A company with major landholdings in the area covered by the landmark Cowichan Tribes Aboriginal title claim is in court this week, arguing a “fundamental violation” of procedural fairness occurred when it wasn’t named as a party and given a chance to plead its case.
Montrose Properties wants the trial reopened and the judgment revisited, something rarely allowed in a Canadian court.
David Rosenberg, the lawyer for Cowichan Tribes First Nation, counters that doing so would amount to an abuse of process — arguing the company has long known about the case and had its chance. He also points out that the judgment does not take land from property owners, nor did the First Nation seek that outcome at any point.
“Their title continues, their legal interest has not changed,” Rosenberg told the court.
B.C. Supreme Court Justice Barbara Young’s Aug. 7 decision issues a declaration of Aboriginal title on parcels of land in Richmond once used as a seasonal fishing village. The judgment requires public parcels to go to the First Nation, while declaring that Aboriginal title coexists with fee simple title on the private lots — an unprecedented determination.
Private title is ordered to be reconciled by the province in “good faith” – although Young does not say how this should work, or what the outcome must be. She also declares that Aboriginal title is the “prior, senior right.”
The lawyer for Montrose Properties, Joan Young (unrelated to Justice Young), acknowledged that allowing the case to be reopened is unusual, but says the case has “historic consequences” and has already “profoundly impacted” the company’s right to exercise its interest as a landowner in the “fullest form.”
“Montrose’s position is that it is fundamentally unfair for the plaintiff, having failed to name them as a party, to be able to proceed to court and obtain a judgment which grossly imperils their existing rights,” she said.
Both the province and the federal government supported Montrose’s application, seeking clarity on what it means for fee simple title and Aboriginal title to exist on the same plot of land.
“Uncertainty thus remains regarding how Aboriginal title and fee simple title are to coexist in practice pending successful negotiations or future litigation,” the federal government said in its written submission. “The application — if granted — would help provide clarity on that issue.”
Marie-Sophie Poulin, the lawyer for the province, told the court the B.C. government’s position is that fee simple title should mean exclusive use, and a declaration of Aboriginal title prejudices the approximately 150 private landowners not included as parties, which will likely give rise to further litigation.
Montrose talks of harm to interests, Cowichan Tribes warns against relitigation
Montrose’s business involves waste-disposal facilities and warehouses that Young says require large up-front capital investment. To succeed, she says the company needs to borrow off of these holdings, an arrangement that depends on the certainty of “indefeasible title.”
But Young says lenders have backed out on financing projects since the judgment was released, an impact the company did not see coming because this is the first time Aboriginal title has been declared over private property. She argues that this makes the case unusual enough to justify reopening it.
Rosenberg argues it would cause “real harm” to the administration of justice, and “real and continuing prejudice” to the Cowichan Nation, if the case were to be reopened.
After a 513-day trial, he says this would not be fair. “It would be inviting the court to revisit and relitigate issues that we fully argued and considered and decided, and that would amount to an abuse of the process.”
Citing other major title cases, he also argued that attempting to include every landowner would make the trial process “completely unmanageable.”
Rosenberg adds that, even though the Canadian government attempted in 2017 to file a motion to force the court to notify these landowners, which was rejected, the court in no way prevented the landowners from being notified informally. And he points out that nowhere in Montrose’s application does it say the company was not notified informally.
Yet, he continues, Montrose says it was “somehow surprised” by the decision, even though the record shows the company knew about the litigation.
“And so they come at this late day and come to court and say, now that we received the reasons for judgment on Aug. 7th, 2025, we realized we should have been there,” Rosenberg told the court.
A conflicting decision from another jurisdiction complicates matters
Then there is the issue of whether to consider other major judgments released since August.
Young points to a conflicting New Brunswick Court of Appeal judgment handed down this past December, which found that declarations of Aboriginal title must be limited to Crown lands.
The mention of this more recent case led the lawyer representing the Musqueam Indian Band to step in to make a statement, even though the Band took no position on Montrose’s application to reopen the case. Roy Millen, counsel for the Musqueam, said the decision would likely have accounted for that decision had it come first.
“But that can’t happen now,” he said. “It would be improper.”
The Supreme Court of Canada is considering taking up the New Brunswick case. This would make it relevant to B.C.’s case no matter what.
Even if Montrose’s application fails, the province and the other parties to the case have appealed, and the B.C. Court of Appeal will be forced to consider any eventual Supreme Court of Canada ruling on the New Brunswick case.
B.C. Attorney General Niki Sharma said the province’s overall position is that the case should be reopened so landowners should have had a fair chance to participate. But she also said the provincial government is awaiting the Supreme Court of Canada’s decision on whether it will take up the New Brunswick appeal.
There are clearly issues of national significance, she said, adding that “if the Supreme Court of Canada takes it up, then that’s the law of the land.”