No justice for private landowners locked out of Cowichan trial
“The question of what remains of Aboriginal title after the granting of fee simple title to the same lands should be reversed. The proper question is: what remains of fee simple title after Aboriginal title is recognized in the same lands?”
—Madame Justice Barbara Young
When Madam Justice Barbara Young dismissed a petition in June to re-open the Cowichan Tribes trial, she delayed judicial scrutiny of her own controversial 2025 finding of Aboriginal title on private property and capped 12 years of court proceedings which shut landowners out of the legal process that laid siege to the security of their fee simple titles.
The dismissal revealed the uncompromising litigation strategy by Cowichan that kept private property titles within its land claim, while relentlessly blocking those same rights holders from participating in the judicial process. And it showed how the provincial and federal governments, along with the judiciary and the judicial system itself, enabled a litigation strategy that ignored the public interest and deliberately kept private property owners in the dark.
For most British Columbians, Justice Young’s 2025 finding that Cowichan title coexists over private land in Richmond, B.C. came out of the blue. Even local property owners were blindsided. Most had no idea a land claim case was even happening, let alone that their properties were included within it. Young’s subsequent decision to reject the application from Montrose Industries—the largest affected private landowner—to join the case as a defendant was a double whammy.
In one fell swoop, the BC Supreme Court burdened fee simple titles with co-ownership on their land and denied them of judicial voice and power, while upholding Cowichan’s preposterous argument that landowners are “unaffected.”
Advocates welcome the court finding of Aboriginal title over 800 acres of public and private properties and near-shore waters, saying it is the inevitable evolution of reconciliation legislation and Aboriginal case law.
Critics lament the “activist” court that subordinated private property rights and the integrity of the land title system to an illogical, novel theory that fee simple and Aboriginal title can co-exist on the same parcel.
The truth is all that and much more.
Politics, politics, and more politics
There were a multitude of factors and influences that fuelled the trajectory of the case, not least was the evolving political environment in which it played out. But at its core, the Cowichan Tribes 2025 decision and the 2026 Montrose dismissal were driven by the sophisticated litigation strategy of the plaintiff and the weak-kneed defence of the public interest by the two senior governments.
An in-depth Northern Beat investigation into 12 years of Cowichan Tribes court proceedings examines the written submissions, hearing transcripts, legal arguments, litigation strategies and court rulings that culminated in Justice Young’s legally defensible, if societally unjust, refusal to reopen the Cowichan Tribes case to allow Montrose Properties to challenge her court finding of Aboriginal title on its land.
Getting a judge to reopen any case is a long shot. Expecting Justice Young to crack open her own contentious finding to new arguments after more than a decade of proceedings and the reportedly longest trial in Canadian history would’ve been equivalent to a moonshot.
The reopen hearings, Justice Young’s June 29 decision and the remarkable speed at which she delivered her dismissal (a month after hearing arguments) provide an illuminating glimpse into legal strategies and political dynamics that have dominated the years’ long litigation of the Cowichan Tribes land claim.
The first is the blatant disregard by governments, Cowichan, and the courts to the public interests and the rights of private land title holders specifically.
The second insight is the sheer scale of political influence on the litigation strategies of the federal and provincial governments and their refusal to protect private property title subsequent to the 2025 Cowichan decision.
Last is the very wide gap between the truth and how David Eby and his government officials have publicly portrayed the administration’s role in the proceedings and Cowichan’s intentions regarding private fee simple titles.
From false assurances to not-so-veiled threats
Since the finding of Cowichan aboriginal title in Richmond in August 2025, David Eby has railed against the decision. Without taking any measurable action to protect private property, he has nonetheless committed he will “go to the wall” for landowners and assured them “Cowichan is not seeking to take their properties,” which Eby repeated as recently as four days before he called the snap election.
Yet as the former attorney general who issued orders to government lawyers directly affecting their arguments in this case, Eby should have known full well Cowichan’s legal strategy has been unshakably focussed on retaining the option to go after private titles.
