The Current - Can Aboriginal title and private property rights co-exist?

Episode Date: November 4, 2025

Tempers flared in a jam-packed meeting in Richmond, BC last week. Mayor Malcolm Brodie held a public information session to answer questions about the potential impact  of  a BC Supreme court ruling on a Vancouver suburb. We speak to the Cowichan Tribes chief negotiator - and legal experts - about the significance of the decision and whether Aboriginal title and fee simple title can co-exist.

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This is a CBC podcast. Hello, I'm Matt Galloway, and this is the current podcast. Tensions were high at a public meeting last week in Richmond, British Columbia. Mayor Malcolm Brody and the city's legal counsel fielded questions from private property and business owners impacted by a recent BC Supreme Court decision. That ruling established Aboriginal title over about 300, hectares of land in the Vancouver suburb. The city of Richmond then sent a letter to 150 affected property owners saying the ruling may compromise the validity of their ownership.

Cal Matu spoke at the meeting. I'm asking you who brought us together here tonight, the mayor, okay, why did you not warn us earlier? Don't tell me what the law is. You're being such a nice guy doing this information here for everyone tonight, the meeting. Why don't you tell us sooner? Well, there it is. I have your point. Thank you. The landmark case began more than a decade ago,

and the trial took more than 500 days. It is one of the longest trials in Canada's history and a milestone in our country's reckoning with indigenous reconciliation. But it also raises important questions about how Aboriginal title and private ownership or fee simple title can coexist. Here's another affected property owner, Jonathan Shepard. For me, I look at this as a situation where I pay taxes.

I'm a Canadian citizen, and this whole situation seems to be a first for all of Canada. And as such, if we're going to pioneer this, it would stand to reason that we would get some sort of representation and have that representation paid for on our behalf, since we're really effectively representing all of British Columbia and effectively all of Canada in this be simple argument. The city, the province and the federal government are all appealing the decision. A process legal experts say could take years. Some residents say they are already feeling the impact. This will probably take four or five years, right? In the meantime, if you have to renew, if you have a loan on the property that you have and the bank doesn't want to renew that

loan? What do you do? That's actually happening right now. There are issues with banks and insurance companies with mortgages because of the land claims on our properties. Would there be some sort of recourse in that our property values are going to be devalued quite substantially in some cases while this is going on? So will that be taken into account in the property tax assessments? British Columbia's Attorney General, Nikki Sharma, was also at the session. We strongly disagree with the decision that was made by the Supreme Court as it related to private property rights. I'm here on behalf of the province to listen to the affected landowners and to see what's happening on the ground here in Richmond. We were the first out of the gate as a province to appeal this decision because of what we think is a great deal of uncertainty related to private property.

property rights. Now, the Cowichin tribes have said the Richmond mayor and the province's statements about the impact of their Aboriginal title case are misleading. In a statement, Cowichin Nation Chief Cindy Daniels said, quote, 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 BC's obligation to advance reconciliation in these circumstances. Robert Morales is a chief negotiator for the plaintiff nations in this case, and a member of the Coast Salish Nation and Cowichin Tribes. He's in Lady Smith, BC. Good morning.

Good morning. Thank you for having me. It's nice to have you. Can you describe the land in question and its significance for the Cowichin Tribes? Well, the land that's in question part of this litigation is located on the Lower Fraser River. is the site of ancient ancestral villages of the Quotsan nations. So there's five nations that were involved in this legal action and is a very significant area. As chief negotiator, I've been working with our nations for since the year 2000. Elders have emphasized the importance of this location to the plaintiff nations.

