When is your land not your land? Aboriginal Title vs. Fee Simple Title in British Columbia

UPDATE ON COWICHAN TRIBES VS AG (CANADA) - All the litigants are appealing the August 2025 Supreme Court ruling whereby the court recognized aboriginal title over about 800 acres of land located on Lulu Island which is a part of Richmond, BC. The one group that has been completely left out of the process is the private landowners who were NOT named in the lawsuit and thus had no ability to raise a defense or make submissions to the court.

IGNORING THE BASIC RULES OF JUSTICE

It is a fundamental breach of natural justice and procedural fairness to grant a remedy affecting someone's property when they are not party to the lawsuit.

This principle is known by the Latin maxim: audi alteram partem, which translates to "hear the other side."

The audi alteram partem rule is fundamental to any legal or administrative process where a decision-maker's ruling will affect the rights, privileges, or interests of a person (or group of persons in this case). It includes several essential requirements:

• Notice: Each party must be given adequate and timely notice of the case or allegations against them, including the time, place, and nature of the hearing.

• Disclosure: Parties must be provided with all the evidence or information that the decision-maker will rely on (or that the opposing party will present) to prepare their response.

• Opportunity to Present a Case: Both parties must have a fair chance to make their case or defense, as the case may be.

• Right to Counsel: Depending on the nature and seriousness of the matter, a party may have the right to be represented by legal counsel or an agent.

A first year law student would know this, but the court (inexplicably, in my view), despite requests from the city of Richmond and the BC government, refused to order that the private landowners be notified of the proceedings or added as defendants. Having essentially precluded said landowners from raising a defense, it seems to me that it would be incumbent on the presiding judge to expressly exclude any remedy or declaration that would relate to or affect the private landowners' freehold titles -but she chose not to do so.

Instead, at paragraph 3,543 of this nine hundred odd page decision, the judge wrote: (emphasis mine)

[3543]  I agree that the prospect that a declaration may affect non-parties is a consideration when determining whether to exercise my discretion to grant relief. The private fee simple title holders have no relationship with the Cowichan and the plaintiffs do not seek to invalidate their fee simple interests in this action. I heard from Richmond in its capacity as a fee simple title holder and I heard lengthy submissions from BC about the impacts of a declaration of Aboriginal title on fee simple title holders and on the land title system generally. I accept that a declaration of Aboriginal title may give rise to some uncertainty for the fee simple title holders and it may have consequences for their interests in land.

With all due respect, saying that "some uncertainty for the fee simple title holders may have consequences for their interests in land" is a gross understatement. Uncertainty of title can render the property almost valueless. This is because a potential purchaser requires a title opinion from his or her lawyer (or a policy of title insurance)* confirming that they have good title to the land. A bank considering financing the purchase by way of a mortgage, similarly wants an opinion that its mortgage is a valid, enforceable security over a good title. Good title means indefeasible title.

"Indefeasible title," which is the very core of the BC Torrens Land Titles System, basically means that the title recorded in the land titles system is conclusive evidence of ownership, guaranteed by the Province. While there are a number of exclusions to this set out in s.23 of the Land Titles Act, a claim of aboriginal title isn't one of them.

The court seems to have little to no appreciation of the devastating effect that this decision will have on the 150 or so private landowners in Richmond who reside in the area covered by the Cowichan band's claim. A home is often a person or family's major asset. Most people work for 25 to 30 years to pay off their mortgages. For the 62% of Canadian workers who do not have company or government employee pensions, their home is often their major source of retirement funding (via downsizing or sale).

Alas, the calamitous effect of this decision (if not curtailed or reversed on final appeal) will have on the BC land titles system will be unprecedented, notwithstanding the judge's comments at paragraph [3551] of the the decision: (emphasis mine)

Richmond’s submission that a declaration of Aboriginal title will destroy the land title system and the LTA, wreak economic havoc and harm every resident in British Columbia is not a reasoned analysis on the evidence. It inflames and incites rather than grapples with the evidence and scope of the claim in this case. After a hard fought trial that took over 500 days, the plaintiffs have established Aboriginal title to a small area on the Fraser River where they historically had a village and harvesting areas. Their Aboriginal title is limited to that area over which they have proven sufficient and exclusive occupation. Within that area there are lands now owned by Canada and Richmond and some privately-owned land. The Cowichan have not made a claim for return of land from non-parties and the property rights of the private landowners are not undermined. A precedent that will follow from this case is that provincial Crown grants of fee simple interest do not extinguish nor permanently displace Aboriginal Title and s.23 and s.25 of the LTA (Land Titles Act) do not apply to Aboriginal Title."

Firstly, to say that the Cowichan have not made a claim for the return of land does not mean that they will not do so in the future. If the band did not want to claim against the rights of freehold title owners they could have carved out that area from their claim. They did not do so. Why would they make a claim to the private land if they never intend to seek a remedy?(such as return of the land, occupation rent or money).

Secondly, to state that the property rights of the private landowners are not undermined is completely wrong. Their ownership rights have been severely undermined by the court's ruling.