In the reopen hearings at the end of May, David Rosenberg, Cowichan’s lawyer, argued strenuously against allowing private property owners a say. And he laid bare a threat central to the group’s legal strategy: If the judge granted Montrose Properties its petition to reopen the trial and add itself as a party to the lawsuit, Cowichan Tribes might challenge the validity of Montrose’s fee simple titles—as in, seek to seize their land.
“And then do we examine whether or not their titles are invalid and defective, including Montrose’s?” Rosenberg asked the court in May.
Cowichan’s land claim has always been designed so that, “if, in the future, the plaintiffs [Cowichan] seek to exercise their title rights on the land to which Montrose Industries has a fee simple interest, then dispute resolution will be required,” Rosenberg said, adding that could take the form of litigation “if that’s necessary.”
If Cowichan does one day decide to dispossess Montrose of its properties, the company can plead its case in court then, Rosenberg said. “Then Montrose will have the opportunity to be heard, avail itself of any defense, including the fact that they didn’t get formal notice.”
At that point, Montrose would be battling to defend its land title against Cowichan’s “senior and prior” Aboriginal title thanks to Justice Young’s 2025 ruling.
Province and Feds constrained by political directives
Since its first filing of a land claim over Richmond properties in 2014, to its closing arguments in the Montrose hearings this year, Cowichan maintained a ruthlessly focussed legal strategy. It kept its title claim as wide as possible, including public and fee simple land titles, while narrowly fixing on the Crown for a remedy.
Early in the lawsuit, under the previous federal and provincial governments, their lawyers pressed Cowichan Tribes to excise private property from its land claim. Cowichan refused.
When Canada—supported by B.C.—asked the court to order Cowichan to at least inform property owners their land was included in the claim, Cowichan “vigorously oppose[d],” wrote Justice Jennifer Power in her 2017 decision.
Property owners need not be involved, Cowichan’s reasoning went, because it was not seeking to invalidate the private titles nor was it asking to dispossess those people of their land. It sought only to hold provincial, federal and municipal governments to account for infringing on their Aboriginal title, leaving the individual landowners who were granted land titles by these entities, “unaffected.”
“The plaintiffs [Cowichan] argue that they have taken an approach in this litigation that fosters reconciliation by involving only the proper parties,” wrote Justice Power.
Canada also petitioned that, failing to make Cowichan inform property owners, the court should order the province to give notice.
The B.C. government balked and the judge declined to make the Cowichan, the province, or any other party to the lawsuit inform property owners.
Justice Power did, however, say any of them—including the other defendants, Tsawwassen First Nation, Musqueam Indian Band and the Greater Vancouver Port Authority— were free to tell residents their properties were part of a land claim.
None did.
‘Leave for another day’ strategy a huge success
Back in 2017, Canada and B.C. also argued that should the lawsuit result in a declaration of Aboriginal title over private property (which it eventually did with Justice Young’s decision in 2025), it would be deemed in rem, which is why landowners should be told.
An in rem decision is binding for the world at large and viewed as conclusive in future litigation. An in personam decision, by contrast, binds only those who were before the court. This distinction matters for Montrose and every other private landowner whose parcels fall within the claim. Because a declaration of Aboriginal title attaches to the land itself and can be used against fee private property owners in future disputes, despite them never having been allowed to participate in the trial.
At the time, Cowichan sidestepped the whole in rem argument by both reassuring the court it wasn’t going after private land titles, while simultaneously threatening it might change its mind if proceedings didn’t go Cowichan’s way.
But there was one caveat. Time and again, Cowichan couched its commitment to not go after private property in conditional language such as “at this stage,” or “only if necessary.” For this reason, the court need not worry about the potential impact a later declaration of Aboriginal title would have on private property, Cowichan argued in 2017.
“[Cowichan] argue that this approach leaves for another day, and only if necessary, the consequences of a declaration of aboriginal title on private landowners,” Justice Power wrote.
Since Cowichan only wanted a remedy from the Crown for infringing on Aboriginal title—upgraded to “unjustified infringement” in 2023—the litigation was strictly between Cowichan Tribes and the Crown.
