EXPLAINER: Cowichan Aboriginal title decision
Who, what, why, how, when and then some
Hello subscribers and other esteemed visitors to the page,
We’re going off road today with a special newsletter edition to help you unpack the 863-page, precedent-setting Cowichan Tribes v. Canada BC Supreme Court decision from last week. It’s a pretty important legal ruling, but also quite long and complicated so we did some heavy lifting for you. Below is a grazing of highlights and a platter of decent sources should you wish to delve deeper.
The big deal with this ruling is for the first time, a Canadian court found Aboriginal title co-exists with fee simple private property rights. Not only that, the judge kicked open the door to Aboriginal title superceding private property interests.
Madam Justice Barbara Young found the Cowichan tribes have Aboriginal title over about 800 acres of mixed industrial, private and public property, and offshore waters in Richmond, BC. Young further ruled that Richmond and the federal government property interests are “defective and invalid” and that Crown “exceeded its constitutional authority in issuing the Crown grants of fee simple interest and unjustifiably infringed the Cowichan’s Aboriginal title.” The court also found the Cowichan have fishing rights in the south Fraser River.
So, essentially, from the get-go governments had no right to grant property title to private and public interests because the land was owned by the Cowichan. The Coles Notes version is the Cowichan had a summer village on the land prior to Confederation and have been arguing for fishing rights and title to the land for a very long time.
How far back should we go
In an interesting aside, the Cowichan, now located on Vancouver Island and the largest First Nation in BC, was at one time known for its warring, slaving and fierce warriors. Such that they took over the land in question from other tribes. But apparently the judge wasn’t interested in going back that far to determine ownership.
Young also rejected that a finding of title for Cowichan title would disturb any other First Nations “as that area has been frequented by many Indigenous groups since time immemorial.”
All of which worked for the Cowichan people who reported “pure joy” with the court ruling. Unlike the Tsawwassen First Nation and Musqueam Indian Band, which have overlapping territory and were defendants in the case.
Joining them as defendants were the City of Richmond, the federal and provincial governments, and the Vancouver Fraser Port Authority in what was reportedly the longest trial in Canadian history, stretching 513 trial days.
To the argument by Richmond lawyers that “a declaration of Aboriginal title will destroy the land title system and the [Land Title Act], wreak economic havoc and harm every resident in British Columbia,” Young responded it was “not a reasoned analysis on the evidence.”
Ruling shakes confidence in property ownership
It’s only one judge’s ruling and it was a complex case, so it will be appealed. Despite the judge downplaying the impact, her decision has the potential to significantly upend property ownership as we know it in Canada. And just to provoke Terry Glavin, i’m going to call it a BOMBSHELL ruling.
Previously, Aboriginal title has been found on Crown land, but private property was always protected. So, the worry for some is precedent. When (not if) other First Nations successfully prove Aboriginal title, courts might similarly rule it can override private property rights elsewhere in B.C. Since there are more than 200 First Nations in the province, many with duelling territorial claims covering 95 per cent of the province, this ruling has shaken confidence in the security of private property ownership in B.C. and Canada.
Some argue this reaction is ill-informed and overwrought, and that the main issue is bringing justice to Cowichan who were wronged by B.C.’s early colony administrators. Others, such as the senior counsel representing the Cowichan, say private property owners needn’t worry as their land won’t be affected in the near term. Also that the process of buying and selling land on Aboriginal title probably wouldn’t change much beyond the extra steps to ensure Cowichan give consent to the sale and gain compensation from the Crown.
Either way, it’s a landmark decision
Regardless of your interpretation of the court decision, legal recognition of Aboriginal title co-existing with private property is landmark. And it has unleashed a hurricane of uncertainty as legal experts, pundits and politicians grapple to understand the consequences of the decision.
BC Attorney General Niki Sharma was quick to announce her government will appeal the decision, saying she has to defend the Land Title Act because it has been the underpinning of private property rights in the province for more than 100 years.
Did governments ‘pull their punches’ in court
But some wonder what the substance of that appeal will be, given the BC government may have “pulled its punches” in the Cowichan court case.
Back when David Eby was Attorney General, he issued a directive to ministry lawyers instructing them not to argue “extinguishment” of Aboriginal title. Right or wrong, it meant government could no longer argue, as Crown had previously, that Aboriginal title was nullified at Confederation. Because to do so would be incompatable with the BC NDP’s intentions for reconciliation as interpreted through the lens of the UN Declaration of Rights of Indigenous Peoples (UNDRIP). The federal government issued a similar directive to its lawyers not to pursue the extinguishment argument.
