forward after the Constitution came into effect. The Constitution recognizes and affirms Aboriginal rights without defining them. In Sparrow, the Supreme Court of Canada set out criteria to determine whether governmental infringement on Aboriginal rights (which includes title) was justifiable, providing that these rights were in existence at the time the Constitution came into force. <\/p>\n The judgment determined that Indigenous rights cannot arbitrarily be restricted or abolished by governments. <\/p>\n That is key in Cowichan Tribes v. Canada (Attorney General)<\/a>: B.C.\u2019s Governor James Douglas had recognized that the Cowichan Nation had \u201cIndian settlement\u201d lands on the banks of the Fraser River in Richmond in the 1850s, but his agents sold those lands anyway. <\/p>\n \u201cI apply the Sparrow framework to the Crown grants of fee simple interest and find that they unjustifiably infringe Cowichan Aboriginal title,\u201d Justice Young wrote.<\/p>\n Open this photo in gallery:<\/a><\/p>\n The Cowichan Nation’s claims hinge in part on the actions of James Douglas, the figure in blue at left in this painting from a Hudson’s Bay Company calendar in the 1930s. Douglas, a fur trader, was also the first governor of B.C. when it was a Crown colony.Sammy Kogan\/The Globe and Mail<\/p>\n Delgamuukw v. British Columbia, 1997<\/p>\n Here, the SCC created the first comprehensive legal test<\/a> for proving Aboriginal title. It also tackled how to reconcile Aboriginal title with other interests \u2013 something that Cowichan has expanded on, but still does not fully explain.<\/p>\n \u201cWhat\u2019s really important here is the Supreme Court, for the first time, describes what Aboriginal title means, and basically it\u2019s a complete beneficial interest in the land,\u201d said Kent McNeil, professor emeritus at Osgoode Hall Law School, and a leading scholar on Indigenous rights. \u201cAnd the decision talks about how it can be proven, and that is through exclusive occupation at the time of Crown assertion of sovereignty.\u201d<\/p>\n The Gitxsan and Wet\u2019suwet\u2019en in northwestern B.C. argued that their Aboriginal rights and title had not been extinguished. The Delgamuukw ruling established that Aboriginal title is \u201cthe right to exclusive use and occupation of land.\u201d That precedent, layered over the Cowichan decision, is what gives rise to what Justice Young says is \u201csome uncertainty\u201d for landowners in Richmond\u2019s new Aboriginal title lands.<\/p>\n This is the benchmark set in Delgamuukw: The claimant group must show that it physically occupied the lands at the time the Crown first asserted sovereignty, which in British Columbia is deemed to be the signing of the Oregon Boundary Treaty of 1846.<\/p>\n After spending millions of dollars and more than a decade in court, however, the Gitxsan and Wet\u2019suwet\u2019en did not win title. The court ordered a new trial.<\/p>\n Justice Young rejected arguments that Cowichan title had been extinguished, pointing to Delgamuukw, which found the provinces do not have the authority to extinguish Aboriginal rights.<\/p>\n Open this photo in gallery:<\/a><\/p>\n Delgamuukw was still in the hearing phase when these Gitxsan dancers performed outside the Supreme Court in 1997. A few months later, the judges ordered a new trial in their case, and set a legal test for proving Aboriginal title claims such as theirs.Fred Chartrand\/The Canadian Press<\/p>\n Tsilhqot\u2019in Nation v. British Columbia, 2014 <\/p>\n The Tsilhqot\u2019in people won the first declaration of Aboriginal title in Canada,<\/a> opening the door for the Cowichan and others.<\/p>\n After a lengthy trial and subsequent appeals, the nation won recognition that they have the right to exclusive use and control of their land, and to reap the economic benefits flowing from it. The judgment also established that governments can only interfere with Aboriginal title in limited circumstances \u2013 if they have a compelling public purpose, and even then only after consultation with the title holder.<\/p>\n For the first time, Aboriginal title was no longer an abstract concept.<\/p>\n This decision, which covers roughly 1,800 square kilometres in B.C.\u2019s central interior, has its roots in a case launched in 1983, when the B.C. government granted a commercial logging licence in Tsilhqot\u2019in traditional territory.<\/p>\n Chief Roger William of the Xeni\u202fGwet\u2019in, one of the Tsilhqot\u2019in communities, went to court seeking a declaration prohibiting commercial logging to protect a section of old-growth forest in his people\u2019s traditional territories. Chief William later amended his lawsuit to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot\u2019in people.