The Supreme Court of British Columbia has recognized Cowichan Aboriginal title over part of Lulu Island in Richmond and, in the same breath, declared that certain Crown and municipal fee-simple titles over those lands are “defective and invalid.” The judgment orders Canada and BC to negotiate in good faith with Cowichan to reconcile those interests.
In Cowichan Tribes v. Canada, Justice Young held that Cowichan have title to a defined portion of their historic village of Tl’uqtinus on the south arm of the Fraser River and a constitutionally protected right to fish there for food.
The ruling is blunt about the status of certain registered titles within the titled area: except for specified federal “Vancouver Airport Fuel Delivery Project Lands,” Canada’s and Richmond’s fee-simple interests are not valid against the Cowichan as title holders.
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In effect, this is more than a paperwork defect. It elevates the constitutional force of Aboriginal title over those recorded estates.
The court also addressed the province’s land-title regime head-on. “Aboriginal title lies beyond the land title system,” the reasons state, finding that sections 23 and 25 of the Land Title Act—the provisions that ordinarily anchor indefeasibility—do not apply to Aboriginal title lands.
Limitations and equitable shields such as bona fide purchaser and laches did not bar the claims. The court found historical Crown grants over Cowichan village lands unjustified and held the province lacks jurisdiction to extinguish Aboriginal title.
The immediate operational consequence is negotiation. BC must work with Cowichan to reconcile “Crown granted fee simple interests held by third parties” within the titled area. That directive, coupled with the rejection of indefeasibility as a defence against established Aboriginal title, introduces real uncertainty for planning, financing, and permitting on affected parcels until agreements are reached.
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2 Responses
Canadians need to realize that the courts can only enforce Canadian laws, passed by Canadian governments. The Trudeau Liberal government adoption of UNDRIP, recommendation made by the UN, most of whom have no “Indigenous Populations” was a travesty to Canadians and needs to be reviewed out in the open, rather than being passed without public comment.
Looks bad. Canada had better get a backbone and start standing up for the rights of Canadians.