The B.C. Conservatives are reiterating their call for the province to pause all Aboriginal title negotiations until the controversial Cowichan title case is resolved.
Leader John Rustad and deputy indigenous relations critic Scott McInnis, MLA for Columbia River-Revelstoke, said in a statement Thursday the government is operating in secrecy and without legal clarity.
“You can’t tell homeowners not to worry while quietly signing agreements that require absolute clarity around the indefeasible ownership over their private property,” said Rustad.
The province and other parties are appealing the Aug.7 ruling by the B.C. Supreme Court on Cowichan Tribes v. Canada. B.C. Attorney General Niki Sharma has said the ruling could have unintended consequences for fee simple property rights in the province.
Judge Barbara Young ruled the Cowichan hold Aboriginal title to more than seven square kilometres of land at their former village site in Richmond, as well as the right to fish the south arm of the Fraser River.
The court declared that most of Canada’s and Richmond’s fee simple titles in the area are invalid. It allowed the parties 18 months to negotiate a resolution.
Premier David Eby said last week the province is working on a stay application to further delay implementing the decision until the Court of Appeal weighs in.
While the case has been wending its way through the courts for more than a decade, many property owners in the claim area weren’t made aware of it until after the trial concluded.
Concerns mounted when Richmond Mayor Malcolm Brodie wrote a letter to property owners within the claim area last month, warning their property’s title could be affected by the Court’s decision.
Hundreds of Richmond residents and stakeholders attended an information session on the decision last Tuesday, many expressing concern and confusion about what the ruling means for their properties.
Eby on Monday acknowledged the case has created “huge anxiety” for home and business owners in the claim area. He said there were previous assurances from the court that the decision would not affect landowners in the claim area, so they didn’t need to be informed about the case.
“That obviously turned out not to be the case,” said Eby.
The Quw’utsun Nation, of which the Cowichan Tribes are a member, said in a statement last week the rhetoric from politicians around the case has been misleading and inflammatory.
It said the B.C. Supreme Court ruling does not erase private property.
Young affirmed in her ruling Aboriginal title and fee simple interests can coexist. She also recognized that Aboriginal title does not neatly fit into any one legal framework and involves a “nuanced approach, with reference to Indigenous laws, the common law, and equitable principles.”
Rustad and McInnis said the shíshálh (Sunshine Coast) Foundation Agreement is another example of the public being left in the dark, noting the government’s 2024 renewal of the agreement was “hidden” from the public for five months.
The agreement includes commitments to transfer certain provincial Crown lands to shíshálh Nation, located on about 50 kilometres northwest of Vancouver.
The province updated the agreement with the shíshálh in August 2024. However, the province didn’t announce it until late January of this year.
A fact sheet on the agreement released by the province said engagement will be planned for each part of the Foundation Agreement that has potential to impact local government, interest holders and the public.
A letter to Eby last month from a Pender Harbour and area residents association expressed concern about why the agreement was kept under wraps until well after the October 2024 provincial election.
“There’s a responsible way to reconcile rights while protecting property, but this government’s approach is fuelling anxiety and undermining reconciliation,” said McInnis.
Elenore Sturko, Independent MLA for Surrey-Cloverdale, also issued a call this week for the NDP government to disclose all Notices of Civil Claim filed against the province by First Nations claiming title.
She points to the notice of civil claim, initially filed by the Secwepemc Nation back in 2015.
The claim sought to declare Aboriginal title and rights to parts of their traditional territory that includes the City of Kamloops and surrounding areas. The claim aimed to stop development of the proposed KGHM Ajax copper and gold mine project near Jacko Lake – a project which ultimately failed to get the greenlight from the provincial and federal governments.
Sturko also refers to another recent ruling from B.C.’s top court that found Haida Nation has sovereignty over Haida Gwaii, saying it also throws uncertainty onto private property rights.
“While David Eby and his NDP government claim to be working to protect the interests of private property owners, they have failed egregiously to notify the public of claims filed against their private property and continue to work almost exclusively in secret working up land-back agreements behind the backs of British Columbians,” said Sturko in a statement.
In the Haida Nation case, the First Nation’s application was supported by the provincial and federal governments. Similar to the Cowichan case, the court order mandates that the Haida Nation, B.C. and Canada reconcile their respective laws, jurisdictions, and titles during a transition period. A 300-day trial is set for next year to resolve outstanding issues between Haida and the Crown, including damages for infringement of title.
The Haida said the agreements and the court order follow five years of negotiations to reconcile Haida title with the interests of non-Haida residents of Haida Gwaii. The province consulted with local governments and businesses, industry and tourism operators, residents and property owners in the lead up to the agreement. It also held multiple community meetings open to all residents of Haida Gwaii.
Rustad has insisted the Aboriginal title and private property rights cannot coexist.
He has called Ottawa to submit a reference question on the Cowichan Tribes decision to the Supreme Court of Canada, which would allow the top court to issue non-binding advice on the case, and urged the province to pause all negotiations with First Nations until the top court has provided clarity.
The First Nations Leadership council said in a statement last month its members are “deeply disturbed and angered” by Rustad’s rhetoric around Aboriginal title and private property rights.
“Aboriginal title and fee simple private ownership can and do co-exist. Reconciliation through recognition of this legal and political fact is not a threat to the stability and prosperity of British Columbia; it is the foundation on which it is built,” said the statement.
“By calling for an immediate pause to all negotiations between the Province of British Columbia and First nations, Rustad is advocating for an approach that will only exacerbate the very issues he purports to be so concerned about,” said Regional Chief Terry Teegee.