In the words of Indigenous activist group, the BC Indian Chiefs, “Aboriginal Title to lands and resources existed at the time that the Crown asserted sovereignty. This Title was never extinguished. This is why Crown title is uncertain and remains subject to Aboriginal Title.”
Fee simple property title ‘unsettled’
Judge Young conceded that the legal question of fee simple property title and Aboriginal title co-existing was “unsettled,” but ultimately gave a timeframe to the provincial and federal governments to negotiate in good faith “reconciliation” of various private and public property interests with Aboriginal title. Basically, resolve the competing title interests in a manner that does “honour to the Crown.” One of the defendants’ litigators suggested one possible means to do this might be for Crown to expropriate the private land and give it to the Cowichan.
Lawyers generally welcome the chance for government to negotiate title and other terms rather than have declarations imposed on them by courts. But the prospect of BC negotiating on behalf of Crown worries at least one Indigenous law expert, who said leaving title negotiations to the BC NDP will make the situation worse.
Secret land use agreements break legal precedent
That’s because the Eby government has already broken legal precedent by recognizing Aboriginal title and signing a slew of land use agreements – including giving “essentially title” over provincial parks – without nations having to prove their title claim in court. The BC government has also transferred Crown land, and granted joint, and even sole decision-making on land use to First Nations. And it has done all this in secrecy, without consent of the public.
Last year, the Eby government attempted to bring forward Land Act amendments proposing statutory decision-making for Indigenous nations, otherwise known as a veto, but had to withdraw it following public backlash. Then, during the October 2024 televised election leaders debate, Eby said his government wouldn’t reintroduce the Land Act amendments because “we need to make sure that we have the confidence of British Columbians in doing this critically important work.”
Once elected, by the barest majority, his government charged full steam ahead reviving the abandoned Land Act amendments via a flurry of land use agreements without informing the public.
One of those land use deals was with the shíshálh Nation on the Sunshine Coast, but Eby and his ministers neglected to tell the public until after the 2024 election. It’s all part of a recurring pattern of behaviour on the land use file, which venerated political columnist icon Vaughn Palmer dubbed “two-faced.”
Whether a fan or foe of the BC NDP government’s reconciliation strategy, the Cowichan court ruling will undoubtedly inject uncertainty into the process. The added risk will reverberate across an already weakened British Columbian economy and cause unknown ramifications to a core tenet of any democracy – the surity of land ownership without encumbrance.
Cowichan decision inevitable
The Opposition calls the Cowichan court decision an inevitable outcome of BC NDP reconciliation efforts that have rushed too far, too fast, and have now ballooned to threaten homes and businesses. All without a public mandate.
BC Conservative leader John Rustad, a former BC Liberal minister of Aboriginal affairs and reconciliation, says Indigenous title and private property rights can’t co-exist overtop one another. “Losing private property rights on your home, your land… is wrong – reconciliation cannot be achieved by taking rights away from one group and giving them to another.”
As for legal experts – they are all over the map, from warning about apocalyptic outcomes to brushing aside the ruling as an evolution of Aboriginal title that still requires negotiation and compensation.
It’s not over ‘til it’s over
The case is far from over. It’s expected to eventually wend its way through the BC Court of Appeal, then the Supreme Court of Canada in a process that will take many years. In the meantime, the BC Supreme Court gave the government 18 months to sort out a deal with the Cowichan Nation. The province has already said it will ask for that timeline to be set aside, pending the outcome of the appeal.
The judge was right about one thing – there’s a lot of unfinished business in this province. The lawyers are going to be busy – go to law school, kids!
For now, cast your eyes to the curated list below for all you needed to know but were afraid to ask about this important case. If you can’t find the answers you seek in this newsletter, you may have hit the ‘uncertainty’ wall pundits are talking about!
Thanks for reading, and be sure to subscribe. Support independent journalism – Huzzah!
