'Significant uncertainty': Canada's top court urged to weigh in on Aboriginal land claim | Daily Hive

'Significant uncertainty': Rustad urges Supreme Court of Canada to weigh in on Cowichan First Nation's land claim

John Rustad. (Conservative Party of BC)

Conservative Party of B.C. leader John Rustad is calling on the federal government to urgently refer a landmark court ruling on Aboriginal title to the Supreme Court of Canada, warning that the decision has created uncertainty around private land ownership across the province.

In a letter sent Tuesday to federal Justice Minister and Attorney General Sean Fraser, Rustad highlighted the Supreme Court of British Columbia’s recent consequential decision over land claims made by the Cowichan Tribes, which recognized aspects of Aboriginal title within southeast Richmond.

The case named the federal government, provincial government, City of Richmond, Vancouver Fraser Port Authority, Musqueam Indian Band, and Tsawwassen First Nation as defendants. All six entities opposed the Cowichan’s claims, with the two defendant First Nations going as far as disputing the existence and legitimacy of the Cowichan people.

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Earlier this month, Justice Young of the B.C. Supreme Court made the groundbreaking ruling in favour of the Cowichan Tribes, awarding Aboriginal title to less than half of the requested 1,846 acres of land in Richmond within Metro Vancouver, including parts of the Fraser River shoreline. The area’s current uses include major industrial businesses — such as an Amazon logistics warehouse — as well as port facilities, a critical newly built jet fuel facility for Vancouver International Airport, agricultural/farm uses, and some residential uses.

This is the first time a Canadian court has confirmed Indigenous title not only on land but also under water. The court also ruled that the Cowichan have a constitutionally protected right to fish in the Fraser River.

The trial was the longest in Canadian history — beginning in September 2019, and lasting for a total of 513 court hearings and trial days. Most of the evidence in the case spanned centuries, especially between 1790 and 1914. But because the written records were sparse and incomplete, the trial judge allowed oral history and expert opinion to be used as evidence.

cowichan tluqtinus claim area southeast richmond

Cowichan First Nation’s claimed area in southeast Richmond. (Google Maps)

Cowichan First Nation’s claimed area in southeast Richmond. (Supreme Court of B.C.)

The decision is historic, but it also triggered immense uncertainty.

By saying that Aboriginal title can override Crown land grants, the ruling raises big questions about how Indigenous rights and private land ownership can exist side by side. Experts warn it could affect property rights and development projects in B.C., while Indigenous leaders see it as an important step toward reconciliation.

Rustad said the ruling raises serious national questions about whether Aboriginal title and private land ownership can legally coexist.

“On one hand, the judgment suggests that Aboriginal title enjoys priority over private ownership,” he wrote. “On the other hand, the judge declined to make a specific declaration about privately owned land, while making declarations under publicly owned land held in fee simple. The path to reconciling these two positions is not obvious.”

Premier David Eby has already indicated that the province will appeal the decision in a B.C. court. But Rustad argued that the issue goes beyond a single case and requires guidance from Canada’s highest court. He urged Fraser to invoke Section 53(2) of the Supreme Court Act, which allows Prime Minister Mark Carney’s federal cabinet to refer important legal questions directly to the Supreme Court of Canada.

Rustad warned that uncertainty over land rights could destabilize British Columbia’s economy at a time when the federal government has been emphasizing the need to move ahead with major resource projects.

“The province’s land ownership system now operates under uncertainty, and the already difficult investment climate will be further destabilized,” Rustad wrote.

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