B.C. Supreme Court Justice Barbara Young will not allow the Cowichan Tribes Aboriginal title case to be reopened for the private landowner Montrose Properties to be added as a defendant.
Permitting the case to be relitigated in this way would be an “abuse of process,” the judge found.
“Although Montrose did not have formal notice of the proceeding, it had knowledge of the proceedings, and chose not to apply to be added as [a] party until long after the conclusion of the trial,” Young wrote in her reasons for judgment, released Monday.
This means the court will not revisit Young’s Aug. 7, 2025 decision issuing a declaration of Aboriginal title on parcels of land in Richmond once used by the Cowichan Tribes as a seasonal fishing village. The Court of Appeal can now decide whether to hear the various appeals — there are several — and Montrose may be able to participate as an intervenor.
But lacking a stay order, the title declaration will now be implemented.
“At long last, the trial has concluded, and the hard work of reconciliation can get underway,” said Cowichan co-counsel David Rosenberg, in a Monday phone interview. “This means the return of government lands, and it also means the Province of British Columbia will have to negotiate with the Cowichan about private land.”
Montrose CEO Ken Low said in an emailed statement the company is looking at legal options and deciding on next steps.
“But we are not done, and private property rights must be protected,” he said.
The B.C. government says it is looking forward to the appeal at this point.
“The province will continue to argue in the appeal that the interests of private landowners must be considered by the court,” the Ministry of Attorney General said in an emailed statement.
Young’s August judgment grants the First Nation title to public land via a well-established legal standard, but in a new and unprecedented determination, also declares that Aboriginal title coexists with fee-simple title on the private lots.
The private land includes a golf course and homes, as well as several large warehouses and a waste facility that belongs to one company — Montrose Properties.
Private title is ordered to be reconciled by the province in “good faith,” although Young leaves it to the province to figure out how this reconciliation work must be done, or what the outcome must be.
She also declares that Aboriginal title is the “prior, senior right,” meaning it is a constitutionally protected right with more importance than a statutory right, such as private fee simple title. But despite it being declared senior, Young still allows that both those rights are valid on the same parcels of land, ordering the government to figure out what to do about it.
In a 2017 court decision made over the objections of the province and the federal government, Montrose and the other private landowners were not given official notice of the case.
Joan Young, the lawyer for Montrose (no relation to Justice Young), called this “profoundly unfair.” She argued the company is being impacted because it is facing issues financing development projects due to the decision, something the company couldn’t have known was possible because these types of decisions have not involved private land in this way before.
But Rosenberg, the lawyer for the Cowichan Tribes, argued that nothing prevented property owners from being notified unofficially and pointed out that a large, well-resourced company like Montrose had no excuse to claim it was unaware.
Montrose also had several development applications in process with the province that involved Indigenous heritage assessments. Rosenberg argued the court case would certainly have been disclosed in this process.
And Rosenberg contends the impacts facing Montrose are not direct, that the Cowichan Tribes First Nation does not attempt to take land away or require compensation from private landowners, but instead seeks to resolve the issues through negotiation with the province. Any future direct impacts arising from this negotiation could be addressed in fresh litigation, he says.
He also cites similar cases in which tenure holders or landowners aren’t included when there is no direct claim on their property because they are too numerous and doing so would make the proceedings chaotic and unmanageable.
The judge agreed with this and with Rosenberg’s arguments that Montrose knew about the case and had its chance.
Young rejects the Montrose application by writing that reopening the trial now would “open the floodgates” for private landowners to join a case that has already been argued, and would incentivize people in similar cases to take a “wait-and-see approach,” and only ask to be included if they don’t like the result.
“This sort of sprawling process, long after trial has concluded, would be inefficient, disruptive for the parties, and would not enhance the integrity of the administration of justice,” she writes.
Read More: Private property and reconciliation: What the Cowichan Tribes ruling could mean for B.C.
Read More: Hearing to reopen Cowichan Tribes case delayed, first to find ‘who knew what, when’