The landmark Cowichan Tribes court decision recognizing Aboriginal title over private property in Richmond, B.C., opened the door to removing statutory protections for fee simple land title, and it looks like the Haida, B.C. and Canada governments just jumped at the opportunity.
The Cowichan ruling appears to have stripped statutory protections from landowners on Haida Gwaii following covert court action led by Haida, and supported by the B.C. and federal governments, even as Premier David Eby touts the Haida land title deal as his government’s “template” for reconciliation agreements.
On Aug. 7, the BC Supreme Court recognized Cowichan Aboriginal title on 750 acres of private, retail, industrial and federal Crown land in Richmond. It marked the first time a court recognized Aboriginal title can co-exist with, and supersede, fee simple private property.
Significantly, the judge also ruled certain statutory protections of private property in the Land Title Act don’t apply if Aboriginal title on the same land is recognized by a legal declaration.
B.C.’s Land Title Act guarantees the “indefeasibility” of fee simple land titles in British Columbia. Meaning, once a private property is registered under the Land Title registry, it cannot be cancelled or nullified.
Until now.
In the Cowichan Tribes court case, Cowichan did not seek a remedy from private landowners in Richmond, but it did argue the Land Title Act does not, and was never intended to, apply to Aboriginal title. If the act was found to apply to Aboriginal title, Cowichan argued, “it would be tantamount to extinguishment,” according to the Cowichan Tribes v. Canada court ruling.
The presiding judge, Madame Justice Barbara Young, agreed.
“Aboriginal title lies beyond the land title system in British Columbia… 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 ss. 23 and 25 of the LTA [Land Title Act] do not apply to Aboriginal title,” wrote Justice Young.
With that, the judge loosed a veritable thunderbolt upon private property protections across B.C.
While Justice Young ruled fee simple interests in land held by the City of Richmond and by Canada were “defective and invalid,” she stopped just short of issuing a similar declaration for the 150 private properties affected by the decision. Instead of a declaration, which the judge said would strip otherwise completely secure private land ownership of statutory protections, she ordered the B.C. government to negotiate with the Cowichan to “reconcile” Aboriginal title with fee simple title.
Cowichan ruling is bad news for Haida Gwaii home owners
A month after Justice Young ruled that a legal declaration of Aboriginal title will void private property statutory protections, the Haida – backed up by the Canadian and British Columbia governments – asked the BC Supreme Court to issue a consent Order to do exactly that.
On Sept. 4, the Haida Nation asked the BC Supreme Court to declare Aboriginal title to the entire Haida archipelago, including over all the private fee simple lands on Haida Gwaii.
Previously, the BC NDP government had already negotiated recognition of Aboriginal title over the same area as set out in the “Rising Tide” Haida Title Lands Agreement. For some reason, private lands were not exempted, as prior court decisions had done, and despite half of the Haida Gwaii population being non-Indigenous.
The federal Liberal government duplicated Haida title recognition in a similar agreement. The terms were entrenched into what is likely unconstitutional provincial legislation, then passed into law in May 2024. The federal government has yet to legislate its Haida agreement.
Under the Haida agreements, private land ownership on Haida Gwaii was “continued” and protected by the Land Title Act, the provincial Haida Nation Recognition Amendment Act, and a simple contract between Haida and the B.C. government. Fee simple landowners were not parties to the agreements.
Instead of exempting private property from Aboriginal title to ensure absolute clarity of protection, the B.C, government chose to include fee simple title and shield it from Haida exercising control or expropriation by what amounts to a legally suspect contract, confirmed in equally constitutionally suspect provincial legislation.
Ironically, Justice Young referred to the Haida agreement in her Cowichan judgment as evidence Aboriginal title and private property can co-exist: “The question is not whether Aboriginal title can exist over fee simple lands, but whether fee simple interests can exist on Aboriginal title lands. In my view, the law has evolved and the answer to that question is ‘yes,’” she wrote.
