Reverberations from the Cowichan Tribes land title decision continue to cause concern about the future of private property rights in B.C.
But just how much of that concern is warranted depends on who you ask. Some warn of the potential demise of private property ownership, while others say the impact is uncertain and the aim is not to seize land from its current owners.
Seeking certainty, B.C. Conservatives want to pause all reconciliation negotiations until the issue is settled and expedite the court process. The NDP government wants to stay its course and argue its case through the standard appeals process. And the B.C. Green Party wants everyone to “take a deep breath and just stay calm” instead of politicizing the issue and creating fear.
B.C. Conservative Leader John Rustad sent a letter to Premier David Eby on Sunday (Oct. 19) urging him to pause all negotiations with First Nations until the appeals process is complete. He wants the province to hasten that process by asking the Supreme Court of Canada to issue a reference decision.
“Our whole foundation of our society, foundation of our economy, is based on private property and the ability to be able to invest, to be able to grow assets as a family,” Rustad said. “We need to have this answer from the courts.”
Premier David Eby said that pausing negotiations with First Nations would cause economic “chaos” if the government were to put on hold efforts to include nations in liquefied natural gas and mining projects. He said that speeding up this process by asking for a reference decision risks a ruling that is academic and disconnected from the realities on the ground.
Eby’s government is appealing the decision in an attempt to ensure fee simple private property rights are protected, with the premier telling reporters private property rights are “the basis of how things work in the province.”
But he doesn’t want to seek a reference decision because that type of hearing does not rely on the trial record for the case involved. This would result in the court ignoring issues the government wants to use as a basis for its appeal.
“We don’t want a decision made in the abstract,” he said. “We want a decision made on the facts.”
What could be at stake
Cowichan Tribes — based in the Duncan area of Vancouver Island and B.C.’s largest First Nation — successfully argued in court that its nation has a right to a slice of land where it once had a semi-permanent village on the south shore of Lulu Island, within what is now the City of Richmond.
The B.C. Supreme Court decision, released on Aug. 8, says the Tribes have title rights to the public lands in the area, and have a right to “negotiate in good faith” to reconcile the title of the private lots.
Black Press Media reached out to the Cowichan Tribes for comment, but did not receive a response.
David Rosenberg, lead counsel in the case for the Cowichan Tribes, appeared last month at the Union of B.C. Municipalities conference in Victoria, and explained the rationale behind the Tribes’ position. He said the intention was to argue for the return of public land “wrongfully” and “scandalously” taken, but not to go after private properties.
“Those private lands were within the claim area, but the landowners were not parties to the litigation,” he said.
Despite this, Justice Barbara Young ruled on the private lots — although she leaves final determinations up to future negotiations.
“B.C. has a duty to negotiate with the Cowichan to reconcile their Aboriginal title with the private fee simple interests in a manner that accords with the honour of the Crown,” Young wrote. “A declaration of Cowichan Aboriginal title is a foundation and a catalyst for these negotiations.”
Rosenberg does not think this means private property owners can be forced from their land.
“It doesn’t follow from this case that private property holders will be ejected or lose their property,” he said.
Nonetheless, the City of Richmond and the provincial government — along with five other respondents in the case — have appealed the decision.
“The goal is upholding and protecting the private fee simple title,” Attorney General Niki Sharma said, summarizing the government’s position on Tuesday.
Richmond is holding an information session with area property owners on Oct. 28. In a letter to property owners, Richmond Mayor Malcom Brodie warned the decision “could negatively affect the title to your property.” Rustad cites this warning in his letter to Eby.
“Residents are looking for clear information and reassurance,” Rustad said.
Eby said he understood the anxiety of property owners, but when government lawyers tried to provide notice to property owners when the case was in court, the judge declined.
“It’s totally unacceptable,” Eby said. “This is one of the arguments we’re bringing forward on appeal.”
‘B.C. is Indian land’
First Nation leaders want reconciliation on the ownership of lands where no agreement was ever made with Indigenous peoples to allow settlement by outsiders.
“We have always maintained that British Columbia is unceded land, vis-a-vis the Royal Proclamation of 1763,” said Grand Chief Stewart Phillip of the B.C. Union of B.C. Indian Chiefs, referring to the foundational document for Crown-Indigenous relations in the future Canadian territories. “Which means that it still essentially belongs to First Nations. B.C. is Indian land.”
In working to reconcile this, Phillip says negotiations outside of the courts are the “preferred path.” Despite many decisions being handed down over the years that First Nations have celebrated, Phillip said waiting for courts to decide is still “rolling the dice.”
“It’s a gamble going into the white man’s court,” he said.
This means that stopping negotiations to await a court decision could be counterproductive.
“John Rustad’s call to cease all negotiations between governments and First Nations and British Columbia is utterly absurd,” he said. “It’s akin to asking all business and commerce negotiations and transactions to immediately stop until the [B.C. General Employees’ Union] strike is over.”
But he still does not want to subvert the standard process by skipping steps in the appeals process by asking for the Supreme Court of Canada for a reference decision.
Rustad told reporters on Monday that he thought the Supreme Court should rule on this, hoping the justices would decide that private property rights overrule Aboriginal title. He also wants a constitutional change to guide future decisions.
“I think we should start having this conversation, both in British Columbia and in Canada, about changing our Constitution and enshrining private property rights to make sure that the courts cannot lead us down this path of uncertainty,” he said.
B.C. Greens’ house leader Rob Botterell has argued on the side of First Nations in court as a lawyer. He stresses the individuality of each claim, dismissing the call for a reference decision and saying the Cowichan ruling could be interpreted narrowly.
“The Cowichan Tribes decision wasn’t a decision that said today, title applies all across the province, and your day-to-day life is impacted, and you can no longer carry on,” he said.
Botterell’s view is that reconciliation is a long, difficult process and requires the sides to sit down and negotiate agreements that everyone can support. And each one is different.
The Cowichan Tribes decision advances this by providing a mechanism for these negotiations, but does not determine the outcome, he said.
“The First Nations owned B.C., lock, stock and barrel, and then what happened was settlers arrived and asserted their interest,” he said. “And what we have not done, which has been done in other parts of the world, is reconcile those two interests.”