The Decibel - The Indigenous land claim that could override private property rights

Episode Date: November 11, 2025

A precedent-setting ruling involving Aboriginal title at the B.C. Supreme Court has caused widespread uncertainty and tension in the province. In August, Justice Barbara Young decided that Cowichan First Nation had title to roughly 800 acres in the city of Richmond — including private property. The ruling has raised questions over both residential and commercial property rights, as well as governance of the region. Today, B.C. politics reporter Justine Hunter joins the show. She’ll explain the case, the divisive response, and the impact it could have on Indigenous land claims across the province... and the country. Questions? Comments? Ideas? Email us at [e-mail] Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

Last month, residents across Richmond, BC received a letter from the mayor. In it, they learned their property may not actually be theirs. It has to do with a BC Supreme Court ruling from August. It granted the couch in First Nation, Aboriginal title, over roughly 800 acres of land in the city, including private properties. Today, BC politics reporter Justine Hunter is here. to talk about this precedent-setting decision, the divisive reactions it's getting, and the impact it's already having

on indigenous land claims across the province and the country. I'm Cheryl Sutherland, and this is the decibel from the Globe and Mail. Hi, Justine. Thanks for being here. Good morning. So there was this court decision in August, and then people in Richmond, BC, got these letters saying ownership of their land could be compromised.

Before we get into what's going on, Justine, we need you to lay out some terms. So first, what exactly does Aboriginal title mean? Well, Aboriginal title is a subset of Aboriginal rights, which are usually attached to land in Canada. So Aboriginal title has been defined by the Supreme Court of Canada as the right to exclusive use and occupation of land for a variety of purposes. But the scope of that and the definition of title has been evolving in the courts. So, you know, that's what it says and has been for a few decades now. But generally, that scope has been broadening with every land title case that makes its way through the courts. Okay. And, yeah, this was first defined by the Supreme Court in 1997.

So, Justine, what does this look like in practice? Like, what can a First Nation do? What are they entitled to? Well, and that's what a lot of lawyers and politicians and landowners and indigenous peoples are all trying to figure out right now. Because we've only seen a couple of cases in the last two years. years where the courts in Canada have laid out scenarios where these two things, private property ownership and Aboriginal title overlap. So generally treating negotiations and until recently, most Aboriginal title cases before the courts have steered away from private land. So we're

kind of into a new era and people are still trying to find their way through it. All right. Okay. So this is an issue for landowners who have what we call fee simple title on the land. What is that? It's the highest kind of certainty around land ownership in Canada up until recently. It's a complete form of ownership. If you have fee simple title on a piece of property, you own the land on the house or whatever it is on it. It's a common form of property ownership in Canada. And to kind of undermine and create uncertainty about whether or not those rights that go with fee simple title has kind of changed the dynamic and then created a a lot of conversation here in British Columbia.

Yeah, okay, yeah. So right now we have something called Aboriginal title and then we have fee symbol title. So there's this idea of entitlement to the land. And this kind of brings us to this case, couch and tribes versus Canada. This involves land with fee simple ownership. Justine, can you explain what this case is?

Yeah, it came down in August and a lot of people are just starting to figure out what happened here. But this was a long-running case. It was five years in the course. courts 513 days, 86 lawyers involved in it. So a lot of stakes. And in this ruling that came down on August 7th, the BC Supreme Court Justice Barbara Young upheld the Cowichin tribes claim to a portion of land within Metro Vancouver. And that includes private lands with fee simple title.

Now, the assessed value of the lands in the Cowichens claim is somewhere around $2.5 billion. And it includes lands that belong to the port, the city of Richmond. private homes, there's farms out there, and a lot of industrial operations. So there were a number of precedents set in this case, including this award of submerged lands and fishing rights. But right now, this decision means that Aboriginal title has been defined for the first time in the courts as a prior and senior right to land. And the judge wrote, and I'm going to quote here, a precedent that will follow from this case is that the provincial crown grants of fee simple interest do not extinguish nor permanently displace aboriginal title now everyone is appealing this

decision including the Cowichin who want their entire claim area not just the 40% of it that they did win in this award but yeah so a lot of a lot of people trying to figure out just what this means for not just the people in in Richmond but anywhere we're where there are land claims that overlap with private lands. And so from what I understand here is that Aboriginal Title overrides private ownership, right? And so this is kind of at issue here. Yeah, the judge is saying that these two things can exist in the same place, but it's really unclear how that's going to work.