Aboriginal title generally allows the first nation to exclusive use and occupation of the property and the right to determine how the land is to be used. This is in direct competition with a fee simple title which also allows the private landowner to exclusive use and possession and the ability to transfer title. Such conflicting rights cannot co-exist over the same property at the same time despite the judge's finding in paragraph [3588]: (emphasis mine)

"The fee simple interests do not displace Cowichan Aboriginal title. Aboriginal title is a senior, constitutionally-protected interest in land. However, the Cowichan have not challenged the validity of the private fee simple interests and those interests are valid until such a time as a court may determine otherwise or until the conflicting interests are otherwise resolved through negotiation. As a result, as I explained in Part 6.1, the Cowichan’s exercise of their Aboriginal title is constrained by the existing fee simple interests to the extent it is incompatible with the fee simple interests. This finding will provide some certainty for the Cowichan and the Crown with respect to the private landowners’ continued fee simple interest rights. These interests may be resolved through negotiation, challenged in subsequent litigation, purchased, or remain on the Cowichan Title Lands. That is not a matter for this Court to address. BC and the Cowichan should be afforded space to reconcile these competing interests. It is an issue for the Crown and not the private landowners to resolve."

With all due respect, that paragraph is as clear as mud and provides no comfort to any of the 150 private landowners whose land is now subject to a "senior, constitutionally protected interest in land" by the Cowichan Tribes, regardless of whether they are choosing to enforce that interest or not. To expect that such private landowners should be stuck in this legal quagmire while the Crown and Cowichan Tribes negotiate a settlement is both unrealistic and unfair. Such negotiations can take years or decades to resolve.

WHAT'S NEXT?

The judge suspended the ruling for eighteen months to allow the government and the band to come to mutually acceptable terms of settlement. Given that few land settlements in BC have been finalized since the province joined Confederation in 1871, that seems like a stretch.

Regardless of the decision of the BC Court of Appeal, this case will almost certainly be appealed to the Supreme Court of Canada. That process will likely take years, not to mention tens or hundreds of millions of dollars in legal fees (doubtless paid for by the government out of taxpayers' money -who else can fund multi-year litigation involving dozens of lawyers?)

INTERVENOR STATUS

Pending a final determination of these claims, said private landowners should not be left in a state of legal limbo.

In my view they should be granted intervenor status at the Court of Appeal as they arguably meet the established tests of 1) having a direct interest in the outcome of the proceedings and 2) will be able to assist the court and bring a different perspective that the other parties are not advancing (i.e. the defense of being bona fide purchasers for value without notice when they acquired their lands AND that they are affected parties who were denied natural justice and procedural fairness by being excluded from the lawsuit). The substantial cost of this application and subsequent representation at the BC Court of Appeal and the SCC for the intervenors should be born by the BC government as it is the party that guaranteed the landowners indefeasible title to their lands in the first place.

GOVERNMENT AS PURCHASER OR LENDER

In addition, to mitigate the damage to the private landowners, pending resolution or settlement of this matter, the BC government should step up and offer to buy any affected landowner's property who chooses to sell at the fair market value (as if the court ruling did not exist) or grant a mortgage to such landowners if their own banks refuse to lend or renew an existing mortgage.

Is there any realistic chance that the NDP government would do either of these things to help out the private landowners? I wouldn't hold my breath.

MORE CLAIMS AHEAD

This decision could, to use a phrase often used by the courts, "open the floodgates" for additional aboriginal land claims in BC, which if mostly successful would bankrupt the province (whether fair market compensation is ultimately paid to first nations or to private landowners who were dispossessed of their freehold titles). BC Assessment figures suggest that private landholdings in BC are valued at about $2.79T. There is not a chance that the BC government (which is currently running an $11.6B annual deficit with the total provincial debt at $155B and growing fast) could afford to payout even a fraction of that amount.

Independent MLA for Surrey-Cloverdale, Eleanor Sturko recently raised the matter of another land claim in BC that has been simmering under the public radar, namely (Stk'emlupsemc te Secwepemc Nation (SSN) v. Her Majesty the Queen in Right of the Province of British Columbia, et al.) This claim was filed in 2015 asserting a claim of aboriginal title over the city of Kamloops, Sun Peaks resort and roads, railways, fee simple grants, mineral tenures and other Crown granted interests. If successful, this could turn into a multi-billion dollar claim.

Sturko has called on the BC government to provide full disclosure of all Notices of Civil Claims by first nations against the province claiming title, particularly against private landowners. So far no response has been forthcoming.

Claims are also occurring in other parts of Canada. In Quebec, claims for large swaths of land in the western part of the province including Gatineau Park and islands in the Ottawa river ( by the Kitigan Zibi Anishinabeg First Nation). In the province of New Brunswick a claim for aboriginal title is being made for about half of the province (by the Wolastoqey First Nations).

While other parts of Canada have significantly more land covered by historical treaties with first nations, those treaties are also vulnerable to court challenges on the basis of unfairness and unequal bargaining power.

What the Canadian real estate landscape will look like a decade or two from now based on the foregoing is anybody's guess, but overall it's not looking good for private landowners.

To be continued.......

*Notwithstanding that many of the affected private property owners and their mortgage lenders may have title insurance, aboriginal title claims are generally excluded from coverage in British Columbia.