B.C. to appeal landmark First Nations land title ruling, citing possible ‘significant unintended consequences’

VANCOUVER — On Monday, members of the Cowichan Nation praised elders and those who have gone before them as they celebrated victory in a years-long legal fight to reclaim land on the Fraser River used by their ancestors as a summer home in what is now the Metro Vancouver municipality of Richmond, B.C.

The trial had lasted 513 days, resulting in a ruling last week that is almost 280,000 words long.

Justice Barbara Young ruled that the Crown’s grants of private property ownership rights over the lands “unjustifiably infringe” on Cowichan Aboriginal title, and need to be negotiated, while titles and interests in the lands held by Canada and Richmond were “defective and invalid.”

But it soon became clear the conflict is not over, when B.C.’s Attorney General Niki Sharma promised to appeal the landmark decision that she said could have “significant unintended consequences” over private property rights in the province.

“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 Monday, hours after a Cowichan news conference.

Sharma said the government preferred resolving land claim issues through reconciliation rather than risking “considerable uncertainty” through the courts.

“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.

The nation had not sought to have the titles of privately held properties declared “defective and invalid.”

However, the ruling said B.C. owes a duty to the Cowichan “to negotiate in good faith reconciliation of the Crown-granted fee simple interests held by third parties.”

The land at the heart of the case is on the south shore of Lulu Island in Richmond, which the Cowichan ancestors used as a summer home and fishing village.

While the nation’s people had winter villages on Vancouver Island and other islands, the ruling says that every summer they would travel “en masse” to a “permanent post and beam village” on the Fraser River territory where they fished for salmon.

Cowichan Tribes Chief Cindy Daniels had told the news conference on Monday that Friday’s decision goes toward the nation’s goals to recover and restore the village and surrounding lands, re-establish a permanent residence and river access and re-establish cultural practices.

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.

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.”

When asked whether the Nation was seeking financial compensation for the land, Robbins said the “case has always been about land recovery.”

Stz’uminus First Nation chief John Elliot, whose nation was among the plaintiffs, got emotional when speaking about the impact of the decision and the fishing rights the nation was granted.

“Knowing that the history was always there, and we knew it as a people, that someday we’ll be back on a river, doing what our ancestors did, fished, gathered, and had the opportunity to flourish on the south arm of the Fraser River,” he said.

“And knowing that the next generations of our communities will have the opportunity to do what our ancestors did.”

Steve Kooner, the BC Conservative critic for the attorney general and MLA for Richmond-Queensborough, said he had spoken to constituents over the weekend who are worried about their properties.

“This ruling directly affects homeowners, businesses, municipalities and farmers,” he told a news conference Monday.

“People are worried about their property rights being affected, worried about mortgage renewals, worried about the value of their properties potentially being reduced into the future.”

The Cowichan’s case was opposed by the Musqueam and Tsawwassen First Nations, along with the federal and provincial governments, the City of Richmond and the Vancouver-Fraser Port Authority.

On Friday the Musqueam Indian Band — which declared in 1976 that it holds the Aboriginal title covering both the north and south arms of the Fraser River — criticized the court’s decision, saying it was considering its options for a possible appeal.

On Monday Robbins said the plaintiffs in the case have not sought to divide or engage in conflict with any other First Nation.

“Their sincere hope is that the Musqueam and indeed all the defendants, can reconcile themselves to the truth with respect to the Cowichan on the south arm of the Fraser River, as soon as possible,” he said.

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