Richmond Mayor Malcolm Brodie argues that fee simple and Aboriginal title are incompatible, and that the uncertainty that has arisen could have a devastating impact on property interests.DARRYL DYCK/The Canadian Press
The City of Richmond has distributed letters to hundreds of property owners in the southeast of the British Columbia city warning them that a landmark B.C. Supreme Court ruling “could negatively affect title” to their property.
The letter, signed by Mayor Malcolm Brodie, says that the Cowichan Tribes v Canada land claim ruling, handed down in August, “may compromise the status and validity of your ownership.” The letter invites recipients to an information session to be held on Oct. 28, at Richmond City Hall.
The Mayor said in an interview that many affected property owners were unaware of the ruling and, once informed, became deeply concerned about what it might mean, prompting the information session.
“I think this is one of the most significant rulings in the history of the province, and maybe the country,” Mr. Brodie said Sunday. “I think it potentially could dismantle the land title system, certainly in our province, with ramifications across the country.”
Justice Barbara Young’s 863-page ruling, in what was billed as the longest trial in Canada’s history, said that the Cowichan Tribes “have established Aboriginal title” to roughly 800 acres in the city, as well as an Aboriginal right to fish for food.
Opinion: To recognize aboriginal title is not to abolish property rights, but to uphold them
It also declared private ownership (called fee simple title) and interests held by the federal government and the City of Richmond in the lands to be “defective and invalid.” Justice Young suspended this declaration for 18 months so that the Cowichan, federal government and city “will have the opportunity to make the necessary arrangements.”
The ruling said the plaintiffs do not seek to invalidate the fee simple interests of private landowners with this court action – a point that Robert Morales, chief negotiator for the plaintiff nations, reiterated on Sunday.
“The nations have always stated that they are not interested in, and not wanting to, displace the ordinary British Columbian from their land, understanding that that’s a pretty serious position to take,” Mr. Morales, who is a member of the Cowichan Tribes, said in an interview.
“But there are corporate interests that are part of what we’re disputing. Corporations, or the governments who have privately held land as a corporation or as a government, I think that’s a different issue.”
Editorial: Set the rules for Canada’s title bout
Mr. Morales said, as the case proceeds through the courts, the plaintiff nations will take a position on redress over what he called the unlawful taking of those lands.
“Government expropriated those lands from the First Nations,” he said. “Even though it was many years ago, they were still required to compensate. B.C. took a strong position that Aboriginal title didn’t exist and that they didn’t have an obligation to do that. So now they have to pay the price.”
The B.C. government and the City of Richmond are among those appealing the decision. Attorney-General Niki Sharma said the judgment must be reconsidered by a higher court because it could have significant, unintended consequences for fee simple private property rights.
Mr. Brodie argued that fee simple and Aboriginal title are incompatible, and that the uncertainty that has arisen could have a devastating impact on property interests.
Aboriginal title refers to ownership rights by Indigenous peoples to territory their ancestors traditionally lived on and never ceded. Courts have confirmed that it is constitutionally protected, giving Indigenous peoples jurisdictional authority over ownership and occupation, as well as the right to determine how the land is used.
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The City of Richmond was the only party that argued at trial that the post-Confederation Crown grants of fee simple interest issued over the area between 1871 and 1914 necessarily extinguished Aboriginal title. The court rejected the argument, finding that the Crown grants were made without constitutional authority and instead constituted an unjustifiable infringement of Cowichan Aboriginal title.
Mr. Brodie said the federal and provincial governments “basically conceded the point.”
“That is one thing that needs to be emphasized in public, that there is an expectation that any legitimate defence which can protect the people should be taken,” he said.
Ms. Sharma said her government understands the concerns and 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,” she said in a statement to The Globe and Mail on Sunday.
“Halting negotiations would put private property at risk by forcing more uncertain court decisions, and risks halting billions of dollars in economic activity that is supported by working together with First Nations.”
Court ruling on Indigenous claim creates uncertainty around land ownership
BC Conservative Leader John Rustad wrote to Premier David Eby on Sunday citing Mr. Brodie’s letter to residents, saying the ruling has created “immediate and serious uncertainty about the security of private property ownership” in the province.
“You dismissed these warnings, including during the leaders’ debate last year when you said, ‘Nothing could be further from the truth,’” Mr. Rustad said, referring to the B.C. election lead-up. “What British Columbians were told could never happen is now unfolding before their eyes.”
The Cowichan Tribes, whose home territory is on Vancouver Island, in centuries past travelled en masse to the area on the south arm of the Fraser River, where they had an annual summer fishing village. They were displaced from the village in the mid-1800s as the British took control and, after B.C. joined Canada, the land was sold over the years.
The land today is occupied by an array of owners. Part of the Vancouver Fraser Port Authority and other industrial operations are there, along with a golf course and private homes with small farms. A Globe analysis of property assessments found that land and buildings in the area are worth more than $1.3-billion.