And tell us more about the importance. Why is this land so important for Cowichin nations? Well, it's an important historical location, an area where our nations traveled and harvested and lived for part of the year. And it represents, I think, a major issue that we've been dealing with since this treaty process commenced, and even before that. So the issue of fee simple lands and what is the impact of fee simple lands on Aboriginal title and Aboriginal land rights or property rights. So that's been a major issue. In British Columbia, 90% of the land.

land base is crown held, referred to as crown lands, and 10% of the province is privately held lands, or Fisimple lands. In the Hulcomenum nations or the plaintiff nations' traditional territory, including the Flectinus location on the Fraser River, but also Vancouver Island, it's the exact opposite. 90% of the land has been granted away by the crown and fee simple interests, and only 10% of the land is Crown land. So this has been an issue that we have been raising for many, many years. This is not something that is new. The Crown has been aware of this issue since I became the chief negotiator and even before that. And so, Robert, when you hear, and you've heard many, and we just played some of it, the response to concerns

of private land owners, what's your response to them? Well, I'm going to take you to three sources. So the first source is international human rights law. And I'm just going to read a quote here from the Inter-American Commission on Human Rights. We have a petition before the Inter-American Commission on Human Rights dealing with this very issue. And here's what they have to say. They say, according to the Inter-American Court, the fact that claimed lands have been transferred from one owner to another over long period of time and are duly registered are not a sufficient motive to justify the lack of recognition of indigenous rights to property and restitution, nor does it exempt states from international responsibility for such lack of recognition. Indigenous people's right to property

and restitution subsists even though the claimed lands are in private hands. And it is not acceptable for indigenous territorial rights to be denied automatically. The will of the current owners of ancestral lands cannot per se prevent effective enjoyment of the right to territorial restitution. Indigenous people's right to restitution of their traditional lands has also been confirmed by the committee for the elimination of racial discrimination. according to recommendation 23 on indigenous peoples where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used, without their free and informed consent, state should take steps to return those lands and territories. Now, as you said, yeah, as you said, you know, the Qaacin Nation and Halcaminum speaking members of the Halcum Treaty Group are not asking for. that. We didn't ask for that when we went to the Inter-American Commission. The litigation team

on this case has not asked for that. So I think it is misleading to have the public believe that somehow the First Nations are seeking those privately held properties. And so, Robert, the public reaction has been fierce. People are worried. People are concerned, even though you say, look, that's not what we're trying to do here. But how does that public reaction to the ruling that we've seen in Richmond impact this country's reconciliation with First Nations? Well, I think that, you know, I've been as a chief negotiator advancing this issue, as I say, since the year 2000. I have put on the table options for Crown to deal with this issue in a positive way. I have talked to administrations, you know, the former Liberal Party premiers and ministers,

the current NDP parties, premiers and ministers, and have put on the table really what the options are. You know, the first option is return the land. Well, that's not, you know, something that is likely going to happen. A crown has conclusively indicated that, you know, they're not going to expropriate land for for the settlement of these issues. So that's not on the table. And we haven't asked for it. The second option, then, is for some form of a redress,

some form of, you know, dealing with it. And what the international law and domestic law say is that nation states like Canada and British Columbia can replace the land. I'm not sure that they can do that. there isn't you know we can't go into another nation's territory and say well we want your land right so that's not likely going to happen they can um uh make compensation for the land now that's something that you know could be discussed and and you know i'm not part of the of the litigation team I wasn't involved in the Flectina's litigation so at the higher level uh certainly you know, these options are there.

I have also asked the government, you know, can we have some kind of revenue sharing? Because revenue sharing is something that nations are able to negotiate on Crownland. The answer has been no. I have asked the government, you know, can we do some kind of joint decision-making or co-management of private lands? The government has said no. So effectively, they've taken all the options off the table. Okay, Robert, we'll leave it there.

Thank you for explaining this to us. Appreciate it. Okay, then. Robert Morales is the chief negotiator for the Hulke-A-Menum Treaty Group. Norval Morso is one of the most famous indigenous artists ever. Looking at his paintings, it's easy to see why. Colors are intense. Color as medicine.

