Worries about the future of private property ownership in B.C. are simmering ahead of an engagement session organized by the City of Richmond to discuss the Cowichan Tribes decision with local landowners.
And on Tuesday, Oct. 28, the day of the meeting, the various political sides were all jockeying for position to get their message out.
The morning brought a media briefing from the B.C. government on its legal position, a press conference by the attorney general to publicly make the case, and dire warnings from the leader of the Official Opposition.
“I think it’s, quite frankly, the most significant court case that’s ever come forward in modern history in terms of our province, because of how it can affect who we are as a province, how we operate,” B.C. Conservative Leader John Rustad said.
In the days prior, the Cowichan Tribes itself called out Richmond Mayor Malcolm Brodie, B.C. Premier David Eby and other politicians for making public statements arguing that the decision threatens private property rights.
Brodie organized the Richmond meeting to inform the roughly 150 affected landowners how the decision could “negatively affect” the title for their property.
“These statements are, at best, misleading, and at worst, deliberately inflammatory,” the Cowichan Tribes said in an Oct. 27 news release.
The Tribes argue the suit does not challenge the “effectiveness or validity” of title and “does not erase private property.”
Attorney General Niki Sharma plans to attend the meeting, but was not offered speaking time.
“We did think that it would be better if the province had an ability to tell the information from our perspective, to those owners,” Sharma said. “But, I’m going to be happy to attend.”
The case is far from settled. The appeals process is just getting underway, with the case headed to the B.C. Court of Appeals. Both sides have filed appeals, and the timeline for resolution will be measured in years. It will likely end up in the Supreme Court of Canada.
“It doesn’t matter what information is brought forward by the province or by anybody else; this uncertainty will last and will be there until this gets resolved through the appeal process,” Rustad warned.
The B.C. Conservatives are planning a rally before the Richmond meeting.
Rustad has called for B.C. to push for a Supreme Court reference decision, for the province to pause all negotiations with First Nations while the case is active, and for work to begin on a constitutional amendment to protect property rights.
The Cowichan Tribes first sued more than a decade ago to resolve a dispute over a section of Fraser River waterfront land in Richmond, where the nation once had a seasonal village.
Today, the land is occupied by private landowners, the City of Richmond, the Vancouver Fraser Port Authority and the federal government.
The case worked its way through the court process and eventually led to one of the longest trials in B.C. history – more than 500 days — and an 800-plus page decision.
At the crux of the current controversy are parts of the judge’s decision that rule the title to the government land is invalid, and the title for the private lots needs to be reconciled.
The judge ruled that both private and Aboriginal title exist on these lots, and this must be corrected. But the ruling stops short of offering a prescription for how to reconcile these.
This raises fears that Aboriginal title will eventually be allowed to supersede private, fee simple title, devaluing lands and disrupting the economic system as it is known.
According to the Tuesday briefing from the B.C. government on its legal arguments, the province argued in court that Aboriginal title and private title cannot exist on the same plot of land.
But instead of arguing that the private title “extinguishes” the Aboriginal title, B.C. argued Aboriginal title is “suspended” in favour of the private title.
Suspension means that a property owner keeps the title and can pass it on. It only reverts to the Aboriginal title if it ends up with no owner, such as would be the case if the owner dies without an heir.
Richmond, also a party to the case, argued for extinguishment, but the B.C. government deemed the suspension argument more likely to succeed.
The judge did not buy either argument, finding that both the Cowichan Tribes and the private owners have a claim on the land.
And despite the Cowichan Tribes contention that they were not aiming at private property, which has generally been sacrosanct in these types of cases, the fear is that a new precedent will be set.
“That is one of the key concerns,” Sharma said. “The interaction between Aboriginal title and the fee simple ownership and how that title is viewed with respect to that court decision in the future.”
The province plans to keep arguing for the validity and continuity of private property ownership.
“Once you have a fee simple title in B.C., it has to mean that those boundaries of that land is your land,” Sharma said. “That type of legal instrument is very fundamental to our province and, in fact, the country.”