Cowichan title ruling could impact private property owners across B.C., lawyer says

A recent court is decision pitting Indigenous land claims against property rights – prompting an appeal and a fierce debate.

Fallout from a bombshell B.C. Supreme Court decision on Cowichan Tribes land title continues to reverberate.

“I think it’s one of the most significant decisions in Aboriginal law that we’ve had over the past 35 years,” said Thomas Isaac, an Aboriginal law lawyer who’s practiced in the field for decades and chairs the Aboriginal law department at Cassels Brock & Blackwell LLP.

The recent decision awarded the Cowichan tribes fishing rights in the Fraser River and title to a swath of land in Richmond, where the Vancouver Island-based First Nation previously inhabited a village in the summer.

The province is launching an appeal, announced Monday by Attorney General Niki Sharma. “The ruling could have significant unintended consequences for fee simple private property rights in B.C., and that must be reconsidered,” Sharma told reporters Monday.

The judge, in her 800-plus page decision, held that Aboriginal title and private property rights—known as fee simple—can co-exist, and that the Aboriginal title here trumped private property rights and that the Cowichan Tribes could repossess that land, says Isaac.

“It’s the first decision that really fundamentally provides a remedy to First Nations to take back private land,” he said.

The province is one of six defendants, along with the federal government, the City of Richmond, the Vancouver Fraser Port Authority, Tsawwassen First Nation and Musqueam Indian Band. Wayne Sparrow, Chief of the Musqueam Indian Band, expects it too will appeal the decision as well.

“My phone lit up like a Christmas tree when the decision came up from our membership and they all were saying, ‘we’re appealing this,’” he told CTV News on Tuesday.

The court found Aboriginal title on land held by the federal government, province and city. It also found title over private lands—including businesses and homes that aren’t subject to an order—but it is a finding experts say could apply to private property across B.C.

“The First Nation can go back to court and seek remedies like an ordinary land owner to have those landowners removed from their land,” noted Isaac.

The opposition B.C. Conservatives say the province should have negotiated this case, thereby avoiding uncertainty over private property rights and protracted appeals.

“I’m actually very concerned about the chill that this project, or this court case I should say, will put on British Columbia as an investable jurisdiction,” said B.C. Conservative leader John Rustad on Tuesday.

“We have to work, of course, with First Nations to make sure we work with this project, and we are,” said Energy Minister Adrian Dix on Tuesday when asked about the possible implications of the decision on future investments in B.C.’s energy projects.

The province says it is seeking a stay of the order, pending its appeal.