“Private landowners will have an opportunity to make all arguments, including that they were not given formal notice, in any subsequent proceedings against them if any such proceedings are brought,” Power wrote, accepting Cowichan’s submission.
Justice Power’s ruling later served as a key element in the architecture of Justice Young’s 2025 and 2026 court rulings.
Henceforth, the case advanced as a dispute between Cowichan and governments and none of the other parties challenged the exclusion of landowners. And at no point did either level of government ask the court to add a property owner as a defendant.
Only when Montrose petitioned to be added as a party in January 2026 did political pressure force the two senior levels of government to support adding a fee simple title owner as a party to the lawsuit. Richmond and the Greater Vancouver Port Authority also supported the application, while the two remaining defendants, Tsawwassen and Musqueam, remained neutral.
But belated support for landowner participation in the Cowichan proceedings after the trial was complete, was too little too late. Justice Young’s 2026 court judgment noted Canada and B.C.’s support was a reiteration of their 2017 submissions asking the court to give notice to landowners, which she said had already been decided.
“While Montrose did not participate in the trial, the fact is these issues have been fully canvassed over the course of a lengthy trial by well-resourced parties,” wrote Justice Young.
Even Cowichan’s legal team probably did not predict how wildly successful its “leave it for another day” strategy would prove to be.
Governments were not allowed to argue against Aboriginal title
Cowichan’s single-minded litigation strategy could never have succeeded so well without the help of the federal and provincial governments.
After Justice Power’s ruling in 2017, the B.C. and federal government legal strategies were revamped to make a “decisive break with the status quo” and adopt a new “recognition of rights” framework that essentially accepts Aboriginal rights and title wherever possible, without requiring legal proof.
In 2019, on her last day as federal attorney general, Jody Wilson-Raybould’s litigation directive took effect. It forbade arguing extinguishment, surrender or abandonment of Aboriginal title on private property, and instead directed lawyers to prioritize reconciliation, Indigenous rights recognition, and negotiation over adversarial litigation, including ensuring “that language and tone are not unnecessarily pointed or dismissive.”
The federal directive followed the federal Liberal government’s new expansive approach for dealing with Indigenous peoples. Adopted as early as July 2017, the so-called Principles are a 10-point guide described as being rooted in section 35 of the Constitution, guided by the United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP] and informed by the Truth and Reconciliation Commission report.
“The existence of Indigenous rights is not dependent on an agreement and, where agreements are formed, they should be based on the recognition and implementation of rights and not their extinguishment, modification, or surrender,” instructs principle number five.
“In litigation, this means, above all, approaching issues in a way that does not begin and end with a denial of Aboriginal rights,” instructed Wilson-Raybould.
In 2018, the John Horgan government committed to following the Principles as well, and in 2022, former BC attorney general, David Eby, followed Wilson-Raybould’s lead, issuing a similar “rights-based” set of litigation directives shortly before he left the post to run for leader. His directives rely on the Joint Agenda: Implementing the “Commitment Document,” which aligns with UNDRIP.
Canada and BC used weakened arguments
Instead of arguing that Aboriginal title was extinguished (often with compensation) on land granted to private title, the Government of British Columbia argued merely that the rights of exclusive use and occupation conferred by Aboriginal title and fee simple title made coexistence incompatible.
This restrained defence—focusing on incompatibility, coexistence constraints, and the limits of declaratory relief rather than absolute denial—reflected the influence of the litigation directives that continue to bind Crown counsel to this day.
Unable to rely on the extinguishment argument, British Columbia instead advanced a novel theory that Aboriginal title was “suspended” on fee simple title. An argument without case study or court precedent, which Justice Young noted in her judgment, it was dismissed.
As the most senior Crown, the Government of Canada wields the highest authority in terms of arguing extinguishment, yet it too abandoned the argument completely in 2018, according to Justice Young’s 2025 decision.
Without senior governments arguing extinguishment, court was unconvinced
Eby and his attorney general Niki Sharma are both on record saying extinguishment is not a valid argument for the province to argue.
