Opinion: Premier says the federal and B.C. governments are working to overturn ruling that Indigenous title applies to private lands, with next court case up soon
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VICTORIA — Premier David Eby says he’s encouraged that Prime Minister Mark Carney “fundamentally disagrees” with the B.C. Supreme Court decision to recognize Aboriginal title over private land in Richmond.
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“I am hopeful certainly that we are on the same page as the prime minister on the matter of private property,” Eby told reporters on Monday. “It doesn’t feel particularly controversial between us at all.”
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The premier was reacting to a pivotal exchange in Parliament last week between the prime minister and Richmond MP Parm Bains.
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“Can the prime minister explain how the government is working collaboratively to uphold reconciliation, while protecting private property rights for residents and businesses?” asked the Liberal MP.
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“This is an important question,” replied the PM, leaving no doubt that he’d been primed for both question and answer.
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“This government fundamentally disagrees with the B.C. Supreme Court’s decision in Cowichan. We immediately appealed that decision, alongside the Government of B.C., the City of Richmond, and other First Nations.
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“We will always advance viable legal arguments to protect private property. Federal agreements, including agreements about Aboriginal title, have always protected and will always protect private property.”
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B.C. Supreme Court Justice Barbara Young issued the decision in favour of the Cowichan Tribes last August. Carney’s answer in question period last Wednesday ranks as his first public comment, near as I can determine.
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Eby said the two governments were already co-operating in the fight to defend private property and clarify the implications of Justice Young’s epic, 900-page decision.
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“I have asked for cooperative steps to be taken between Ottawa and the provincial government on what we can do to provide assurance and support for the basic notion of protection of private property in B.C. and across Canada,” the premier said Monday.
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The federal and provincial governments are already on the same side in support of an application to reopen the Cowichan case from one of the major owners of the property covered by the Aboriginal title designation.
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Montrose Holdings argues to reopen on grounds that it was excluded from the proceedings in the case and only learned that its property was affected when the decision came down last August.
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B.C. argues that “the orders sought by Montrose should be granted so that Montrose can speak with its own voice regarding the consequences a declaration of Aboriginal title has had on its fee-simple title and business activities.
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“This court should hear from and consider the direct perspective of the private land owners affected by a declaration of Aboriginal title.”
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Canada argues that “the court issued a declaration of Aboriginal title over lands held in fee simple, including those of Montrose, on the basis that these interests can coexist but may not be exercisable in their fullest form.
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“Uncertainty thus remains regarding how Aboriginal title and fee simple are to coexist in practice pending successful negotiations or future litigation.”
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The application to reopen is strongly opposed by the Cowichan Nation.
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“This application is an abuse of process,” it argues. “It seeks to relitigate issues that were thoroughly argued and definitively decided in court.”
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If Montrose wishes to dispute the findings of the court, Cowichan argues, “any recourse they may have is at the Court of Appeal, not in relitigating matters before the same court that issued the trial decision.”
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It further argues that the court made the right decision to withhold formal notification to private landowners.
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“Adding private parties to an Aboriginal title claim has also frequently been found to be contrary to the objectives of proportionality, access to justice, and reconciliation for failure to minimize costs and complexity,” argues Cowichan.
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“Indeed, it has long been recognized that the addition of private parties threaten to render Aboriginal title claims so unmanageable that they will never achieve what this litigation has already achieved: a final conclusion after trial.”
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Nor does Cowichan, in fighting the Montrose application, rule out the possibility of someday seeking ownership of the private lands in the area covered by the designation of Aboriginal title.
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“If, in the future, the plaintiffs seek to exercise title rights on lands to which Montrose Industries has a fee simple interest, dispute resolution will be required, including litigation as necessary,” says Cowichan. “At that time, Montrose Industries will have the opportunity to be heard and avail itself of any defences.”
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Moreover, says Cowichan, even if Montrose could show that its property values or access to credit had been indirectly affected by the trial decision, (“which has not been proved”), it still has no grounds to come after the First Nation. “It’s remedies, whether political or legal, are against the Crown.”
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The Crown, meaning both levels of government. No wonder Ottawa and Victoria are fighting on the same side.
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The Montrose application to reopen the case will be heard May 25 and 26 before Young, the same judge who found for Cowichan last year.
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The case would then proceed to B.C. court of Appeal and, presumably, the Supreme Court of Canada. The parties will be squaring off every step of the way over the implications for private property, while the uncertainty continues.
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