B.C. Conservatives push for certainty on private property rights in fallout of Cowichan Tribes court decision

B.C.’s Opposition leader wants Canada’s top court to decide whether aboriginal title overrides private property rights.

B.C. Conservative Leader John Rustad has sent a letter to Sean Fraser, the federal attorney general, asking him to seek a reference with the Supreme Court of Canada over a recent B.C. Supreme Court on an Indigenous land claim.

The reference question would be whether Aboriginal title and fee simple private property rights can coexist, and if so, what that means for homeowners.

“The Cowichan court case has left private property rights in British Columbia – it has left a huge problem, whether it’s for people for their retirement sale of homes or whether it’s for investment, we need clarity,” said Rustad.

In the landmark case, the B.C. Supreme Court found the two rights do coexist, and that the Cowichan Tribes had established Aboriginal title over a swath of land in Richmond, some of which is currently private property, including businesses and homes. The province quickly announced that it was appealing the decision.

“The ruling could have significant, unintended consequences for fee simple, private property rights in B.C., and that must be reconsidered,” said B.C. Attorney General Niki Sharma at the time.

Rustad says the court process – which is expected to wind through B.C.’s Court of Appeals and eventually end up at the Supreme Court of Canada – needs to be short cut, to avoid a chilling effect on investment.

“We need that clarity quickly. We can’t be waiting years through the appeal process,” he said.

Sharma said Wednesday she doesn’t support a reference to the highest court at this point, given the appeal is going ahead and could muddy the waters.

“It’s the wrong time and the wrong method in my view. Right now we have what is an 800-page decision,” she said, adding the province intends to raise various grounds in an aggressive appeal.

When CTV News contacted Fraser’s office, it was referred to the Ministry of Crown-Indigenous Relations. That ministry provided a statement, noting: “The Government of Canada is reviewing the decision closely to assess the implications and determine how best to move forward. As this work is ongoing, the government is not in a position to comment further.”