Tom Isaac, widely viewed as one of the foremost litigators and experts on Aboriginal law in B.C. and Canada, disagreed. The BC Supreme Court ruled extinguishment is a “live issue,” he said, meaning both levels of government should have argued extinguishment and their defence of fee simple title owners was hampered by not doing so.
“There’s a 2018 BC Supreme Court decision that expressly confirms that extinguishment is a valid, untested defence,” Isaac said. “The only law we’ve got in this province is actually quite clear that extinguishment is an actual valid argument. I know that case because I argued it and won it.”
Only the City of Richmond argued that the historical fee simple grants extinguished or permanently displaced Aboriginal title. But without the two senior levels of government arguing alongside the city, the argument was weakened and the court was unconvinced.
Significantly, the private owners who might have filled that defence gap and argued on their own behalf, were never allowed in the courtroom. Despite Cowichan calling a parade of witnesses to give oral history and other evidence to support its land claim, not one landowner was summoned as a witness.
Meanwhile, Cowichan’s counsel was operating under virtually no constraints. With the senior governments forbidden from arguing extinguishment and private owners excluded from the courtroom, the court accepted Cowichan’s framing that extinguishment was a non-issue and landowners were unaffected.
Cowichan argued hard toward its end goal of securing Aboriginal title for the whole claimed area and ultimately won Aboriginal title for about 40 per cent of its asserted territory in Richmond. Unsatisfied with only a portion of the claimed area, Cowichan said it will appeal the ruling.
Cowichan ‘wants it both ways,’ says Montrose lawyer
Arguing in the reopen hearings for Montrose this year, McMillan lawyer Joan Young (no relation to Justice Young) reasoned that the 2025 Aboriginal title declaration over her client’s properties will have the impact of a legally binding in rem finding in future litigation. Just as the governments of Canada and B.C. had argued prior to 2017.
“I don’t know how you defend against a trial that’s already happened and the findings have already been made. It’s very difficult,” Young said in an interview after the hearing.
The plaintiffs “want it both ways,” Young told the judge in the hearing. “They argued strenuously against any kind of formal notice being provided to property owners, such as Montrose, but they continue to expressly preserve their rights to go after private property and seek declaratory relief over that over those private lands.”
And while denying to the court that landowner titles are impacted, Cowichan’s own application for intervenor status in a New Brunswick court case characterized the 2025 Aboriginal title declarations over private property in Richmond as in rem, Young told the court.
In her dismissal of the Montrose petition, Justice Young did not engage the in rem argument, saying as she did in her 2025 decision that the matter had been fully addressed in 2017 when Justice Power accepted Cowichan’s “leave for another day” argument.
Yet by 2026, that reasoning failed to keep up with the evolving situation. The consequences of a declaration of Aboriginal title that senior governments had warned about nine years earlier had arrived. And they came by way of Young’s own 2025 Aboriginal title declarations.
Rather than acknowledge the circumstances and impact on landowners on which the 2017 judgment relied, had changed, Justice Young concluded the matter resolved.
Trial in absentia’
Another argument that failed to gain purchase with the judge was Montrose’s assertion that reopening the case was “a matter of procedural fairness.”
Montrose lawyer, Joan Young, argued that it was “fundamentally unfair” for Cowichan—after refusing to name Montrose as a party—to then be allowed to obtain a court judgment that “grossly impairs their existing rights” without Montrose ever having the opportunity to present its position.
Montrose had suffered immediate prejudice, a fundamental shift in its legal position, and can no longer confirm “clear title” as required under lending agreements, Young told the court.
“They went from being an owner of land with an indefeasible title, to one in which they can no longer exercise their interests in their fullest form.”
The 2025 Cowichan judgment interrupted a $43 million warehouse construction project with $7.5 million already invested, according to court testimony from Montrose owner and CEO, Ken Lowe.
Following that court decision, the company’s lender withdrew $35 million in financing, “because of the issues raised by the reasons for judgment,” causing tenant negotiations to fall apart. Advanced discussions for a multi-million-dollar gas upgraded facility with Fortis, Enbridge, and partner companies also ceased, Lowe said.
