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Vancouver Sun
19 hours ago
- Politics
- Vancouver Sun
B.C. NDP acts fast in defence of private ownership of land
VICTORIA — The New Democrats were quick to respond earlier this month when a far-reaching B.C. Supreme Court judgment cast doubt on the status of private property in the province. 'Owning private property with clear title is key to borrowing for a mortgage, economic certainty and the real estate market,' Premier David Eby said after the decision was posted. 'We remain committed to protecting and upholding this foundation of business and personal predictability, and our provincial economy, for Indigenous and non-Indigenous people alike.' A daily roundup of Opinion pieces from the Sun and beyond. By signing up you consent to receive the above newsletter from Postmedia Network Inc. A welcome email is on its way. If you don't see it, please check your junk folder. The next issue of Informed Opinion will soon be in your inbox. Please try again Interested in more newsletters? Browse here. Next came Attorney General Niki Sharma. 'We disagree strongly with the decision,' she said in a statement on Aug. 11. 'British Columbia will be filing an appeal.' Both were responding an Aug. 7 decision by Justice Barbara Young, which recognized Aboriginal title for the Cowichan Tribes over a tract of land in Richmond that included some private property. Not the usual timing when the B.C. government loses an Aboriginal title case, as it has done more often than not in modern times. Typically the implications will be studied for weeks before a decision is announced on whether to appeal. Yet this time the decision was taken over a weekend, even though the attorney general had to acknowledge that her 'legal team' was 'still deep in its analysis' of the almost 900-page judgment. Already the government had decided the main basis of the appeal would be a defence of private property rights. The New Democrats had long maintained that reconciliation with B.C.'s 200 Indigenous nations would not encroach on the private property rights of the rest of the population. Now, for the first time, a court decision had cast considerable doubt on the status of fee simple land, to use the technical designation for private property. For as Young put it in the most widely quoted passage on the implications of her decision 'what remains of fee simple title after Aboriginal title is recognized in the same lands?' Precious little, judging from the preliminary comments of the B.C. attorney general. 'The ruling could have significant unintended consequences for fee simple private property rights in B.C., and that must be reconsidered. It will be amongst the arguments that we will be making in our application for appeal,' Sharma told reporters. 'We obviously have a very strong property title regime here in B.C. and what that does is protect the interests of property owners. So when they own a title or they own property, that's protected under our various legislation that's out there. We believe that needs to be defended in the court.' The province tried hard to defend private property rights during the marathon five years of proceedings leading up to Young's judgment. B.C. argued that 'a declaration of Aboriginal title would have a significant adverse effect on the private landowners who are not parties in this case, as well as all British Columbians.' Young conceded government lawyers mounted a 'vigorous' case to that end, even as she rejected most of it. Much has been made of the fact that the Cowichan Tribes excluded privately held lands from the claim they filed in court. B.C. saw that as a preliminary move, arguing Cowichan's long-term goal was to recover the entire site, including the private land. Young did not dispute the possibility. 'They are not pursuing exclusive use and occupation of privately owned lands in the Cowichan Title Lands at this time. What they may choose to do in future negotiations or litigation is speculative and does not alter my determination that declaratory relief is appropriate. Nor did she dispute that her declaration of Aboriginal title 'may give rise to some uncertainty for the fee simple titleholders and it may have consequences for their interests in land.' But that, too, was a matter for future negotiation, litigation, or both. In the meantime, private land owners should suck it up. 'To achieve reconciliation means that the status quo must sometimes change. In the process of that change some will bear the brunt,' wrote the judge. 'Sometimes the hardship will be borne by Indigenous peoples and First Nations, and sometimes it will be borne by non-Indigenous Canadians.' In passing, she also levelled a blast against the City of Richmond for its take on the implications of a grant of Aboriginal title to the lands in question. 'Richmond's submission that a declaration of Aboriginal title will destroy the land title system, wreak economic havoc and harm every resident in British Columbia is not a reasoned analysis on the evidence. It inflames and incites rather than grapples with the evidence and scope of the claim in this case.' Yes. But the judge having herself asked what remains of private property rights after her broad recognition of Aboriginal title, it is not much of a stretch to suggest these findings could inflame and incite the public. Indeed, I expect that is why the New Democrats rushed to announce the appeal. They are rightly concerned that public support for Indigenous reconciliation will be undermined if the courts add private property to the mix for negotiation. vpalmer@
Vancouver Sun
5 days ago
- Politics
- Vancouver Sun
Opinion: Did government pull its punches in the Cowichan Tribes court case?
