This article was first published on APTN News.
In Canada, Cowichan Tribes leadership is firing back at Richmond Mayor Malcolm Brodie, Premier David Eby, and other politicians who have recently made public statements about the Cowichan Nation’s Aboriginal title case.
They call the statements about the effect of the B.C. [British Columbia] Supreme Court’s judgment on individual private property owners misleading and “deliberately inflammatory.”
“To be clear,” the statement says, “the Cowichan Nation’s court case regarding their settlement lands at Tl’uqtinus in Richmond has not and does not challenge the effectiveness or validity of any title held by individual private landowners. The ruling does not erase private property.”
In August, the B.C. Supreme Court ruled that the tribes have Aboriginal title over a portion of the land on the Fraser River, that Crown and city titles on the land are defective, and the granting of private titles by the government unjustifiably infringed on Cowichan title.
According to the Cowichan Nation’s website, the case centred around Aboriginal title to approximately 1,846 acres of their traditional village Tl’uqtinus and surrounding lands on the south shore of Lulu Island, which is now part of the city of Richmond.
The Cowichan Nation’s enormous permanent village was first observed by Hudson’s Bay Company officials in 1824 as containing over 108 longhouses. In 1827, the HBC first charted the Cowichan village as a landmark on the Fraser River’s main channel.
The Nation says that during colonial reserve creation beginning in 1859, the Chief Commissioner of Lands for the Colony of British Columbia, Colonel Richard Moody, failed to finalise the village and surrounding land as a Cowichan Indian reserve. Instead, he surreptitiously took part of the lands for himself.
Over 780 acres of the Cowichan Nation settlement are currently owned by the government of Canada, the Vancouver Fraser Port Authority, and the City of Richmond. The Cowichan Nation is seeking to recover those publicly held lands – much of which remain undeveloped.
The court ruled the province owes a duty to the Cowichan to negotiate in good faith how to reconcile Crown-granted private ownership with Aboriginal title.
The lengthy court case against Canada spanned five years, with the decision ruling in favour of the Cowichan Tribes. The ruling was contained in an 863-page decision issued Aug. 7.
In the wake of the decision, Brodie issued between 125 and 150 individual notices to affected property owners, including a briefing note which says Richmond will “make legal arguments that Aboriginal title and fee simple title cannot co-exist over the same lands.”
Last Monday, Premier Eby said the province was “working very closely with the City of Richmond on the appeal and leaning on them for some evidence that they have that others won’t be able to bring forward about what this decision means.”
The mayor and premier’s statements served as fresh kindling in an already fiery debate over the court’s decision.
A lawyer for the Cowichan Tribes, David Rosenberg, says the Cowichan “stands with the land owners” and is empathetic to them because his clients have also been frustrated by “inactivity” from the provincial government to deal with this matter.
He says the history of the Cowichan title area involved the “extreme circumstances” where General Moody purchased land that was supposed to have been set aside for a reserve for the Cowichan Tribes in the 1800s.
The Cowichan Tribes maintain that when the Crown was setting aside Indigenous settlement lands as reserves in British Columbia, Richard Moody, the Crown official responsible for reserving the Cowichan settlement at Tl’uqtinus, covertly sold some of the Aboriginal title lands to himself as a land speculator.
Rosenberg warns against applying the situation of this “tremendous injustice” to all fee-simple lands across British Columbia or Canada.
One Cowichan Nation Chief Pam Jack of the Penelakut Tribe says private landowners’ concerns should be directed at the province.
“If any individual private titleholders at Tl’uqtinus are concerned about somehow suffering a loss, they should know their remedy is against British Columbia, the party responsible. It is not to get involved in the Cowichan Nation case,” Jack says in the news release.
“We welcome and anticipate supporting individual landowners making any respectful claims they may have against British Columbia.”
Another chief, Cindy Daniels, says in the news release that they continue to experience the impacts of the loss of title today.
“However, we are a respectful people. We intentionally did not bring this case against any individual private landowners, and we did not seek to invalidate any of their land titles. The decision makes it clear that it is B.C.’s obligation to advance reconciliation in these circumstances.”
Another Cowichan Nation chief explains, “It has been British Columbia’s historic and ongoing refusal to address reconciliation at Tl’uqtinus that brought us to this point where we have sought to reset the Quw’utsun (Cowichan)-Crown relationship through the Court.”
“Our case has always been about the Crown doing the right thing,” says John Elliot.
The chiefs say the city of Richmond and British Columbia’s “negative and erroneous messaging is provoking unnecessary fears. Their approach is inconsistent with the Court’s decision and is contrary to reconciliation.”
The chiefs also say Richmond’s claim that they abandoned the settlement at Tl’uqtinus “is appalling misinformation in this era of truth and reconciliation and contrary to the Court’s findings.”
British Columbia, the City of Richmond and the Musqueam First Nation have said they will appeal the B.C. Supreme Court’s ruling. The city has invited property owners to an Oct. 28 meeting on the issue.
B.C. Conservative leader John Rustad has also called on Eby to ask the Supreme Court of Canada for an immediate ruling on whether Aboriginal title can coexist with private property rights, but Rosenberg says this is “unrealistic.”
He says Canada’s highest court would want a full record from the original trial court and the appeals court before taking up the case.
APTN News has reached out to the Cowichan Tribes for further comment on the case, but so far has not heard back.
By Leanne Sanders of APTN News