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Thomas Isaac is a lawyer and partner at Castle's Law Firm in Vancouver. He advises businesses and government clients across Canada on Aboriginal legal matters, negotiations, and constitutional issues. And Merle Alexander is an indigenous resource lawyer based in Victoria. He's involved in the ongoing legislative implementation of the United Nations Declaration on the Rights of Indigenous People, Undrip, as it's known. Good morning to both of you. Good morning. Thomas, let me begin with you. We just heard the chief negotiator with the Cowich and Tribe say

they're not after the land of private homeowners, so everyone needs to calm down. So why should these landowners, these private homeowners, why should they be concerned? Well, look, there's two things going on here. I mean, I keep hearing this about what the First Nation claimed. I've been watching a lot of the media on this. Most people aren't talking about that. It's a non-issue. It's a discussion. We can have a discussion with that. The point is what's in the decision. So the couch and pled what they pled. We have a decision that is a direct attack on the Land Title Act. What does that decision say as it relates to feasible? Well, here's what it says. Paragraph 2,259. This is the court writing generally, and this is in six different paragraphs. In my view,

Aboriginal title currently lies beyond the land title system in BC, and the Land Title Act does not apply to it. It therefore cannot be said that a registered owner's title under the Land Title Act is conclusive evidence that the registered owner is indefeasibly entitled to that land, as against the Aboriginal title holders and claimants. And so this has nothing to do. That paragraph has nothing to do with what the Cowichin sought. This is what they got from the court. And it's the only decision of which I'm aware in the common law world

where indefeasible title is now being held out as being defeasible. That is the title you can take to the bank, the title that banks lend on, lenders lend on, that people rely on for security is no longer completely guaranteed by government. So that is, certainly that's been the issue I've been focused on. What the actual ruling is. Pardon me?

What the actual ruling is. Yeah, I mean, right. Can I just throw one more thing that the justice Barbara Young wrote in that decision? And here's just a little bit of what she wrote, quote, the Cowichin have not made claim for return of land from non-parties and the property rights of the private landowners are not undermined. So what do you say to that, Thomas? Well, I just read you a sentence that directly contradicts that.

Anybody holding title in, well, actually, according to the court anywhere in B.C., but in terms of the 800 acres or so, the court has said that the two key provisions of the Land Title Act sections, 23 and 25, they said all the rights, all the protections, don't apply. So that when a First Nation, the court actually says a First Nation as well. So not just focus on the couch and go to seek upon having title affirmed. When they go and attempt to obtain the land, what's the first thing a land title holder is going to do is they're defense. They're going to go to their title. We already have a decision if it's upheld that says,

well, yeah, you didn't invalidate the title. That is true. But you can't rely on the two most important provisions in the land title act. So anyone's suggesting that that's not material. I mean, it's there in black and white. And this has nothing to do with the Cowichin, quite frankly. This is what the judge and what the court said about the land title act, specifically around the 800 acres, and, and this is critical. It's not just about that, more generally about the BC Land Title Act. Merle, let me bring you into our conversation because you have a different interpretation of what the ruling means for private land owners in that area.

So how are you interpreting it? Yeah, thank you very much for having us. It's not that I have a contrary opinion about what the case is, Obviously, you're both just, like, citing, citing paragraphs. I think it's more about, like, what the implications are and, like, what the, what the direction forward is. Like, as the case stands, it's a, it's from, like, the second lowest court of British Columbia, the BC Supreme Court. Of course, it's been appealed to the BC Court of Appeal. So right now, the case is very, has fairly limited application to a select group of fee simple owners within that.

300 hectares that you that you spoke of. So if the case, if the BC government, like, took the advice of the court to negotiate a framework to clarify the relationship between free simple owners and average old title, then we could actually have a pretty quick resolution and legal clarity about the more limited application of the case. Of course, other First Nations, like maybe, maybe encourage. to launch Aboriginal title cases, but as you also, like, pointed out, there's not a lot of First Nations or even any litigant in any subject matter that are, that are keen to run a

513-day trial. So, I mean, I think that there's quite a bit being made out of the broad implications of the case when, right, currently the case applies to a very limited amount of fee-simple owners. I also generally think that the mayor of Richmond has in some ways made it much more of an inflammatory topic

and maybe even cause greater concern throughout all of Richmond because the case is very limited application to just to wear that small 300 hectare geographic area. But of course, if you take it to a higher court and the courts affirm

a lot of the legal principles then it might apply throughout British Columbia if you take it to the Supreme Court of Canada then the case may apply throughout Canada but I mean there's being the VC government is being given a very reasonable option to negotiate

with the college nation in an 18 month period and clarify that fee simple and couch and average old title can coexist So let's talk about that more. And Thomas, can Aboriginal title and fee simple title co-exist?