Last week, the B.C. Supreme Court issued what has been called a bombshell decision, finding that fee simple title (private ownership) in certain land in Richmond is 'deficient and invalid' because of a finding of Aboriginal title. Attorney General Niki Sharma jumped immediately to announce an appeal after considering the nearly thousand-page decision 'over the weekend.' While many are quick to question the judgment, precious little attention is being given to what positions government actually took in the case. So while the attorney general said in a media release that 'we disagree strongly with the decision' and are '…committed to protecting and upholding private property rights,' this issue warrants a close look. A daily roundup of Opinion pieces from the Sun and beyond. By signing up you consent to receive the above newsletter from Postmedia Network Inc. A welcome email is on its way. If you don't see it, please check your junk folder. The next issue of Informed Opinion will soon be in your inbox. Please try again Interested in more newsletters? Browse here. One of the most important issues in this case was whether Aboriginal title was 'extinguished' when the fee simple title (private ownership) was created over the lands by the Crown in the 1800s. Yet the court expressly noted B.C. did not argue this, stating: 'B.C. does not argue extinguishment. Rather, B.C. says the content of any Aboriginal title rights that the Cowichan may have today is necessarily limited by the fee simple interests.' Similarly, the federal government also backed off this issue. The court stated: 'Canada initially pled extinguishment but abandoned its reliance on this defence in its amended response to civil claim filed Nov. 22, 2018.' If B.C. and Canada are in support of protecting private property rights, one may ask why they would pull their punches on this key legal issue. To answer that question, one should look at the little known 'civil litigation directives' that both governments have established to guide their lawyers in court cases involving Indigenous groups. The B.C. version of the directives was established by Premier David Eby when he was attorney general. They state : '… the attorney general of British Columbia has developed these directives on civil litigation involving Indigenous Peoples (directives), to ensure government lawyers take an approach to litigation that upholds the honour of the crown and crown obligations to Indigenous peoples and seek negotiated resolutions that uphold Indigenous human rights and Aboriginal rights … unilateral extinguishment is not consistent with the honour of the crown or with the UN Declaration (see Articles 8 and 28). The province will not advance arguments based upon the unilateral extinguishment of Aboriginal rights.' B.C. is not alone on this. The corresponding federal directives state : 'The principles discourage certain long-standing federal positions, including relying on defences such as extinguishment, surrender, and abandonment.… Reconciliation is generally inhibited by pleading these defences. 'When considering pleading these defences, counsel must seek approval from the assistant deputy attorney general.' There are various reasons why the court reached the conclusions it did in the Cowichan Tribes case, and one of the six defendants (the City of Richmond) did argue extinguishment of Aboriginal title (which was rejected). But one may also wonder what would have happened if the two senior levels of government had in fact stepped up to make similar arguments. In any case, before anyone gets too critical of the decision, they should understand that the court can only work with the arguments advanced. And when governments choose to self-limit arguments they are otherwise fully entitled to make, they should be extra cautious about criticizing the decision after the fact. Robin Junger is a former chief provincial treaty negotiator, former deputy minister of energy and is now a lawyer with McMillan LLP.
Vancouver Sun
12-08-2025
- Politics
- Vancouver Sun
How could Cowichan nations' title over parts of Richmond affect property rights?