<\/p>\n Open this photo in gallery:<\/a><\/p>\n Roger William, in the red shirt, sought Aboriginal title to Tsilhqot\u2019in territory as part of a battle to prevent old-growth logging there.Darryl Dyck\/The Canadian Press<\/p>\n In 2007, BC Supreme Court Justice David Vickers found that occupation was established for the purpose of proving Aboriginal title, but on a technicality, he issued only a non-binding opinion<\/a>. He upbraided B.C. and Canada for their legal tactics. \u201cWhat is clear to me is that the impoverished view of Aboriginal title advanced by Canada and British Columbia, characterized by the plaintiff as a \u2018postage stamp\u2019 approach to title, cannot be allowed to pervade and inhibit genuine negotiations.\u201d<\/p>\n His ruling was largely overturned in the BC Court of Appeal, but Chief Justice Beverley McLachlin, of the Supreme Court of Canada, upheld Justice Vicker\u2019s findings \u2013 a vindication he did not live to see.<\/p>\n Justice Young referenced Justice McLachlin\u2019s test for determining title.<\/p>\n \u201cTo sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes,\u201d the SCC determined in Tsilhqot\u2019in. Title was not limited to settlement sites, but lands that were \u201cregularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control.\u201d<\/p>\n The SCC framed the settlement of Aboriginal title as a critical task for Canada: \u201cWhat is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society,\u201d Justice McLachlin wrote.<\/p>\n David Rosenberg was lead counsel for the Tsilhqot\u2019in at the SCC. He noted that in B.C. Supreme Court, the nation had included private property in their claim area. <\/p>\n \u201cBy the time the case got to the Supreme Court of Canada, the Tsilhqot\u2019in chiefs had to make a very difficult decision: Did they include fee simple and private property in the appeal to the Supreme Court of Canada?\u201d The decision was made not to bite off too large a chunk and risk losing. <\/p>\n Those lands were dropped from the claim, and the question of private lands would return in a future case that Mr. Rosenberg would also prosecute \u2013 Cowichan.<\/p>\n Open this photo in gallery:<\/a><\/p>\n The Cowichan ruling is widely expected to end up before the Supreme Court of Canada, led by Chief Justice Richard Wagner.Sean Kilpatrick\/The Canadian Press<\/p>\n Cowichan Tribes v. Canada (Attorney General), 2025<\/p>\n A clash between fee simple ownership and Aboriginal title<\/a> was always bound to end up before the courts, and had been posed years before Cowichan.<\/p>\n In 1995, the Aamjiwnaang First Nation sought to reclaim lands<\/a> that include much of the city of Sarnia, Ont. In that case, and in the recent Wolastoqey appeal court decision<\/a> in New Brunswick, the courts reached a different conclusion from Justice Young in British Columbia about whether Aboriginal title and private land rights can co-exist.<\/p>\n The Ontario Court of Appeal found that a large part of Sarnia was improperly surrendered by the Aamjiwnaang, formerly known as the Chippewas of Sarnia First Nation, more than a century ago, but that the social cost of returning the land would be unacceptably high.<\/p>\n New Brunswick\u2019s<\/a> Court of Appeal last December, in a procedural decision, ruled the Wolastoqey cannot seek a declaration of Aboriginal title over private property, because it \u201cwould sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.\u201d That case has yet to go to trial.<\/p>\n In the Cowichan case, Justice Young concluded after more than 500 days in court that the Cowichan Tribes are the rightful owners of about 300 hectares of land in Richmond. <\/p>\n \u201cThe 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 \u2018yes\u2019,\u201d wrote Justice Young.<\/p>\n In her judgment, Justice Young noted that the Cowichan hadn\u2019t asked for recovery of the private fee simple lands but rather a mechanism for negotiating the reconciliation of their Aboriginal title. <\/p>\n The Tl\u2019uqtinus village site has been developed in ways that would make it unrecognizable to the Cowichan of 150 years ago. <\/p>\n It is covered by highways and farmland, industrial warehouses and federal port facilities, a golf course and private homes. <\/p>\n The lands are divided in the Cowichan claim between publicly owned lands \u2013 which are held by the City of Richmond and the federal government and its port authority \u2013 and those private lands acquired by individual homeowners and businesses.<\/p>\n Chief Thomas, of the Cowichan Nation, said the future of the publicly owned properties is clear: \u201cThat\u2019s easy \u2013 the land is going to be transferred over to us, and we\u2019re going to own it outright.\u201d<\/p>\n For those privately owned businesses and homes, the province is on the hook to negotiate a settlement, even while it appeals the Cowichan decision.