The province of B.C. is working on a program to provide a financial guarantee for Cowichan title land property owners.
This would entail backing mortgages and business loans for owners of land within the slice of Richmond’s Lulu Island where a First Nation was ruled to have an Aboriginal title claim.
B.C. Supreme Court Justice Barbara Young found that the Cowichan Tribes First Nation has title rights to the public lands in the area, and the right to “negotiate in good faith” to reconcile title on the private lots. The province and City of Richmond have appealed, but the private property owners say they are already being denied financing.
One of those landowners, Montrose Properties, has applied to reopen the case, arguing that property owners weren’t notified until after the judgment, so they were never able to file responses during the trial. This is also one of the main arguments the government plans to make as a basis for appeal.
“As one of many private landowners surprised by the impact of a case that we were not even party to, we have no choice but to take this step,” said Montrose CEO Ken Low in a Nov. 6 press release announcing the application.
A possible provincial guarantee program was first dangled in a speech by Premier David Eby before the B.C. Chamber of Commerce on Dec. 10.
“We are gathering evidence to support our stay application to pause the decision, and we are preparing work to be able to offer a guarantee to affected homeowners and business owners in the specific area named by the court so that they can continue to access necessary financing,” Eby said.
He told the Canadian Press on Dec. 12 that this program could provide as much as $154 million, with $100 million of that for Montrose’s loans alone.
The premier’s office later clarified Eby was using ballpark numbers based on existing mortgages and financing, and that a final number has not yet been set. The program could also end up costing nothing if lenders don’t actually alter their practices.
In a Dec. 16 written statement, Low said the province has not contacted Montrose with an offer of loan guarantees.
“In any case, loan guarantees alone would not likely solve the uncertainties that have been created here,” he said. “If the provincial government wishes to speak to us about how it might mitigate the impacts of the Cowichan decision on Montrose, we would of course be open to listening.”
Montrose owns several hundred acres of property in the area, including distribution warehouses for Coca-Cola, Wayfair and Canadian Tire on the Cowichan title lands. The company relies on borrowing money against these properties as part of its business model, according to court documents.
Montrose’s application to reopen the case argues that the company had worked for six years on a project with Enbridge and Fortis to build a landfill gas-capturing facility. Montrose said discussions on this multi-million dollar investment ceased after the judgment.
Similarly, Montrose spent approximately $7.5 million on a warehouse project and was in “advanced discussion” to borrow another $35 million to complete construction. According to an affidavit filed by Low, the lender pulled out “because of the issues raised by the judgment.”
Trevor Halford, interim B.C. Conservative leader, says that while it is right to do everything the province can to protect affected property owners, the creation of a loan guarantee program is essentially an admission of failure.
“We never should have been in this situation to begin with,” he said. “We are doing this because of the incompetence of this government.”
Halford blames provincial mismanagement of the case and the government’s reluctance to repeal the Declaration on the Rights of Indigenous Peoples Act, which is cited several times by Justice Young in her decision. He wants the legislature recalled to repeal the act. Eby has said he is open to amending it, but so far has provided few details.