Because as I said earlier, Aboriginal Title is an exclusive right to a land, and fee simple land is also an exclusive right to land. So when you say these two things coexist in the same place, an aboriginal title is the senior right to land that does sound, and people are a bit alarmed, that that may mean that their private rights and their ownership are now in question. Yeah, could this, could this First Nations group could they come in and say, I don't know, lay claim to the land that has a home on it or has a business on it? that's that's very much the question um what the judge said is that the cowichin and the crown so that's both the federal and provincial governments in this case need to go and negotiate how to work these things out so nothing immediate has happened and you know if you were sitting with a piece of industrial land you've got your Coca-Cola bottling plant out there or your Canadian tire depot you know nothing's changed as of today but it's the questions of how these two things are going to to overlap and how they're going to work out and what the long-term implications are that are very much in play. The province has said that they're going to seek a stay to try and make sure that nothing happens, nothing changes in the interim while we wait for this to work its way through

the appeal court, but that's going to be a long process. Is this the first time private property owners are being implicated in a land claim case? No. So First Nations have historically stayed away from private lands, but this isn't the first court decision here. There are two cases that I'm aware of, there may be more, from lower courts that all of them, along with the couch and are probably going to be taken all the way to the Supreme Court of Canada. But the first was in 2023, the Sojan First Nation on Ontario had persuaded the courts that its unseated reserve lands displaced the fee simple rights and interests of private landowners in Sable Beach. In 2024, there was a court ruling in New Brunswick that ruled that if the Wollastogway nations can prove

Aboriginal title, that their title would apply to all the lands within the claim area, including private lands. And now those land claims cover more than half of the province of New Brunswick. That one has already gone through the Court of Appeal, but we're still waiting for a ruling, which could come any time, but likely before Christmas. You mentioned something there about how First Nations groups usually stay away from private lands. Why? I think it's the evidence is in the concerns and fears that have come up as a result of the Cowichin decision. You've got the premier of the province who has aligned his government, seeking reconciliation with First Nations, has made it a big priority. And yet he's saying

this has thrown a wrench in all the work that the province has been engaged in with First Nations to try and move forward on reconciliation. Because suddenly, people aren't sure that their lands are still theirs, that there's been kind of always an understanding that if you start claiming private lands, that people will be concerned about losing something. And it is a much more significant topic of discussion in British Columbia than perhaps other parts of the country because so much of the land here is still subject to land claims. There are very few treaties that cover the land here. So there's not a lot of certainty anywhere. So it's one thing to kind of say I'm in support of decolonization and I will do a land acknowledgement to recognize that there

were people here before me. It's quite another thing altogether to say, and they may have ownership over my land. Justine, are there wider implications here beyond private ownership? Yeah, I mean, there's a whole governance question around what rules apply. Who collects taxes in the Cowichin Lands in Richmond now? Is it the city of Richmond? Does the province's rules around, say, contaminated soils on an industrial piece of land? Can they enforce that now? Or do the Cowichin have a say over that?

If I want to sell a piece of property in the Cowichin Lands in Richmond, do I need the consent of the Cowichin to do that? So there's a huge questions of governance here that go well beyond just the question of who owns the land, but also who runs it. So this case could just be the tip of the iceberg then? Yes, that's the concern. There's a number of parts of BC where there are Aboriginal land claims that involve, for example, properties in cities.

There's a case that started around the same time as the Cowichin case involving a First Nation near Kamloops. And they're claiming a good chunk of the city and a nearby resort called Sun Peaks. So there are places, even in the city of Victoria, there's a claim against three parking lots. Now, it doesn't sound like a big deal, but they're worth about $50 million. The city of Victoria is actually supporting the First Nation in this claim. So there are all parts of British Columbia where you could see the precedent set in Cowichin having some implications. Now, I've talked to lots of lawyers, and I've heard lots of different opinions on that. but that certainly the concern is that this could set a precedent that would undermine private

property rights, which is why the province is appealing it. The federal government is also appealing the couch and decision on the grounds that this may have wide-reaching scope in terms of the precedent set around private property right across the country. We'll be right back. So there's been a lot of reaction to this case within BC. So let's start with homeowners in Richmond. What do we know about the response from residents?