“[Montrose Industries] have, it seems, become co-owners of land they thought they owned by themselves,” lawyer Young said.
“If the Aboriginal title holder is found to be a co-owner, coexisting with Montrose, it raises questions about whether Montrose can sell the land without the consent of the Aboriginal title holder.”
Young referenced comments by Cowichan lawyer Rosenberg confirming this concern: “I fully anticipate… [a sale] would be with the consent of the Cowichan Nation and it would be with some accommodation from the Crown to the Cowichan Nation,” Rosenberg said in a CKNW radio interview with Jas Johal following the 2025 decision.
In the reopen hearing, Montrose also relied on the Wolastoqiyik Nation decision in the New Brunswick Court of Appeal to support its petition to reopen the Cowichan trial. “No court should exercise its discretion to grant a declaration of Aboriginal title over privately owned lands where the declaration would issue without the private landowner’s participation,” Montrose’s counsel said.
But while Justice Young relied on the earlier Wolastoqiyik Nation New Brunswick Court decision to defend her 2025 Aboriginal title finding, she ignored the subsequent Appeal decision that reversed course and essentially supported the argument Montrose should be added as a party.
“How could she?” asked one lawyer familiar with the case. To acknowledge a higher court ruling, albeit in another jurisdiction, that contradicts the Cowichan decision would give merit to Montrose’s argument and support reopening the trial.
Court rejects Land Title Act protections
The City of Richmond was the most consistently aggressive in defence of private landowners throughout the proceedings. Besides arguing that fee simple land grants extinguished Aboriginal title, Richmond submitted that the indefeasibility provisions of the Land Title Act were a shield that protect fee simple title as conclusive and immune from attack.
Under British Columbia’s Land Title Act, indefeasibility means that a registered fee simple title is conclusive evidence of ownership and cannot be defeated or made void except in the limited circumstances the Act itself lists (such as fraud in which the owner participated, unpaid taxes, or Crown reservations). It is the central feature of the province’s Torrens system and the mechanism that gives landowners security of title so that others can rely on the land title register without investigating the full history of the land.
In her 2025 decision, Justice Young noted that Richmond further argued the Land Title Act is integral to the functioning of society: “A declaration of Aboriginal title will destroy the land title system and the [Act], wreak economic havoc and harm every resident in British Columbia.”
Inexplicably, the judge dismissed the concern as “not a reasoned analysis on the evidence.”
Justice Young’s ruling on protections in the Land Title Act was even more bewildering.
On the one hand, Young accepted that “the endurance of fee simple titles, security of title and private property ownership is fundamental” to socio-economic development. But she questioned whether the indefeasibility provisions of the Land Title Act achieve that security, despite indefeasibility being the core mechanism by which the Act and the Torrens system create security of title.
Then the judge dove deeper still, rejecting the province’s authority to even pass legislation guaranteeing the security of land title in the face of Aboriginal title on the same parcel. And she compared the indefeasibility provisions in the Land Title Act as tantamount to extinguishment.
Despite the property title system falling within provincial jurisdiction, Justice Young apparently believes only the federal Crown has jurisdiction over extinguishment. All of which led to her 2025 finding that B.C.’s Land Title Act protections don’t apply on declared Aboriginal title land.
Stripping away Land Title protections surprised Aboriginal law experts on all sides. And while many are split on whether the province has the power to argue extinguishment of Aboriginal title, few have supported the concept that the indefeasibility aspect is unlawful.
Ultimately, Justice Young’s 2025 ruling found Crown had infringed, in some cases, unjustifiably, on Cowichan’s Aboriginal title when it granted fee simple titles in Richmond. The judge conceded the legal question of co-existing fee simple and Aboriginal titles was “unsettled,” but told both senior governments to negotiate in good faith the “reconciliation” of private and public property interests with Aboriginal title.
The Haida agreement set precedent
To understand how the provincial and federal governments will “reconcile” private property and Aboriginal title interests in these circumstances, the public might look to the Haida agreement in the northwest.
