B.C. Supreme Court Justice Barbara Young has ordered the province and Montrose Properties to turn over all communications that could relate to the Cowichan Tribes land title case before she will hear arguments by the company in its petition to reopen the case and be added as a defendant.
Montrose argues it did not fully understand the impact the case could have on its rights as a landowner, and that it wasn’t adequately informed.
David Rosenberg, lawyer for the First Nation, successfully argued that any hearing on Montrose’s application to reopen the case ought to also examine what the province told the company about the case before it was decided on Aug. 7 to determine why the company delayed applying to become a defendant until afterward.
“Generally, I am satisfied that most documents of the type the plaintiffs seek are likely to be relevant to the Montrose Application and the issue of delay,” Justice Young wrote in the document demand decision, which was made on Friday, Feb. 27.
The Aug. 7 Cowichan Tribes judgment, also by Justice Young, found the First Nation had a claim to Aboriginal rights and title on a segment of land in Richmond. This piece of land has both private and public property.
In an unprecedented ruling, Young found Aboriginal and private, fee simple title exist simultaneously on the private land.
But Young did not order private land to be relinquished, nor had the First Nation sought this outcome. She instead orders title rights be reconciled “in good faith” through negotiation.
Justice Jennifer Power had decided against formally notifying private property owners affected by the case — Montrose and others — in 2017, but did not preclude them from being informally notified. Powers justified this decision by saying that any real impact on private property would come through future litigation and negotiation, which the private landowners can participate in.
Montrose argues the judgment is already impacting its rights as a landowner. The company owns several lots in the area, some of which have large warehouses on them used by companies such as Coca-Cola, Canadian Tire and Wayfair. It claims to have lost financing for some projects because of the uncertainty created by the case.
The company is an active developer in the area, so it has many communications with the province, including those related to archeological sites. Rosenberg argued in court that the province’s guidance on these matters would likely have included reference to ongoing litigation, such as the Cowichan Tribes claim.
Montrose contends it should not be compelled to provide communication predating the Aug. 7 judgment, arguing the case evolved after the Power decision and formal notice should have been given.
The province, meanwhile, only agreed to provide documents available through the freedom of information request process, but declined to turn over other confidential documents.
Young disagreed with Montrose and ordered the province to provide more.
“The kind of non-privileged, non-confidential documents that the plaintiffs may receive from B.C., in the nature of a response to a freedom of information request, with the usual attendant exemptions and redactions, are not a substitute,” Young wrote.
The government and Montrose have 14 days from the date of the decision to provide the documents. A case management session will be held within seven days of the documents’ delivery to the court to schedule the hearing of Montrose Properties’ main application to reopen the case.