The province announced Monday it is appealing the B.C. Supreme Court ruling that granted the Cowichan Nation title to large swaths of southeast Richmond and fishing rights in the Fraser River. 'We feel that this decision has significant legal issues, and we believe that those legal issues must be reconsidered on appeal,' Attorney General Niki Sharma said. 'This case is an example of why the province prefers to resolve land claims through negotiation — where we can protect property rights directly — rather than risk considerable uncertainty through court decisions.' Justice Barbara Young made the ruling following the longest trial in Canadian history, with 513 trial days over almost four years. At issue was 7½ square kilometres of southeastern Lulu Island and another two-thirds of a square kilometre along the Fraser River shoreline where the ancient Cowichan village of Tl'uqtinus was situated. Start your day with a roundup of B.C.-focused news and opinion. By signing up you consent to receive the above newsletter from Postmedia Network Inc. A welcome email is on its way. If you don't see it, please check your junk folder. The next issue of Sunrise will soon be in your inbox. Please try again Interested in more newsletters? Browse here. The land is owned by the federal government, the province, the City of Richmond, the Vancouver Fraser Port Authority, and various private companies and individuals. In her 863 page decision, Young ruled the federal and city governments' title in the area is invalid and that four of the five nations that make up the Cowichan — the Cowichan Tribes, Stz'uminus First Nation, Penelakut Tribe and Halalt First Nation — have the title to the land. 'It is because of our knowledge sharing protocols, the passing down of oral history and the teachings of our elders received, starting as young children, that we have been able to do this work to make our territory whole again,' Chief Cindy Daniels of Cowichan Tribes told a news conference in Duncan on Monday. Privately owned lands and the Vancouver airport fuel delivery project lands are not covered by the ruling, although Young wants the province and YVR to negotiate 'in good faith' with the Cowichan to reconcile its historical interests in those lands. The decision on the invalidation of land titles held by the federal government, the port and City of Richmond has been stayed for 18 months to allow time for title to be transferred. Here are four things to know: The Cowichan Nation says the granting of title will allow them to recover land that held the Tl'uqtinus village and engage in traditional practices such as ceremonies and fishing along that area of the Fraser River. 'Our land and resources objectives are to recover and restore our village and surrounding lands, re-establish our permanent residence and river access, re-establish our cultural practices, including those that support food security and sustainability, realize economic development and re-establish the truth of our history in that region,' said Daniels. 'These declarations are powerful reminders to colonial governments about the importance of reconciliation and addressing historical injustices. While not quick, the courts remain an option for First Nations when we are not heard and our rights are ignored.' The nation's lawyer, David Robbins, said the goal of the trial was not compensation but rather the reclaiming of Cowichan's traditional lands and Young's decision means any use of the land would have to take place with Cowichan's permission. The area includes a number of warehouses and port facilities on lands owned by the Vancouver Fraser Port Authority, including the Lulu Island Terminal and Westport Portside Terminals. It also home to an Amazon fulfilment centre and distribution services for Ikea. In court filings, Richmond had expressed concern that it could lose control of municipal infrastructure worth $100 billion, including dikes and other flood control mechanisms such as catchments and pump stations. It said it had been making plans to spend $46 million to improve the dike in the claim area. Young found that the Cowichan had used the Tl'uqtinus lands for fishing and hunting before their first contact with Europeans in the 1790s and lived there full time during the summer before heading back to Vancouver Island for the winter. They continued to maintain their village until the government started parcelling it up in 1871, despite Governor James Douglas having set it aside in 1859 to be turned into reserve land. It never became a reserve and by 1914 the land had all been sold to settlers without the Cowichan's knowledge or permission, which Young said infringed on the nation's Aboriginal rights. The Musqueam Indian Band and the Tsawwassen First Nation opposed the claims made by the Cowichan, arguing they infringe on their own titles and fishing rights, with Musqueam Chief Wayne Sparrow indicating he plans to appeal Young's decision. In a statement, Sparrow said the five nations making up the Cowichan had gone against 'Coast Salish protocols' and challenged 'traditional resource-sharing practices.' 'It is especially concerning that they resorted to the colonial legal system, which was not established to respect or reflect our traditional teachings,' he said. 'We are particularly disheartened the court didn't recognize the importance of oral history and traditional governance protocols which guide intercommunity relationships since time immemorial.' The Tsawwassen First Nation has yet to respond to the decision but in court filings also argued they had camped and fished on the lands claimed by the Cowichan and that the nation should not have sole access to the lands and waters around the historical Tl'uqtinus village site. Attorney General Niki Sharma told reporters on Monday that the province plans to appeal the decision after having time to review it over the weekend. The update comes after Premier David Eby had said last week that his government would try to negotiate a solution with all parties involved but was also considering an appeal. Our government is committed to protecting and upholding private property rights, while advancing the critical work of reconciliation,' said Sharma. 'We will continue to provide updates as this process moves forward.' Richmond Mayor Malcolm Brodie told Postmedia on Monday that the city's lawyers are still going through Young's decision and that he can't say too much now, but did express concern that the 'potential implications could be enormous.' The Vancouver Fraser Port Authority, said it is still reviewing the decision and 'will provide further updates at an appropriate time in the future.'
