‘Step back and take a breath’: Lawyer predicts Cowichan title decision will be overturned

Former senior government counsel Geoff Moyse joined NowMedia video host Jim Csek for another discussion on Indigenous land title, following up on a recent town hall on the controversial ruling granting title to the Cowichan Tribes.

Moyse drew stark parallels between recent Indigenous title declarations on Haida Gwaii and the contentious court ruling in Richmond, claiming that private fee simple landowners are being sidelined in "reconciliation agreements" that bypass traditional treaties.

Moyse recounted Haida Gwaii's evolution, starting with the 2004 Supreme Court of Canada decision establishing the "duty to consult."

After 20 years of negotiating, the provincial government in the Haida announced that they had reached an agreement called the Rising Tide Agreement, Moyse said.

“One of the main things that agreement did is allegedly preserved the rights of fee simple owners on Haida Gwaii, while at the same time declaring Aboriginal title to the entirety of the Haida Gwaii Archipelago,” he explained. “So already setting up Aboriginal title to be declared over private fe lens, not so different to Richmond.”

Moyse said the agreement does not account to a treaty but rather a “reconciliation act.”

He said the federal government followed with their own Haida agreement, the Big Tide Low Water agreement.

Moyse said the Haida issued a press release in September saying that they had just been to BC Supreme Court seeking a declaration from the court by consent of the parties to Aboriginal title, now being declared over Haida Gwaii and recognized and affirmed under the Constitution of Canada.

“So that's the last shoe to fall in the process today,” he said.

Legislation followed, but provinces can't unilaterally affirm title, he cautioned.

"The provincial legislation goes so far as to say that estates and fee simple on Haida Gwaii are confirmed and continued. That's all it says,” he noted

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In Richmond, where a court found Indigenous title over around 800 acres of private and municipal land amid overlapping First Nations claims, Moyse sees echoes: zero notice to owners, no binding protections.

“So what happened in the Haida judgment is Justice Young looked at Haida Gwaii and used it as an example. In her view of why those titles can coexist. My view is that they don't really coexist,” he said.

"Was there a finding... over the private fee simple properties? The answer is yes. Was there a declaration...? The answer is no."

Moyse said the basic difference is that the fee sample owners on Haida Gwaii can rely on a contract between BC and the Haida to keep their fee samples whole whereas in Richmond, there is no such contract as yet.

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

Mosye said that is expected to happen later this year and there are about seven parties appealing the decision.

There have been claims of uncertainty around mortgages and investment with some saying there is a”cloud” over private interests.

The Musqueam and Tsawwassen First Nations, along with the federal and provincial governments, the City of Richmond and the Vancouver-Fraser Port Authority all opposed the claim.

BC MLAs have criticized the BC NDP’s “ideological” decision not to seek extinguishment in the ruling. Even Federal Conservative leader Pierre Poilievre called for the decision to be overturned.

However, Moyse encourages residents and municipalities to wait for the appeal process to get started.

“I think that people should step back a little bit and take a breath on this one because I personally am of the view that that judgment can't stand. I think it will be overturned. I'd be surprised if it isn't overturned immediately in the Court of Appeal,” Moyse said.

“I don't think it can survive in the Supreme Court of Canada (either) because both of those courts are going to be practical enough to say ‘Hey, we're all here to stay and we can't have this kind of economic uncertainty, so we've gotta sort this issue out right away.’”