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Country Meadows Golf Course, which falls within the boundaries of a Cowichan Nation Aboriginal title claim, in Richmond, B.C.DARRYL DYCK/The Canadian Press
B.C. Supreme Court Justice Barbara Young was asked Monday to reconsider her landmark Cowichan Tribes ruling in light of a contrary judgment that followed months later.
The unusual hearing, held in the same Victoria courtroom where Justice Young conducted Canada’s longest-running trial, will determine whether the case will be reopened almost 10 months after she released her judgment.
Justice Young ruled last August that the Cowichan had established Aboriginal title to a former village site that is now currently divided into various fee-simple titles, from private homes to industrial warehouses, in the City of Richmond.
Montrose Property Holdings Ltd. is the largest private property owner in the title area. The industrial land developer’s lawyer, Joan Young, argued the trial should be reopened to consider Montrose’s land rights, which she said have been undermined by Justice Young’s decision. (The two Youngs are unrelated.)
“There is real risk of miscarriage of justice,” the lawyer said, because the case was heard without Montrose or other private property owners having the opportunity to defend their interests in court.
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The Montrose lawyer said reopening the trial would allow Justice Young to consider the findings of New Brunswick’s Court of Appeal, which ruled last December that the Wolastoqey Nation cannot seek a declaration of Aboriginal title over private property. In that decision, the court ruled that a declaration of title would be so harmful to private property rights that it would undermine Canada’s efforts at reconciliation with First Nations.
“In the same way that the Court of Appeal dealt with the issue in Wolastoqey, you may find that it’s appropriate to make findings of Aboriginal title, but it’s not appropriate to make a declaration of the title,” the lawyer said.
A declaration of Aboriginal title is binding, but a finding is not.
Ms. Young read to the court a portion of the New Brunswick ruling, which highlights the deep contrast between the two court judgments.
“In my view, a declaration of Aboriginal title over privately-owned lands, which, by its very nature, gives the Aboriginal beneficiary exclusive possession, occupation and use, would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians,” Justice Ernest Drapeau wrote in the New Brunswick case.
Justice Young, in the Cowichan case, found that Aboriginal title is a senior interest in land above fee-simple titles, which derive from Crown grants. “A precedent that will follow from this case is that provincial Crown grants of fee-simple interest do not extinguish nor permanently displace Aboriginal title,” she wrote in her judgment.
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The B.C. Supreme Court decision is the first in Canadian law to declare Aboriginal title over fee-simple lands, but it does not resolve how those two rights can co-exist. The courts have already defined that Aboriginal title is a right to the exclusive use and occupation of land. Montrose argues that the court has only created more uncertainty for its substantive holdings worth hundreds of millions of dollars.
The Supreme Court of Canada will decide on Thursday if it will hear an appeal of the Wolastoqey decision.
The Cowichan are seeking intervenor status in that appeal, if it is heard, to argue that the two cases are fundamentally different. The New Brunswick Court of Appeal says the Wolastoqey Nation can seek a finding of Aboriginal title to pave the way for compensation from the Crown for their lost lands. The Cowichan argue that their declaration of Aboriginal title is binding on third parties who may have an interest.
Ms. Young told the court that if the declaration Cowichan title is binding on third parties, Montrose faces “very significant and adverse impacts” on its own interests and rights. However, she invited Justice Young to offer a clarification if that was not the court’s intent.
In court, lawyers for both the federal and the B.C. government supported the Montrose bid to reopen the trial.
Marie-Sophie Poulin, lawyer for the B.C. Attorney General, urged the court to grant Montrose a voice. She reminded the court that the province advocated for the protection of private property interests throughout the lengthy trial.
“The province has been constant in its position that two mutually exclusive interests in land cannot coexist over the same land,” she said.
Justice Young will hear the lawyers for Cowichan on Tuesday on the Montrose application, with a decision to follow on another date.
David Rosenberg, the lead lawyer for the Cowichan, has said Montrose’s application to reopen the case is an abuse of process, coming so long after the five-year-long trial was completed.