CBC
12-08-2025
- Politics
- CBC
B.C. to appeal landmark Aboriginal title ruling over Fraser River land in Metro Vancouver
Social Sharing The most recent Indigenous rights and title ruling in B.C. is heading back to court after the province released a statement saying it plans to appeal the decision. The Supreme Court of B.C. ruled last week in favour of the Cowichan Tribes on Vancouver Island, granting it fishing rights and Aboriginal title over a parcel of land on Lulu Island in Richmond, B.C. Niki Sharma, B.C.'s attorney general, said in a statement that the ruling has unintended consequences for private property rights that must be looked at by a higher court. "We disagree strongly with the decision. British Columbia will be filing an appeal and seeking a stay to pause implementation until the appeal is resolved," she said in the statement. "This case is an example of why the Province prefers to resolve land claims through negotiation — where we can protect property rights directly — rather than risk considerable uncertainty through court decisions." Sharma says that her team is working through what grounds of appeal the province has following the initial ruling. She says that better resolutions are found by sitting down with First Nations partners, and that her colleagues will be in contact with the Cowichan Nation, which filed the case. Ancestral village site Cowichan Tribes is a First Nation community, and the first named plaintiff in the case. Together with the Halalt, Lyackson, Penelakut, and Stz'uminus First Nations, the five First Nations make up the Quw'utsun (Cowichan) Nation. Cindy Daniels, chief of the Cowichan Tribes, says that the Fraser River was known as the Cowichan River before colonization, and that her people's presence in the Salish Sea was well known and documented by early settlers in the region. "We initially tried to move this work forward through the treaty process, but there was no openness to discussing Tl'uqtinus Village lands and Aboriginal rights to fish in the Fraser River at that table, so we pursued truth and reconciliation through the courts," she said. "While not quick, the courts remain an option for First Nations when we are not heard and our rights are ignored." Daniels says that she is pleased with the recognition of Cowichan Nation rights and title from the province, and that the area identified by the court is still being reviewed by the nation. Indigenous opposition The historic ruling comes with backlash from other First Nations whose land base is connected to the South Fraser River, including Musqueam and Tsawwassen. In an email to CBC News, the Tsawwassen First Nation says that the nation is aware of the B.C. Supreme Court decision, and that its legal counsel is reviewing it. In a news release, the Musqueam First Nation says that "Chief and Council are deeply offended by the recent Supreme Court of British Columbia decision on Cowichan Tribes v Canada. Leadership and our entire community fundamentally disagree with the court's decision."
Globe and Mail
11-08-2025
- Politics
- Globe and Mail
B.C. to appeal landmark Aboriginal title ruling over land in Metro Vancouver
British Columbia's government will appeal a landmark Aboriginal title ruling that grants a claim by the Cowichan Nation over land on the Fraser River in Metro Vancouver, the attorney-general said. Niki Sharma said Monday that the government strongly disagrees with last week's B.C. Supreme Court decision granting fishing rights and Aboriginal title over the parcel of land on Lulu Island in Richmond, B.C. Sharma said the ruling could have 'significant unintended consequences' over private property rights in B.C. and it must be reconsidered by a higher court. 'Our government is committed to protecting and upholding private property rights while advancing the very important and critical work of reconciliation here in this province,' Sharma said, adding that the government preferred resolving land claim issues through reconciliation rather than risking 'considerable uncertainty' through the courts. The B.C. Supreme Court ruled last week that fee-simple ownership and interests in the lands, held by Canada, Richmond and the Vancouver Fraser Port Authority, 'are defective and invalid,' but did not make a similar ruling for privately owned property. The judge said B.C. owes a duty to the Cowichan to negotiate in good faith the reconciliation of Crown-granted private property on a portion of Lulu Island in Richmond, land that Cowichan ancestors used as a summer home and fishing village. 'The Crown grants of fee simple interest in the Cowichan title lands, and the Crown vesting of the soil and freehold interest in certain highway lands in the Cowichan title lands, unjustifiably infringe the Cowichan's Aboriginal title,' the ruling says. How Indigenous peoples and the private sector can work together to get major projects done At a news conference earlier Monday, the Cowichan's lawyer, David Robbins, told reporters it was up to the provincial government to reconcile private property rights with the ruling. 'They have always understood that fundamentally, this case is about resetting their relationship with the crown,' he said of his clients. 'And so, with respect to the private fee simple that is still encumbering the Cowichan Aboriginal title, they sought a declaration that British Columbia has a duty, to reconcile that fee simple with the Cowichan Nation Aboriginal title through negotiations.' Cowichan Tribes Chief Cindy Daniels said the nation initially tried to get an agreement through the treaty process but there was 'no openness' to discuss the land, and so they went to court. 'As stated in our 2016 declaration of reconciliation, our land and resources objectives are to recover and restore our village and surrounding lands, re-establish our permanent residence and river access, re-establish our cultural practices including those that support food security and sustainability, realize economic development and re-establish the truth of our history in that region,' she said.