While Justice Young’s ruling that Aboriginal title and fee simple title could co-exist was precedent-setting for a court, the David Eby government had already crossed this Rubicon a year earlier when it recognized Aboriginal title over private land in its provincially negotiated agreement with Haida Nation in 2024.
Justice Young cited this fact in the Cowichan decision but her ruling went further, not only declaring Aboriginal title a “prior and senior right,” but that it overrules private property protections in the Land Title Act when the two exist on the same parcel. It is this aspect in particular that has rocked landowners, investors, economists, lawyers and others. Private land ownership is a fundamental underpinning of a democracy and a free economy.
When pressed in parliament by the Opposition, Prime Minister Mark Carney said he disagrees with the Cowichan decision. Premier Eby has both criticized the decision and vowed to “go to the wall” for private landowners. Yet neither the provincial nor federal governments have introduced any measures to protect private property.
Instead, less than a month after the Cowichan ruling, federal and provincial governments worked quickly and covertly in lockstep with Haida to constitutionally enshrine its land title agreement with a court declaration of Aboriginal title across the entire Haida Gwaii archipelago. Due to the Cowichan ruling, this leaves private property owners without the indefeasibility protections of the Land Title Act.
Meanwhile, landowners across the province are asking, how did we end up in this place where private land title is no longer a sure thing?
Reopening the trial an ‘abuse of process,’ wrote Justice Young
In dismissing the Montrose dismissal, Justice Young also refused to re-open the trial in even a limited way, such as allowing written submissions-only (Montrose’ suggested alternative to a full re-opening) to allow the company to argue why it should not have been excluded and how it had been affected by the ruling.
Justice Young’s ruling accepted Cowichan’s opposing arguments that Montrose had no business being a party to the case because property owners were not affected, had no new arguments to bring to the table, and would potentially open the floodgates to untold other landowners wanting a say as well.
Cowichan further argued, and the judge apparently agreed, that to give even one landowner standing as a belated party to the trial would be tantamount to relitigating the case and therefore an abuse of the judicial process. It would be an assault on the finality of court decisions and a waste of the court’s time and resources.
Even asking to reopen the trial was an affront, according to Cowichan’s counsel David Rosenberg, because it carried with it the temerity that Madame Justice Young’s decision might have gotten it wrong—never mind that literally every party in the trial, including Cowichan Tribes, is appealing her 2025 decision.
Reopening, Justice Young wrote in her decision, would violate principles of finality, judicial economy, consistency, and the integrity of the process and could incentivize third parties to take a “wait-and-see” approach and apply to be added only after reasons are released if they dislike the result.
The petition was ultimately dismissed by Justice Young as an abuse of process for re-litigation with the reasoning that the proper route for Montrose to challenge the 2025 decision is an appeal to the Court of Appeal, not a return to the trial judge.
Young ordered the provincial and federal governments to negotiate with Cowichan. Presumably all three will continue wielding the same legal strategies. None of the terms, discussions or end goals have been made public.
Scrutiny deferred is justice denied
Montrose is appealing the dismissal, which effectively pauses all appeals to the 2025 Cowichan decision until it’s complete.
Prime Minister Mark Carney and David Eby, as premier, both denounced the Cowichan decision but have been silent about implementing any private property protections. When pressed, Eby said his government would appeal the Cowichan decision to protect fee simple title—a weak, risky prospect that puts any resolution years away.
Pending a change in government, no calvary will be riding to the rescue of besieged property owners.
As it stands, Richmond landowners are now burdened by “co-ownership” with the negligible hope of legal redress in a faraway appeal process they themselves will not likely be a party to. Alternatively, they could initiate proceedings against Cowichan and both governments, much like Montrose tried to do. Worst case, Cowichan will move to dispossess them of their titles and seize Cowichan title lands by judicial force.
So it goes that private landowners, relegated to the sidelines by a disinterested court and ideological governments, remain locked out of the process deciding the fate of the largest financial investment many will ever make in their lives. Instead of British Columbians having a say, the destiny of their fee simple titles now rests in the same hands that allowed them to be stripped of protections in the first place.