Terry Glavin: A better response to B.C.'s Cowichan land ruling — calm down!

National Post

4 days ago

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It is customary for British Columbians to set their hair on fire whenever the courts remind them that they've been losing that bet as far back as the Calder case of 1973. This latest case involves a Cowichan fishing village on the Fraser River that Colonial Governor James Douglas had set aside from pre-emption that was swindled from the tribe only two years after Confederation by Richard Clement Moody, the former colonial commissioner of lands and works.
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Not satisfied with deliberately overlooking the presence of a village that was home to as many as 1,000 Cowichan people during the fishing season, and then selling it off illegally in the province's first rounds of land pre-emptions, Moody sold a big chunk of the old village site to himself via the connivings of a land agent.
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Moody had no legal right to buy the village lands, it should go without saying — he ended up selling roughly 2,000 acres to himself in 11 different pre-emptions on British Columbia's mainland — but the point is he had no right to sell the Cowichan land, either. The whole thing was illegal and unconstitutional.
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While the federally-owned lands are no small matter — about 260 hectares are under the jurisdiction of the Vancouver Fraser Port Authority — it's the City of Richmond that's been shouting the loudest about Judge Young's declaration. Richmond owns several lots and the entirety of the foreshore along the Fraser River at the site, which the judge described as 'essentially undeveloped land that Richmond does not use.' Richmond acquired the land over the years mostly as 'windfall' from municipal tax sales.
Judge Young said she agrees with Richmond's lawyers that a declaration of Aboriginal title creates a degree of uncertainty about the fee-simple private properties in the 2,000-hectare claim area. However, 'there is greater uncertainty if I do not declare that Richmond and Canada's fee simple titles and interests are defective and invalid.'
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It's the Cowichan victory in its fishing-rights arguments that are likely of greater significance, and it was because of those assertions that the Cowichan claim was opposed by the Tsawwassen and Musqueam nations. As for the precedent the decision sets, it's in Judge Young's explicit finding that a provincial Crown grant of fee-simple title is not sufficient to extinguish Aboriginal title. That's a power available only to the federal government, and only according to a fairly severe test of justification in the interest of a valid public purpose.
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'Neither Aboriginal title nor fee simple title is absolute,' the judge noted 'Aboriginal title and fee simple interests are not unqualified interests.' And they can coexist, or rather they already do coexist. The provincial Land Titles Act doesn't apply to Aboriginal title. It never did. Both Crown title and Aboriginal title can underlie private property without the world coming to an end.
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But how all this will come out in the wash will depend largely on the sophistication and the stamina of the provincial and federal governments. And that's a matter that's very much worth worrying about. If the Cowichan decision is handled badly, we may all end up paying very dearly. Still, it doesn't have to be this way. Where the pattern of settlement and the advance of Crown sovereignty failed in Canada, it was in the breach of an Aboriginal rights doctrine that stretches back to 1763 and in the slovenliness of politicians who preferred the easy way.
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