B.C. Attorney-General Niki Sharma says the Cowichan Tribes v. Canada ruling underscores that the courts are not the proper venue for the province to reconcile past damage done to various First Nations.DARRYL DYCK/The Canadian Press
B.C. is appealing the landmark decision of its Supreme Court that granted a group of First Nations on Vancouver Island title to riverside land in the mainland suburb of Richmond, saying the judgment raises questions about private-property rights.
Attorney-General Niki Sharma announced the appeal at a news conference Monday, saying the Cowichan Tribes v. Canada judgment must be reconsidered by a higher court because it could have significant, unintended consequences on the province’s system of real estate ownership, known as fee-simple title.
“We obviously have a very strong property title regime here in B.C. and what that does is protect the interests of property owners so when they own a title or they own property, that’s protected under our various legislation,” Ms. Sharma told reporters in Vancouver. “We believe that that needs to be defended in the court.”
Justice Barbara Young‘s 863-page ruling late last week − from a trial that stretched from 2019 to 2023 − rendered the fee-simple ownership and interests in the lands, held by Canada, the City of Richmond and the Vancouver Fraser Port Authority, “defective and invalid.”
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If the Cowichan’s win is upheld in future appeals, the Nation could eventually take control of the land in question and use it as they see fit.
But Justice Young suspended this declaration for 18 months on the existing land titles being declared invalid so the Cowichan, the federal government and the City of Richmond “will have the opportunity to make the necessary arrangements.”
The judge said the Cowichan did not seek to invalidate the titles to privately held land, which is owned by a mix of commercial and industrial businesses.
Instead, the decision called on the province to negotiate in “good-faith reconciliation” with the Cowichan − which includes the Cowichan Tribes, Stz’uminus First Nation, Penelakut Tribe, Halalt First Nation and Lyackson First Nation.
“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,” the justice wrote.
Ms. Sharma said the ruling underscores that the courts are not the proper venue for British Columbia to reconcile past damage done to various First Nations. Ms. Sharma said her government is reaching out to the Cowichan to try to come to a resolution.
“We’ve had examples of figuring out through agreement how we can resolve underlying disputes and claims while respecting all the rights at play,” she said.
Several hours earlier, at a news conference across the Salish Sea on Vancouver Island, Cowichan Tribes Chief Cindy Daniels said the Cowichan attempted to negotiate a treaty years ago with the province but B.C. showed no interest, so they launched the legal challenge.
“As stated in our 2016 declaration of reconciliation,” she said, “our land and resources objectives are to recover and restore our village and surrounding lands, re-establish our permanent residence and river access, re-establish our cultural practices including those that support food security and sustainability, realize economic development and re-establish the truth of our history in that region.”
The decision found that the Cowichan had established a permanent “post and beam village” on the grounds, just east of the portion of the Fraser River where Highway 99 now tunnels underneath. Then, from 1871 to 1914, B.C. began selling off this Cowichan land to settlers.
The Cowichan claim involved about 1,850 acres and the court declared title on roughly 40 per cent of that.
It was unknown Monday afternoon whether appeals will also be launched by the other defendants, which included the federal government, the City of Richmond and the Vancouver Fraser Port Authority as well two other Indigenous groups: the Musqueam Indian Band and the Tsawwassen First Nation.
The Musqueam and Tsawwassen have long lived around the Fraser River in B.C.’s Lower Mainland. Musqueam Chief Wayne Sparrow said immediately after the ruling was released Friday that his Nation was “extremely disappointed” that the Cowichan “would go against our shared Coast Salish protocols.”
David Robbins, lead lawyer for the Cowichan and one of 86 counsel representing all parties in the case, told reporters Monday that it was up to the provincial government to reconcile the existing private property rights with the ruling.
“Fundamentally, this case is about resetting their relationships with the Crown,” he said of his clients. “And so, with respect to the private fee simple that is still encumbering the Cowichan Aboriginal title, they sought a declaration that British Columbia has a duty, to reconcile that fee simple with the Cowichan Nation Aboriginal title through negotiations.”
In 2019, the Cowichan said they have no plans to eject the current property owners, but would expect to be compensated by governments for the private properties that lie within their territories.
Robin Junger, a lawyer focused on Indigenous and environmental law with McMillan LLP, said the ruling is so contentious because it finds that First Nations and private owners could both hold title rights to the same pieces of this land at the same time.
“It’s not limited to them, it’s not unique to them,” he said in an interview Monday.
“It’s any fee-simple home in British Columbia would be subject to the same rationale.”
He said he expects this case will be before the courts for some time.
“People should wait and see what the Court of Appeal and potentially the Supreme Court of Canada says before getting exercised about it,” he said.
With a report from The Canadian Press