Vaughn Palmer: Judge’s refusal to reopen Cowichan case a chilling message to B.C. landowners
Opinion: This being the first case where Aboriginal title was applied to private as well as Crown land in B.C., all levels of government supported the application to reopen
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VICTORIA — B.C. Supreme Court Justice Barbara Young sent a chilling message to B.C. landowners when she refused to reopen the case where she designated Aboriginal title over several hundred hectares of private land in Richmond.
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Montrose Properties, owner of the largest tract of private land, argued it had never received any formal notification that its fee-simple (private) title could be affected by the outcome.
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This being the first case where Aboriginal title was applied to private as well as Crown land in B.C., the federal, provincial and Richmond city governments all supported reopening the application.
Montrose argued that the finding of Aboriginal title affected the use of its lands, the ability to sell or develop them, and the applicability of provincial laws, among other factors.
Those arguments got nowhere with Young, who made the finding of Aboriginal title in favour of the Cowichan Nation last August.
Young didn’t deny back then that her designation of Aboriginal title “may give rise to some uncertainty for the fee-simple titleholders, and it may have consequences for their interests.”
Nor did she rule out that the Cowichan Nation might someday seek to take over all the private land included in the designation of Aboriginal title.
“They are not pursuing exclusive use and occupancy of privately owned lands at this time,” wrote Young. “What they may choose to do in future negotiations or litigation is speculative.”
Despite those far-reaching implications, she found (contrary to the argument of the provincial government) that there was no need for private landowners to have formal standing in her courtroom. She upheld that position in the decision filed June 29.
This time, she criticized Montrose for failing to intervene in the case at an earlier stage, then filing the application to reopen after the years of proceedings were concluded.
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“Although Montrose did not have formal notice of the proceeding, it had knowledge of the proceedings, and chose not to apply to be added as party until long after the conclusion of the trial,” she wrote. “Montrose’s application is dismissed as an abuse of process for relitigating.”
She suggested the company could join the federal, provincial and city governments in challenging her decision at the B.C. Court of Appeal.
Yet as the Montrose filing noted, if Young did not grant it standing at her B.C. Supreme Court proceeding, the company “will have no standing at the Court of Appeal unless it obtains leave to intervene.”
Young’s latest decision accepted a key argument made by the plaintiff Cowichan Nation in opposing Montrose.
“I agree with the plaintiffs that allowing this application could open the floodgates for numerous other private landowners and persons with commercial or other interests in the Cowichan Title Lands to seek to join the litigation,” she wrote in another swipe at Montrose.
“Allowing this application could incentivize third parties to take a wait-and-see approach to joining litigation until after reasons for judgment are released.
“That would mean if reasons for judgment are met with disapproval, a person might apply to be added as a party after they are issued and seek to have the matter reopened, rather than applying in a timely way and assuming the cost and efforts associated with participating in litigation.”
The lawyer for the Cowichan Nation interpreted Young’s latest ruling as a directive to private landowners to butt out of all court proceedings involving Aboriginal title.
“We now have a clear decision in B.C. that private parties have no place in this kind of litigation,” David Rosenberg told Andrea Woo of The Globe and Mail.
When the initial decision came down last August, Rosenberg forecast that any future sales of private land in the affected area could only go ahead “with the consent of the Cowichan Nation and some accommodation from the Crown.”
This time, the winning lawyer predicted that “the hard work of reconciliation can get underway seriously.”
More likely, events will take the course forecast by New Brunswick Court of Appeal Justice Ernest Drapeau in rejecting a claim of Aboriginal title over private land in that province.
“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,” he wrote.
Young acknowledged the New Brunswick case in passing in her recent judgment, but she did not directly address its implications. It will be months and maybe years before her findings and those of the New Brunswick court are reconciled.
In the interim, Young has put provincial landowners on notice that they can’t count on B.C. judges to let them know when their land holdings are at risk from a claim of Aboriginal title.