Haida petition court for Aboriginal title declaration
A month after the landmark Cowichan ruling, the Haida quietly petitioned the BC Supreme Court to issue a consent Order declaring Aboriginal title to the entirety of the Haida Gwaii archipelago. In equally hushed tones, the B.C. and federal governments supported the Haida’s suit.
The legal action was later justified by the Haida as necessary, because the declaration embeds recognition of Aboriginal title into constitutional law, making it irreversible by future governments.
The province did not issue a public statement on the court declaration. Only when pressed, did Eby and his ministers speak publicly about it. The minister of Indigenous Relations said he didn’t know the declaration of title had been before the court and B.C.’s Attorney General Niki Sharma downplayed it as no big deal.
But the Haida court application was a very big deal.
By the time both the B.C. and Canada governments appeared in court supporting Haida’s declaration of Aboriginal title, all three governments had had a month to parse through the implications of the Cowichan decision.
Certainly, the attorney general’s team would, or should, have known when the province stood up in the BC Supreme Court that a court declaration could strip Haida Gwaii landowners of vital statutory protections under the Land Title Act. Even the judge should have known the potential consequences from the Cowichan case.
Which means, after learning the declaration could essentially remove statutory protections for fee simple title on Haida Gwaii, the B.C. and federal governments walked into court, along with the Haida, and did it anyway.
Haida declaration busted legal precedent
As it turns out, the B.C. Supreme Court judge in the Haida case went further than Justice Young’s Cowichan decision, because the Haida declaration of Aboriginal title blanketed the entirety of their claim – about one million hectares, or 10,000 square kilometres, of land, water and seabed.
By comparison, in the Cowichan case, court found Aboriginal title to 324 hectares of land, less than half the land area claimed by Cowichan in Richmond.
And where the Cowichan case stretched 11 years and 513 trial days from filing their title claim to the final decision, securing the Haida declaration of Aboriginal title from the BC Supreme Court took mere days.
Rather than scrutinizing the strength of Haida’s territorial claim to determine Aboriginal title, the court simply deferred to the agreed-upon title outcome as laid out in a politically partisan agreement negotiated between the B.C. government and Haida, and rubber-stamped and regurgitated in an almost identical Federal government-Haida version.
Private property owners in dark, without an advocate
Despite knowing the Haida Aboriginal title declaration would weaken statutory protections of fee simple land, neither the Haida, nor the two upper level of governments, stood down their court application.
Rather than fully acknowledge and work through the legal effect of the Cowichan decision to ensure protection of Haida private property owners, all three governments steamed ahead.
The Haida agreements and provincial legislation could have been amended to remove private property entirely. Instead, as occurred with the Cowichan court decision, private property owners learned of the Haida title agreement, and the subsequent court declaration of Aboriginal title, after both were signed, sealed and delivered.
In Haida’s case, the original Rising Tide title agreement negotiations were never open to public scrutiny or input. In fact, the Haida’s subsequent application for a declaration for Aboriginal title to the BC Supreme Court might never have been public if not for the nation’s celebratory news release. Neither the province, nor the federal government deemed the unprecedented legal milestone worthy of sharing with Haida Gwaii private property owners, let alone British Columbia voters.
Premier Eby now presents the Haida agreement as his government’s reconciliation success story and the “template” for balancing Aboriginal title and private property rights.
“The best example I can point to is the Haida title recognition recently, where… it was clear that the province of B.C. retains jurisdiction, [and] that private property rights are protected…” Eby said when asked whether private property would be off-the-table in future treaty agreements.
But it’s unclear what protections B.C.’s “jurisdiction” has retained when it comes to Haida land owners.
If the declaration of Aboriginal title on Haida Gwaii has rendered private property unprotected by the Land Title Act, then neither is fee simple property necessarily “confirmed and continued,” as promised in the Haida title agreement and provincial Haida Nation Recognition Amendment Act.
As such, the only protection of private land interests on Haida Gwaii could be a breach-able contract between the Haida and the province, on which private landowners have had no say and are not signatories.
If so, the integrity of private property title may well rest on the word and at the pleasure of the Haida Nation, a scenario that presents as a legal nightmare, not a template to emulate.