Lawyer warns of impacts of BC Court ruling that Aboriginal title trumps private properties

A recent BC Supreme Court decision granting Aboriginal title to the Cowichan Tribes over approximately 800 acres of land in Richmond, including private properties, has sparked concerns about the stability of land titles across British Columbia.

Shortly after the decision from Justice Barbara Young, BC said it would appeal the ruling.

In an interview with NowMedia Group's Jim Csek, former senior government counsel Geoff Moyse highlighted the ruling's potential ramifications and criticized the provincial and federal governments for not employing a key legal defense: the extinguishment of Aboriginal title through Crown-granted fee simple titles.

Moyse, explained that the ruling stems from Section 35 of the Constitution Act, 1982, which enshrines Aboriginal rights, including title. Justice Young found that Crown titles in the area are "defective and invalid," but suspended the declaration for 18 months to allow for an orderly transition.

The decision affects a mix of interests, including about 137 private properties, commercial sites like a Walmart and Wayfair depot, a golf course, and Crown lands along the Fraser River.

Moyse noted that while Aboriginal title has been proven in only about 5% of claimed territories in past cases, such as Tsilhqot'in (1,800 square kilometers in the Cariboo). He said the problem is that a lot of places where Aboriginal title is likely proven are places where land settlements have been created, typically like valley bottoms and urban centers, potentially impacting places like Vancouver.

“So they all came from land that was granted by the crown at some point in time. Sometimes the Federal Crown, most often the provincial Crown, but they all track back to the Crown’s interest in land,” he explained.

“Now Aboriginal title has been held by the Supreme Court of Canada to be a burden on that crown interest in land. That creates the issue of what’s the interplay between Crown grants and Aboriginal title. And one judge has now weighed in to say, well, Aboriginal title is now the superior interest in those lands.”

A central issue, according to Moyse, is the government's failure to argue that fee simple grants from the Crown extinguished Aboriginal title.

"I’m astonished by this, I have to say. It was not argued by the province that these grants extinguished Aboriginal title. It was not argued by Canada," he said.

He attributed this to a 2022 directive from the BC Attorney General instructing litigators not to plead extinguishment in any circumstances.

“That was a political decision and I think a huge mistake,” Moyse said. “Canada did exactly the same thing.”

Moyse added that Canada adopted a similar stance, leaving what he views as one of the strongest defenses presented at trial.

This choice, Moyse argued, ties the government's hands in the appeal process.

He urged affected private landowners to band together and seek intervener status in the BC Court of Appeal to raise the extinguishment argument themselves.

“When this goes to the Court of Appeal, they should be there as residents. They are affected by this judgment,” he said. “They will have standing. They need to ban together and get themselves into this lawsuit as interveners, because someone needs to plead this whole question of extinguishment.”

Alternatively, the court could appoint an amicus curiae (friend of the court) to address it.

"I'm not terribly comfortable relying on the BC government to appeal this case when they've basically given away one of the strongest arguments that they had," Moyse stated.

Moyse expressed doubt about the ruling's finding that Aboriginal title and fee simple interests can coexist, saying, "You can't have two parties having the exclusive right to occupy and use a piece of land."

He noted that the Cowichan Tribes have the legal capacity to eject private landowners at any time, creating a "cloud" over titles that could devalue properties, complicate sales, and hinder mortgages.

"Both the banks and future landowners are going to look at the situation and say, well, what you're saying is essentially I could be on this piece of land until the Cowichan Tribes tell me otherwise. And that's not a lot of legal certainty for an investment," he said.

The ruling has also ignited overlapping claims, with the Musqueam Nation asserting historical rights to the area, potentially complicating reconciliation efforts. Moyse predicted the case will reach the Supreme Court of Canada, estimating four years or more, and called it "probably the biggest issue they're going to ever face as a court when they're dealing with Section 35."

The BC NDP government has announced an appeal and intends to seek a stay to pause the judgment's effects. Moyse contrasted this with a potential Conservative approach, suggesting they would not issue similar directives limiting defenses.

He emphasized that the ruling is site-specific but could set a precedent for the province's land title system where Aboriginal title is proven.

Private landowners' options include suing the province for damages if titles are impaired, though Moyse advised timing such actions carefully.

The province, Canada, Musqueam, City of Richmond, and BC Port Authority were parties to the litigation and may appeal by the 30-day deadline.

Moyse urged the public to engage with reconciliation policies, warning that secretive implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) could foster division rather than unity.

Moyse spent 31 years as a BC government lawyer specializing in Aboriginal and treaty law under six successive administrations, described the judgment as a legal application of constitutional principles rather than policy. He is also the sole practitioner at Moyselaw and legal and policy advisor to the Public Land Use Society.

NowMedia received comment from the provincial and federal government. Click here to read that story.