Not in this case only, but in the broader context. So, look, I have stated quite publicly based on my reading of the current law of this country, and that's relying solely on Supreme Court of Canada guidance on describing what Aboriginal title is. And by the way, Aboriginal title is a big deal. It's a right to the land. It's difficult to prove, but when you get it, you get the land. That's what the court has said to date. Is it possible the court might change its mind and say something different?

Say it's an interest in land. You know, you can horse trade it with the province and try to – they haven't said that to date. And what they've also said is there's an limitation on title. This goes back over 250 years to the Royal Proclamation of 1763. that third parties, private third parties, cannot receive an interest and cannot receive Aboriginal title lands. And this was reaffirmed in all of the current case law of the Supreme Court of Canada.

So my view is, is no, they can't coexist. A simple title is essentially the exclusive right to land, the exclusive interest in land. Two, Aboriginal title, we know. The court's been very clear about this. is the exclusive right to the land. And one that can't, it's a communal right, and it can't be divvied up and shared with private third parties. It could with the crown potentially, but not with private third parties.

So in my view, no, they can't coexist. If we're trying to make them coexist, we have to change the definition of Aboriginal title, on the one hand, that it's not an exclusive right to the land. B, we have to change what into feasible title means. And to start changing it, you know, the suggestion that folks aren't affected, it's only restricted 800 acres. A, the decision doesn't do that. The decision goes beyond the 800 acres expressly.

The court expressly states that this is a precedent. That's the judge's words. Two, there are people and businesses being affected today outside of the 800 acres. Why? People don't want to finish transactions. Banks don't want to lend. Banks are raising a lot of questions. That is not a direct result of the Cowichin. That's a direct result of the decision. So this is a real issue today. And so, Merle, you obviously see this, the existence of Aboriginal Title and Fee Simple title coexisting differently. Where are we seeing examples of that working? Yeah, well, the same issue sort of arise actually in the time. I probably also disagree on this. But, I mean,

but last, over the, of course, I guess there's a couple of things quickly, which is one, there's only ever been three First Nations that have established average old title, like through,

through the courts. So again, like there's to date for the limited application of this Supreme average old sort of title, uh, decoration or Aboriginal, like, so far,

like in Canadian, like history, there's been very few opportunities for First Nations to achieve that high of interest. But where this issue has been addressed before in British Columbia is that the Haida Nation completed an affirmation of title agreement last year that first was followed by British Columbia, then the government of Canada, and then they've since made an application to BC court to essentially affirm that title. But the important part here is that the three parties, as was advised in this circumstance, sat down, negotiated very clear language that would implement the coexistence of average own title and fee simple interests. Particularly, there's language that directly addresses what is, I think, a lot of the fundamental concern where in that agreement it states that the Haida Nation.

consents to and will honor the fee simple interests, including those held by Haida citizens. And in another clause, it says that the Haida Nation consents to fee simple interest on Haida-Guai continuing in BC's jurisdiction. So, I mean, the reason I make reference to that is because if the party sat down in this circumstance and negotiated essentially a government-to-government agreement implementing this decision, you could achieve. legal clarity with the Aboriginal title holder, in which case, and of course you could even in doing so, I think you could even bring other interested parties like banks, like privates, you could provide like an opportunity like there would be for anything, an opportunity for private, like landowners to sort of have a, be consulted. Like I think you could quite easily find a negotiated solution. And we've been told by the Secret of Canada over and over and over. These issues are very complex,

and they're much better dealt with at a negotiation table than they are in an adversarial court process. So, I mean, I feel like we're just not taking the wisdom and the advice that's being offered by the courts to negotiate instead of bringing this into the public domain. We will see if negotiations win at the end of the day or if this continues to work through the legal system. Thomas and Merle, thank you both. Appreciate it. Thank you. Thank you. Thomas Isaac is a lawyer and partner at Castle's Law Firm,

and Merle Alexander is an indigenous resource lawyer. You've been listening to the current podcast. My name is Matt Galloway. Thanks for listening. I'll talk to you soon. For more CBC podcasts, go to cbc.ca.ca.