The ruling on whether the landmark Cowichan Tribes Aboriginal title will be reopened for additional arguments could end up as a case of who knew what when.
Montrose Properties wants to reopen the case, arguing that it is already being impacted financially despite being unaware of the looming consequences before the decision was released this past August.
The company wants to be able to submit evidence and reargue parts of the case. A hearing is scheduled in Victoria on Feb. 11 and 12.
But David Rosenberg, the lawyer for the First Nation, which opposes the Montrose application, is trying to put the brakes on. He wants to find out exactly what the province actually told affected landowners over the past decade-plus since the case was first brought, and is requesting all communcations with Montrose be disclosed.
B.C. Attorney General Niki Sharma says that the government supports Montrose’s application to reopen the case, and that property owners ought to have been informed.
“We’ve been pretty clear in our positions through the Cowichan case that we think that the third-party landowner should have had a hearing,” Sharma said on Tuesday, Jan. 27.
The Canadian federal government, also a party to the case, applied in 2017 to force the court to include landowners. On Sept. 6, 2017, B.C. Supreme Court Justice Jennifer Power decided the court had no obligation to do so.
But Power had also declared that nothing prevented any of the parties from informing landowners themselves.
“It was free for anyone, including British Columbia, Canada or Richmond, to tell everybody what was going on, to take out newspaper announcements, or put it on the radio, or go door-to-door,” Rosenberg said. “Everybody was free to do it if they wanted, and no one did it.”
Impact of decision on private property is still uncertain
In an Aug. 7, 2025, decision, B.C. Supreme Court Justice Barbara Young affirmed the Aboriginal title and rights of the Cowichan Tribes First Nation over an area of land in Richmond once used as a fishing village.
Young granted title over the public lands, and ordered the private, fee simple title lands be reconciled “in good faith” by the province through negotiation. The province and City of Richmond have appealed, and it is unclear at this stage if and how the application to reopen will impact the appeals that have already been filed in the case.
Nevertheless, the firestorm of worry over the rights of landowners in the area and the implications for private property beyond continues.
The Nation argues it has never sought to displace landowners.
“This goes back 150 years, where they’ve been trying to recover their land that was their ancient village site,” Rosenberg said. “But they have never sought to displace or eject private property holders.”
Montrose owns several hundred acres of property in the area, which includes distribution warehouses for Coca-Cola, Wayfair and Canadian Tire. No threats have been made to take the land away from the company, but Montrose claims that the uncertainty has already cost it millions of dollars in cancelled bank loans it planned to use for development.
The company argues that it was aware of the case before the final decision, but was unaware of the potential impacts on its land. It also contends that the claims in the case were altered several times after the 2017 Power decision.
“While Montrose was aware of the case and had general familiarity with it to the extent any member of the public could, at no point did it consider the interests of Montrose as a private landowner could be affected as they were by the reasons for judgment issued August 7, 2025,” the company’s court filing reads.
Montrose also points out that Power made it clear that nothing prevented the parties from informing landowners.
“No party took Justice Power up on that comment,” the Montrose filing reads. “No party provided notice to Montrose.”
What happens now
Lawyers met via video call with Justice Young on Tuesday morning to discuss Rosenberg’s disclosure request for all communications between the province and Montrose.
The judge has given the province and Montrose until Friday to state their position, with another call to be scheduled for Monday or Tuesday.
If they oppose the move, Rosenberg suspects the two February days set aside for the reopening application will end up dedicated to hearing the positions on whether more than a decade’s worth of communication between the province and property owners will be turned over.
The Ministry of Attorney General would not comment on the disclosure process while it is before the courts.
Rosenberg said the First Nation is seeking “clarity” about the communications between the company and government.
“Montrose and the province have been talking about the lack of notice that was provided, and we, as the First Nation, want to know what Montrose knew when,” Rosenberg said.