Yeah, this is really only started, as I said, the decision came out in August. This is really only started to heat up in October and now into November because a lot of people were not aware that their private property was involved in this case. So the mayor of Richmond, Malcolm Brody, sent out a letter in late October to call an information meeting for homeowners. telling them that their private property was involved in this case. He held a town hall with residents. My colleague Andrea Wu covered it. It was quite a heated session from all accounts. Residents expressing frustration and anger that they were just now learning about the Supreme Court that questions their private property rights. They're concerned about the impact on their property

values, on their ability to get a mortgage or reinsure their homes. And I spoke to somebody who works in property taxes, who usually represents just industrial property owners, but he's now opening his door to homeowners as well in this case. And he says about half of the land out there is now signing up for this basically a tax revolt, if you will. This tax expert is making the case of those properties that have overlapping title are now worth less, and therefore they should pay less on their property assessments due to the uncertainty around who owns the land, who governs the land. Interesting.

You mentioned that residents weren't notified until recently. Do we know why? Well, throughout the court case, both the city of Richmond and the crowns of the federal government, the provincial government, had said that the court should notify those people with private property rights within the claim area. And the court declined. Now, the court also said that any of those other parties could go ahead and make those notifications, which they chose not to. I think there was some legal implications of being the

bearer of bad news in this case. So this was a decision not to tell people because the court decided that their property rights were not actually at stake. Okay. Did you get any sense from this tax expert, like from the people that they spoke to? Was there a worry? Like, what was the stuff that they were hearing? A lot of concern. So there's people, he said, who have have not been willing to come forward publicly because they don't want to talk about the fact that their home may be worth something less than what they paid for it. But he does say that there are a number of people, including industrial property owners, that are very concerned about the value of their property and the status of their property.

You've got a huge amount of money tied up in those lands. If you are a farmer and you own your land, you know, all of these different levels where we agree to develop our economy and our economic activity, on one thing, and then have that thrown into question, I think, is just demands clarification. And I also spoke to an outfit called Montrose Properties. They're an industrial real estate firm. They own the largest single chunk of land that's in the title area, about 300 acres of those 800 acres.

They're seeking to reopen the case, not just appeal it and wait seven years for a higher court to make a decision. They want the original case reopen, arguing that they, didn't have a stake in and they should have been stakeholders with intervening status in this case. Is that possible? Could they do that? Could it actually be reopened? I don't know what's possible. Their lawyers are telling them that's that's the way forward. And the concern is that if all of the parties appeal, they'll go to the BC Court of Appeal and then eventually it would likely be appealed to the Supreme Court of Canada, that process typically, even if it's expedited,

It is going to take us into the next decade. It'll be seven years or more before you would actually get a Supreme Court of Canada ruling on this. So that's a lot of time to live with uncertainty, especially if you're a homeowner and you want to reopen your mortgage, you want to sell. So they're arguing that they can't wait for that. How are the Cowan reacting to this? There's an understanding that this is a victory that is going to be tested. that this isn't the last word.

And I think they're also seeing a bit of a backlash because there's a lot of public concern that's being whipped up by some factions, particularly conservative politicians, but also others who are saying, look, this is a huge risk for everybody. And so they're going to be dealing with some of that as well. And, you know, this was a huge legal cost.

