B.C. government to appeal Aboriginal title ruling undermining fee simple ownership | Daily Hive

B.C. government to appeal court's Aboriginal title ruling undermining fee simple ownership

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

British Columbia’s attorney general says the Government of B.C. will challenge a precedent-setting court ruling that recognized the Cowichan Tribes’ Aboriginal title over a swath of waterfront land and water area on the Fraser River in Metro Vancouver, warning it could have sweeping effects on private property rights across the province.

In a statement released earlier this week, Attorney General Niki Sharma said the provincial government will file an appeal of the B.C. Supreme Court’s decision siding with Cowichan Tribes and their allied First Nations, and seek a stay to pause the judgment’s implementation until the appeal is resolved.

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This specifically deals with the court’s decision to grant Aboriginal title for under 1,000 acres of land in southeast Richmond, including deeming the Government of Canada and City of Richmond’s significant land interests in the area to be “invalid,” and putting Aboriginal title above the area’s other private fee simple ownership. From the outset of the trial, the Cowichan were asking for over 1,800 acres of land in the area, with the judge ultimately granting Aboriginal title for less than half.

This area sees heavy industrial uses, including port facilities for Vancouver Fraser Port Authority, a recently built critical jet fuel marine terminal and storage facility for Vancouver International Airport, and logistics and warehouse facilities, including for major businesses such as Amazon. The area’s periphery sees some residential and farm/agricultural uses.

Sharma said trial judge Justice Young’s decision last week raises “significant legal issues” that should be reviewed by a higher court. She cautioned that the ruling could have “significant unintended consequences for fee simple private property rights in B.C.”

“Our government is committed to protecting and upholding private property rights, while advancing the critical work of reconciliation. This case is an example of why the province prefers to resolve land claims through negotiation — where we can protect property rights directly — rather than risk considerable uncertainty through court decisions. We will continue to provide updates as this process moves forward,” she said in her statement this week in reaction to the court’s decision.

The attorney general said the province will provide further updates as the appeal process unfolds.

In a statement issued yesterday, the City of Richmond indicated it is considering its options for a potential appeal.

“The City of Richmond is disappointed in the recent B.C. Supreme Court ruling in the case of the Cowichan Tribes vs. AG Canada et al.,” reads the City’s statement.

“This decision has significant and negative far-reaching implications for the City of Richmond and others. Internal and external counsel are currently reviewing the lengthy court judgement. Richmond City Council will be considering the matter as a priority in advance of the 30-day deadline to appeal.”

The court ruling, issued last week, has drawn immense controversy and national attention for its potential to reshape the legal understanding of fee simple private property and the relationship between Indigenous title and private ownership in B.C. — and possibly across Canada. This is the standard form of private property ownership in the country.

Critics warn of potential ripple effects, with highly detrimental consequences for the economy, investment climate and confidence, real estate market, law, and overall political and social stability.

“In my view, Aboriginal title currently lies beyond the land title system in British Columbia and the Land Title Act (LTA) does not apply to it. It therefore cannot be said that a registered owner’s title under the LTA is conclusive evidence that the registered owner is indefeasibly entitled to that land as against Aboriginal title holders and claimants,” reads one of the key portions of Justice Young’s written ruling.

“The intention behind the land title system in this province is to provide certainty and security with regard to land titles. My conclusion on the inapplicability of the LTA to Aboriginal title does not otherwise detract from the notion that registered interests are, subject to prescribed exceptions, indefeasible under that legislation.”

In addition to the provincial government’s opposition, the other entities that fought against the Cowichan included the federal government, the City of Richmond, as well as the Musqueam Indian Band and the Tsawwassen First Nation. Both the Musqueam and Tsawwassen disputed the existence and legitimacy of the Cowichan Tribes.

All six entities were defendants in the trial, which was the longest in Canadian history — beginning in September 2019, and lasting for a total of 513 court hearings and trial days.

In the written ruling, Justice Young acknowledged that in making the decision, “the bulk of the evidence in this case spans centuries, particularly the period of 1790 to 1914. In the early part of this period, written records were sparse and incomplete.” But the judge ultimately determined there was still a “substantial body of evidence before me, including oral history, historical written records, expert opinion, and ethnographic 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.)

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