In what some commentators are calling a “radical” decision, the British Columbia Supreme Court has decided that land titles issued by the provincial government – the legal foundation for the ownership of private land – are “defective and invalid” in the face of Aboriginal title. In her decision, the judge declared that Cowichan Nation have established Aboriginal title to 800 acres of industrial land within the City of Richmond, and that the land titles within that area held by the federal government, the municipal government, and private landowners are an unjustified infringement of that Aboriginal title.
The Cowichan Nation did not seek to invalidate all of the land titles based on this unjustified infringement of its Aboriginal title, but for those it did – belonging to the City of Richmond and the Government of Canada – the Court declared the land titles to be defective and invalid. The Court suspended this part of the declaration for 18 months, to give Richmond and Canada time to “make the necessary arrangements”. The Cowichan Nation did not ask the Court to invalidate land titles held by the private landowners, but the Cowichan are free to do so in future litigation if they choose and the Province has an obligation to negotiate about the private land titles in the meantime. The decision thus casts a pall of uncertainty over the land titles system that had previously given homeowners and business owners legal certainty for land ownership.
While the Premier of British Columbia did not indicate whether the decision would be appealed, he did recognize that owning private property with clear title is key to the economy. “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,” Premier Eby said.
This decision is of enormous consequence for those parts of Canada with unresolved claims for Aboriginal title. It is of less direct consequence in provinces like Manitoba where signed treaties have defined rights to land, but it is nonetheless a significant signal of how the courts weigh Aboriginal rights as compared to the rights of others in Canadian society.