I don't know what they paid, but this was a significant investment. on their part to get to where they got, but also recognizing that it's not going to be the final word at all. The lead counsel for Cowich in First Nation said that there's been misinformation about the nation's title case. Is there any truth of that? And if so, like, why would that be happening? I think this is, I mentioned earlier, that there's a lot of disagreement about what this actually means. So David Rosenberg from the Cowich in Nation, the lawyer, has said,

that the circumstances of this Aboriginal titled case are limited to a very specific history, one in which the governor of Vancouver Island at the time, James Douglas, the governor had said, okay, we will give you these things in exchange for certain things. So they did an agreement with a couch and nation between the crown that promised them access to these lands. and then a functionary of the government went and turned that land into private fee-simple lands, including he bought some for himself. So there are a very specific history involved in this. And so David Rosenberg is saying,

do not extrapolate the circumstances in this case to other cases. So that's where he's frustrated and disappointed in politicians, including the premier of the province, who are saying that there are much broader concerns about fee simple, title. Justine, has the nation said anything about private landowners' concerns here? Do we have any idea about how they want to go about this? So the Cowichin, they're saying they stand with landowners, that they were not seeking

to extinguish fee simple title in this case. And in a way, the court went further than what they had asked for. And so they had said, well, we want Aboriginal title recognized here, but they weren't seeking to throw anybody out of their homes. And we don't know that the courts have. As I said, there's a lot of uncertainty about what she meant when she said that Aboriginal title exists here and that it is a superior and senior form of ownership. So, you know, there's a lot of uncertainty, I think, is the only way you can put it. Now, in terms of the government's response, what people are doing, the province wants the court judgment to be kind of put on hold so

that they're not overturning the case, that's going to take years. That's what they want to do, though, was overturn these precedents that have been set here. Now, this is a time when the province is also trying to advance treaty negotiations and to work with First Nations, particularly around resource development, economic development. So they're walking a very careful line here. There was a two-day meeting between the BC government and First Nations leaders very intensive session where they're talking about all the things they want to do together

and at the same time the Premier has ruffled some feathers in his response to Cowichin so he has said these are profound issues that are hard to consider in the absence of real people which was something that sort of implied that the indigenous

Cowichin were not real people and I think what he meant was something quite different but that was how sensitive these things are, is that those words were interpreted in a negative way. So, yeah, there's tension here between the province and First Nations in general as a result of this. Justine, you've mentioned that some people don't believe Aboriginal title and fee simple can coexist. But does anyone believe that they can? Like, do we have any examples of these working together? So there is an example, and it may be the,

the final kind of model for working forward. It's the Haida title case was resolved through negotiation. It's not, they don't have a treaty and they don't have a court ruling. They have an agreement that has been enshrined in law and now enshrined by the Supreme Court that says that Aboriginal title to all of Haida Gwai, which is that archipelago of islands off of the West Coast, just north of Vancouver Island. And they say Aboriginal title exists over the entire land base. However, the Haida recognize that private landowners, they'll have the same rights,

they'll pay taxes to the municipal government. The hospitals and schools will be funded and operate as always. So that is a unique decision. It could be a model going forward, but there's a lot of details that are still being worked out. So I hesitate a little bit to say the solution is Haida because we don't know that yet until we see all of the details. But it is certainly a case where you have established in law, Aboriginal title, over all the lands, while fee simple title is said to continue to exist as it has. So, Justine, just to end here, even though we've been talking about one case, this could have broad implications across Canada. So what kind of effect is this going to have on reconciliation efforts?

I think there's a legitimate concern that this has, as the Premier says, thrown a wrench into reconciliation. At the same time, I do think that there is an obligation on the part of both levels of the Crowns, so both the federal government and the provincial government here, to sit down with the couch in and negotiate the details of this decision, but also more broadly, to try and work towards getting some clarity, not just in British Columbia, but right across the country around how we're going to do this. Because as I mentioned in those other cases, this is not exclusive to British Columbia. It is predominantly a BC issue, but there are circumstances in other parts of the country where we now have questions about how private lands and Aboriginal title will coexist.

And I think it does cry out for what would be very hard work. on the part of the politicians and governments to try and sort out what that means. Justine, thank you so much for coming on the show. Thanks for having me. That was Justine Hunter, the Globe's B.C. politics reporter. That's it for today. I'm Cheryl Sutherland. This episode was produced and mixed by Ali Graham. Our producers are Madeline White, Mikhail Stein, and Ali Graham.

David Crosby edits the show. Adrian Chung is our senior producer. and Angela Pichenza is our executive editor. Thanks so much for listening and I'll talk to you tomorrow.