The Cowichan Tribes land title claim was back in court on Friday as Montrose Properties seeks to have the case reopened.
Montrose’s lawyers say the company was not made aware of the implications of the case before it went to trial.
But the opening salvo related to this new application belonged to the First Nation.
Its lawyer wants to force the company and the province to reveal all correspondence the two parties had related to the case in the 12 years leading up to the final judgment last summer. A hearing was held in Victoria on Friday (Feb. 13) for the parties to argue over this document production application.
The Cowichan Tribes decision, released on Aug. 7, found the nation has Aboriginal rights and title in an area of land in Richmond, and that this title exists on both public and private land.
It orders the province to reconcile the title on the private lots in some way, but stops short of requiring the private land to be relinquished.
The claim was first filed in 2014. In 2017, the federal government, also a party to the case, filed to force the court to inform private landowners. The judge declined, but said any of the parties are free to inform property owners themselves.
David Rosenberg, the lawyer for the Cowichan Tribes, argues that communications between the company and province need to be revealed to properly assess what Montrose knew when, and why the company delayed filing to become a party to the case until now.
He argues that the company was fully aware of the case and that the province kept it informed through development permitting processes. The land in question includes warehouses and waste facilities.
“Explanation for delay is an important factor for the court’s consideration,” he said.
He provided some evidence related to this through communications between the Cowichan Tribes and the province. These include messages in which a representative for the nation was assured by a provincial official that Montrose would be informed of the case as part of a permit process for a new waste facility.
Rosenberg argues that if the company already knew about the case, reopening it now would be an “abuse of process.”
Joan Young, the lawyer for Montrose, first summarized her position on why the case ought to be reopened. She argues that, among other things, the claim was amended three times after the 2017 decision that declined to notify property owners. Despite this, that decision was never revisited.
She also argues that Montrose had no idea of the potential implications of the case, and that the company’s interests are “obviously impacted.”
Rosenberg contends that the impacts were always uncertain, and still are — that any actual repercussions for the landowners will only come through future litigation and negotiation. He says the nation never intended to, and still does not intend to, take the land away.
Young argues there are already impacts on how the company can use the land — that it may not be able to sell the land without the nation’s consent — and it would be an “injustice” not to let it argue its case.
She flips the script on Rosenberg, saying that allowing the Cowichan Tribes to argue that Montrose “should’ve known” about the case would in itself be an abuse of process.
Other parties to the case also attending the hearing included the province, the federal government, the Vancouver Fraser Port Authority and the City of Richmond.
The federal government and the port authority took no position.
B.C.’s position is a bit more complicated. Keith Bergner, the lawyer for the province, said that as a party to the case, the province’s stance is that these documents are not relevant. But as a public government, B.C. will agree to provide non-public, non-confidential documents.
These would otherwise be available through freedom of information rules, and the province is already in the process of gathering these documents.
Rosenberg doesn’t think this goes far enough. He wants more, pointing out the 13 exceptions allowed to freedom of information requests.
Richmond opposed the document disclosure request because it would further delay an appeal of the main decision that the city and others applied for several months ago.
Those appeals, which include one filed by the B.C. government, have not yet been granted.
First, this Montrose application to reopen the case must be settled. And before that, a decision on the documents.
Justice Young said she would provide her decision in writing. No timeline was given at the conclusion of the Friday hearing.