<\/p>\n Open this photo in gallery:<\/a><\/p>\n Richmond residents who went to last fall’s information session will have to wait a while longer for more clarity about next steps in the Cowichan case.Jennifer Gauthier\/The Globe and Mail<\/p>\n Prof. Hamilton says nobody involved in Canadian law around Indigenous rights and title should be surprised by the Cowichan decision. He has been one of the legal scholars writing on this topic since Tsilhqot\u2019in teetered on the edge of bringing it before the SCC.<\/p>\n \u201cEverybody knew that this was one of the possible outcomes, that scenarios would arise where Aboriginal title and private property would come into conflict,\u201d he said. Private property rights were always destined to get caught up in title cases; the only question was what path the court would take.<\/p>\n \u201cI think Justice Young has worked hard to structure a path that would lead to negotiated solutions,\u201d he said, adding a push was needed because government wasn\u2019t going to resolve the Cowichan\u2019s loss of its own volition. \u201cWhat in the past 150 years of experience leads you to think that governments are just going to willingly come to the table to negotiate, absent some kind of a legal lever that a First Nation holds?\u201d he asked.<\/p>\n Mr. Reynolds, part of the Musqueam legal team, says the higher courts may reverse the trial court\u2019s conclusions in the Cowichan decision, given the negative impact broadly on reconciliation that the decision has had.<\/p>\n \u201cThere\u2019s no shortage of technical legal arguments that could be used, in my view, to overturn Cowichan,\u201d he said. \u201cThe legal argument that led to where Justice Young ended up was strong, but it\u2019s a maze. Aboriginal law is so new. All the twists and turns haven\u2019t been worked out.\u201d<\/p>\n Chief Thomas agrees that there are still details to be determined. For her, though, the most important part of the court decision has already taken effect. The Cowichan are exercising their fishing rights on the Fraser River again. \u201cThe next day we were out on the water,\u201d she said. \u201cEverybody\u2019s freezer is full now.\u201d<\/p>\n Laws of the land: More from The Globe and MailOpen this photo in gallery:<\/a><\/p>\n Darryl Dyck\/The Globe and Mail<\/p>\n Indigenous voices on Canada\u2019s way forward<\/p>\n Tanya Talaga: No, Indigenous people are not coming to take Canadians\u2019 homes<\/a><\/p>\n Drew Hayden Taylor: Circular arguments about Indigenous identity are about as annoying as mosquitoes<\/a><\/p>\n Matthew Wildcat: What First Nations in Alberta should do about the referendum on secession<\/a><\/p>\n Bob Joseph: Canadians rightly fear being colonized by the U.S. But don\u2019t lose sight of the colonization that\u2019s already here<\/a><\/p>\n The Decibel podcast<\/p>\n How could the Cowichan case affect Indigenous land claims across Canada? Reporter Justine Hunter spoke with The Decibel<\/a> about that last fall, when British Columbians were still taking stock of their Supreme Court\u2019s ruling. Subscribe for more episodes.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"In 1878, an agent for the province of British Columbia predicted the legal battle that surrounds the declaration…\n","protected":false},"author":2,"featured_media":775327,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[901,888,902,879,877,903,49,48,876,895,896,891,878,875,46,549,295,894,887,914,880,881,893,889,890,884,904,885,909,910,44,912,907,911,905,908,882,898,899,714,897,906,865,61,900,892,886,883,913],"class_list":["post-775326","post","type-post","status-publish","format-standard","has-post-thumbnail","category-canada","tag-alberta","tag-arts-news","tag-bc","tag-breaking-news","tag-breaking-news-video","tag-british-columbia","tag-ca","tag-canada","tag-canada-news","tag-canada-sports","tag-canada-sports-news","tag-canada-trafficcanada-weather","tag-canadian-breaking-news","tag-canadian-news","tag-economy","tag-education","tag-environment","tag-federal-government","tag-foreign-news","tag-globe-and-mail","tag-globe-and-mail-breaking-news","tag-globe-and-mail-canada-news","tag-government","tag-life-news","tag-lifestyle","tag-local-news","tag-manitoba","tag-national-news","tag-new-brunswick","tag-newfoundland-and-labrador","tag-news","tag-northwest-territories","tag-nova-scotia","tag-nunavut","tag-ontario","tag-pei","tag-photos","tag-political-news","tag-political-opinion","tag-politics","tag-politics-news","tag-quebec","tag-sports-news","tag-technology","tag-travel","tag-trudeau","tag-us-news","tag-world-news","tag-yukon"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts\/775326","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/comments?post=775326"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts\/775326\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/media\/775327"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/media?parent=775326"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/categories?post=775326"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/tags?post=775326"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}