- Fran Yanor
Northern Beat Roundup
Buckle up for reconciliation everyone, it’s gonna be a bumpy decade
Reconciliation’s lofty rhetoric is colliding head-on with messy legal realities, and the result is a decade likely to be chaotic, contentious, and for many, downright uncomfortable. Governments’ well-intentioned moves are unravelling amid confusion, litigation, internal divisions and property-rights upheavals, and if they don’t get it together soon, this ride’s not just bumpy — it could get ungovernable, writes Geoff Russ. [Read More]
Letting the Eby government negotiate Aboriginal title is perilous
Legal expert Geoffrey Moyse warns that letting Premier David Eby’s government lead Aboriginal title deals is reckless politics cloaked in progress. Declaring title by political fiat, without solid legal proof or transparency, risks undermining property rights, eroding public trust and setting British Columbia on a dangerous, divisive path. [Read More]
More on the Cowichan Nation Aboriginal title legal decision
Full decision
It’s more than 800 pages long, but if you want to read the full ruling by the BC Supreme Court in the Cowichan Tribes v. Canada case you can find it here.
Full interviews
Radio stations CKNW and CBC conducted several informative interviews over the past week, letting the major players in the case have their say about the potential impact and outcomes. They are downloadable to listen to as podcasts, and highly recommended:
Former BC attorney general Geoff Plant, litigator for Tsawwassen First Nation
Woodward & Company David Rosenberg, senior counsel for Cowichan Nation
BC Attorney General Niki Sharma, on government’s appeal of the decision
Musqueam Chief Wayne Sparrow, reaction to the Cowichan Nation decision
Punditry
Political commentators and analysts had this to say:
Vaughn Palmer on CKNW Mornings with Simi: “[Justice Young] says once Aboriginal title has been recognized in British Columbia, there’s a very valid question of what remains of private property title in BC… And I think if this is the diretion we go in BC, I think public support for reconciliation will fray very, very quickly.” Many Indigenous people are not happy with this decision either, he adds.
Caroline Elliot writes that the ruling leaves Aboriginal rights constitutionally guaranteed, but leaves property rights out in the cold.
Gary Mason calls the repercussions of the decision “massive” and says it threatens to destabalize the sanctity of title over land, security and tenure.
Andrew Coyne takes a different view, saying the ruling is not an end to private property rights but merely an extension to include Indigenous peoples who have had their historic property rights denied.
Terry Glavin, says this decision is correcting a historial wrong. He urges calm, writing that people should not “set their hair on fire” and that governments may still negotiate a solution to the title issues.
Robin Junger, lawyer, former deputy minister and former chief provincial treaty negotiator, writes that both provincial and federal lawyers were hamstrung by government directives that forbid them from arguing a key legal point that Aboriginal title rights were “extinguished” when private property titles were granted by the province.
Fraser Institute’s Bruce Pardy, a professor of law at Queen’s University, says legal rights should not depend on a person’s lineage, Indigenous or otherwise.
The Hub’s interview with law professor Dwight Newman says the unclear consequences of the case could constitute Aboriginal ownership of private lands.
Jamie Sarkonak delivers a deeper dive into the the “land back” court decision and the $500 million, 800-acre area now recognized as Aboriginal title land.
Stefan Labbé gives a good overview of the court case, the land now on Aboriginal title, and BC government’s appeal of the ruling.
Legal analysis
Lawyers who read and analyzed the full ruling also weighed in on the decision, largely trying to explain the potential impact on the public:
Cassels writes that provisions of the Land Title Act do not shield or protect fee simple estates from Aboriginal title claims, because the judge ruled “Aboriginal title lies beyond the land title system in British Columbia.'“
Woodward & Company, representing the Cowichan Nation, was celebratory. “We are honoured to have delivered transformative change for the Quw’utsun Nation in this era of reconciliation and decolonization.”
MLT Aikins called the court ruling “a landmark decision in the evolution of Aboriginal law in Canada.”
Miller Titerle & Co questioned the implications of the recognition of Aboriginal title on submerged land and noted the ruling upended the status quo: “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.”
SMS Law focused more on the consequences for the City of Richmond, noting “BC’s vesting of Richmond with fee simple interests and the soil and freehold of highways, are also unjustified infringements.”
Mulligan Defence Lawyers featured an audio interview with Michael Mulligan who observed the legal system ultimately depends on public acceptance: “If I tell you that the house you worked for and paid for is no longer yours, I don’t know that that’s generally going to be accepted.”
Bonus
Quote of the Week:
“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,’” - BC Supreme Court Justice Barbara Young, in her Cowichan Nation ruling.
Closing
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The court finding that 19th-century land grants were "defective" effectively says the Crown has been issuing bad paperwork for 170 years. It took 513 days of litigation to confirm what the colonial records from 1853 already showed. Ottawa often hides these risks in the fine print of the Public Accounts, but this ruling forces them to finally put a real price tag on that inaction.