Lawyers say that BC鈥檚 planned appeal of a Supreme Court decision recognizing the Cowichan Tribes鈥� Aboriginal title over a Richmond village site is intended to provide further clarification on the initial ruling, which could expose governments to hundreds of millions in compensation and set a precedent far beyond the province.
On Aug. 7, following a 513-day trial held between 2021 and 2023, the BC Supreme Court ruled that traditional Aboriginal title takes precedence over conventional fee simple ownership, determining that land grants issued between 1871 and 1914 unjustifiably infringed on Cowichan territory. The court recognized their title over much of the area, including submerged lands and fishing rights, covering lands held by various governments and private owners. Since Aboriginal title claims fall outside provincial law, the Land Title Act offers no protection.
Attorney General and Deputy Premier Niki Sharma said to Canada鈥檚 National Observer the ruling 鈥渓eaves lots of questions鈥� around how Aboriginal title interacts with BC鈥檚 land laws, especially the Land Title Act.
鈥淥ur team is working on the very complicated, 800鈥憄age decision,鈥� Sharma said. "We don't think this trial decision gives the right amount of clarity for us to figure out what the rights are and what the resolution is with all the interests that are at play in this scenario.鈥�
Independent legal experts following this case say this uncertainty raises key questions about how Aboriginal title will work within existing land ownership laws and compensation frameworks.
Coexistence
Robert Janes, a Victoria-based lawyer specializing in Indigenous law and a partner at JFK law said Aboriginal title and private property rights have been under consideration by courts for many years.
"This is the first case that has really had to directly deal with the issue of 鈥� Can you have Aboriginal title and private property rights coexist," Janes said.
The courts have confirmed that Aboriginal title holds the same weight as full land ownership, including the right to its economic benefits, he said. 鈥淥ne of the things to consider in looking at reconciliation is whether or not compensation has been paid.鈥�
He said reconciliation can take many forms. One obvious way is compensating the First Nation while allowing private landowners to remain. Another is allowing the First Nation to exercise governmental powers over the land 鈥� like zoning or land-use control 鈥� to operate similarly to municipal governance.
Some settlements allow existing property owners to keep their land but recognize the First Nation鈥檚 future right to reclaim it. Other times, governments buy out landowners altogether.
鈥淎nother possibility鈥� was that the people who are presently there can continue to hold the land, but in the future, once it no longer is needed, the band can reclaim [it] if the people die or they move,鈥� he said.
Another independent legal expert, Darwin Hanna who is an adjunct professor in the Law department at the University of British Columbia and partner at Callison & Hanna said compensation discussions likely will take time and involve cost-sharing between the province and the federal government.
"Who is paying that compensation? Is it the government? Is it the provincial government or is it a combination of both the province and Canada who do cost sharing?鈥� he added.
Hanna said these discussions will include appraisal considerations based on 鈥渉ighest and best use鈥� of the land today, which could affect compensation value.
High stakes for government
Sharma said there has always been an obligation for the Crown 鈥� and every government across the country 鈥� to sit down and figure out what its obligations are to First Nations and what the honour of the Crown means.
鈥淥ftentimes that [obligation] has financial implications associated with it, and we come up with agreements that really further everybody in the province," she said.
But, Janes said the financial stakes for the governments are high.
鈥淚n an area like Richmond with valuable land, compensation could be in the hundreds of millions or even billions of dollars,鈥� Janes said.
The land claim area also includes blueberry farms, multi-million-dollar houses and a golf course.
On potential costs, Sharma said there are currently no credible estimates.
鈥淚t鈥檚 a complicated issue with various parties, so I don鈥檛 know that there鈥檚 ever been a credible value evaluation done that I鈥檓 aware of,鈥� she said. 鈥淥ftentimes, the best path forward is to sit down and work through these issues with nations through agreements."
Cynthia Callison, a Vancouver-based lawyer, founding partner of Callison & Hanna and member of Tahltan First Nation who is not directly involved in this case, clarifies the court鈥檚 ruling is a declaration of Aboriginal title rather than a treaty land claim 鈥� which means the ruling confirms the Cowichan鈥檚 existing rights to their ancestral lands based on historic occupation and use, rather than arising out of a negotiated treaty process.
鈥淭here are no immediate consequences,鈥� Callison said. 鈥淭he province and the Cowichan will now need to negotiate what reconciliation looks like.鈥�
Sharma said the government remains committed to negotiating with Indigenous Nations, as it has done in previous agreements.
In April 2024, British Columbia and the Haida Nation finalized the 鈥淩ising Tide鈥� agreement, formally recognizing Haida Aboriginal title over all 200-plus islands of Haida Gwaii. Following a two-year transition period, the Haida Nation will take over management of 98 per cent of the archipelago, encompassing protected areas and forested lands formerly designated as Crown land.
鈥淲e found a pathway to acknowledge Haida title and bring certainty to any private landowners that were in that area. And so there's always a path forward through agreement and discussion that helps to bring that certainty,鈥� she said.
Ripple effects
Legal experts warn the impacts of this case could extend beyond BC.
Many claims across BC and Canada remain outstanding due to historic Crown denial and lack of treaty settlement. This ruling could reinvigorate claims and negotiations nationwide, Hanna said. Janes said the ruling could set a national precedent, particularly in provinces like Quebec, New Brunswick, Manitoba, Nova Scotia and Prince Edward Island, where historic treaties either do not exist or did not extinguish Indigenous title.
鈥淚 fully expect that other provinces will be on the phone to the Attorney General of Canada and to the Attorney General of BC, voicing their concerns about this issue,鈥� he said.
鈥淣o other attorney general has reached out to me about this issue,鈥� Sharma said.
She said the B.C. government bases its decisions on the contents of the judgment but remains open to conversations with any province.
Sharma said they are currently working on the appeal of the Cowichan ruling with their legal team and have not yet set a date to file. The province is in the 鈥渆arly exploration phase鈥� of addressing overlapping land claims and establishing agreements through dialogue and negotiation.
Jane said the case is expected to advance to the Supreme Court of Canada regardless of the Court of Appeal鈥檚 decision as courts must settle key legal questions to set clear precedents.
Shana Thomas, hereditary chief of Lyackson First Nation 鈥� one of the group of Cowichan Tribes that stand to benefit from the court decision 鈥� said for more than three decades, Cowichan member communities have been engaged in the provincial treaty process, pursuing resolution through negotiation rather than litigation. Despite being among the earliest Nations to enter treaty talks, progress has been stalled and denied.
鈥淓ven engaging with the federal government on access to food fish, just a simple access question has been denied,鈥� she said. As a result, litigation became the only route left to pursue recognition of their rights and title.
鈥淲e鈥檙e actually still in the colonial period. As long as there is denial, it鈥檚 going to take some effort for the Crown to turn the table and negotiate in good faith to resolve these outstanding claims of Aboriginal title. The nations aren鈥檛 going away, and this will be a game changer for many of them, because they want to be fully involved in managing their lands and having these lands available for their benefit,鈥� Hanna said.
