Montrose Properties is planning to appeal a recent B.C. Supreme Court judgment that ruled against the company’s application to reopen the Cowichan Tribes land title case and be added as a party.
“We are going to do everything we can to ensure our interests are heard, and our rights are respected,” said Ken Low, CEO of Montrose Properties, in a news release announcing the intention to appeal. “And we do not feel they have been to date.”
Justice Barbara Young ruled on June 29 that adding the landowner after the trial’s conclusion would be an abuse of process. Montrose now wants to take it to the B.C. Court of Appeal.
Reopening the case would mean revisiting Young’s Aug. 7, 2025 decision that issued a declaration of Aboriginal title on parcels of land in Richmond once used by the Cowichan Tribes as a seasonal fishing village.
It would also delay the various appeals of that main decision — every party has appealed, for a variety of reasons — from reaching the next level. No matter what happens in those appeals, this case is likely to reach the Supreme Court of Canada, eventually.
The August judgment grants the First Nation title to public land, a common ruling in these sorts of cases. But in a new and unprecedented determination, she also declares that Aboriginal title coexists with fee-simple title on private parcels of land.
The private land includes a golf course and homes, as well as several large warehouses and a waste facility that belong to one company — Montrose Properties.
This private title is ordered to be reconciled by the B.C. government in “good faith,” leaving it up to the province to work out what this means with the Cowichan Tribes.
The First Nation says it has no intention to make any attempt to take land away from fee-simple owners, but wants compensation of some sort.
Montrose complains it should have been added as a party to the case because, as Justice Young freely admits, there are still potential impacts for its property.
The company claims one of these is difficulty financing new development on its land in the area, which contains several large warehouses used by Wayfair, Canadian Tire and Coca-Cola, in addition to waste facilities the company operates itself under the name Ecowaste Industries.
But Justice Young contends that despite these indirect impacts, any direct impacts could only result from future negotiations between the Cowichan Tribes and the province.
Those should be treated differently and be the subject of separate litigation, she decided.
Furthermore, the judge agreed with the Cowichan Tribes lawyer’s contention that adding all private landowners to cases like this would be unwieldy. It could mean hundreds of defendants in some cases. Young says in her ruling it could “open the floodgates.”
And Justice Young also found Montrose’s application to join the claim was too late — that the company knew about the case while it was underway and ought to have applied before the 513-day trial concluded.
But Montrose argues it had no way to know Young would make a ruling affecting its property in this way, because no such ruling had ever been made before.
“It is disturbing that private landowners were excluded from this case given the finding and declarations the court ultimately made,” Low said. “We are left with no choice but to do everything we can to protect our rights and investments.
Montrose also argues that a recent decision in the New Brunswick Court of Appeal conflicts with the Cowichan decision. In that case, a panel of judges finds that Aboriginal title should not be declared over fee simple title because of the negative impact this could have on reconciliation efforts more generally.
While that decision is a preliminary judgment, and not a final determination, it still seems to put the New Brunswick claim on a collision course with the Cowichan judgment in the Supreme Court of Canada.
It is worth noting, however, that because the New Brunswick judgment was made after the Cowichan trial had concluded, it likely would not be considered at the B.C. Supreme Court trial stage if the case were reopened.
Montrose expects its appeal on party status to be heard before the general appeals in the case.
It will be up to the B.C. Court of Appeal if and when it is heard.