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| Michael Lesage |
In reaching its decision, the court further disregarded nearly a millennium of jurisprudence dating to the Magna Carta, including by failing to provide affected non-parties with either notice or a chance to be heard. Given the process employed to reach this decision and its widespread implications to property rights and government legitimacy in Canada, it begs the question of whether Canadian courts are fit for purpose.
In its judgment, the court declared that the Cowichan tribes hold unextinguished Aboriginal title over 1,846 acres of prime Richmond, B.C., real estate, an area that includes hundreds of privately owned parcels registered under British Columbia’s Torrens land-title system. The title declared is not some modest hunting or fishing right. It is a collective, inalienable, sui generis interest that is “superior but shared.” Translation: every existing fee-simple owner now holds their title subject to an overlying Cowichan interest, which can be asserted at any time, on terms yet to be negotiated between the band and the Crown.
Though B.C. uses a Torrens system, long celebrated as the gold standard of indefeasibility, fee simple title, has been declared junior to an Aboriginal title that survived undetected beneath it for 150 years. The court reached this result by applying the modern “clear and plain intent” test for extinguishment to actions taken in the 1850s and 1860s. The 14 Douglas treaties, the reserve allocations, the effective cessation of new treaties after the Hudson’s Bay Company charter expired: none contained the precise wording now required, so Aboriginal title was never extinguished. The fact that British Columbia in 1860 was a wilderness frontier with a very small population or that the land was worth pennies an acre was irrelevant. In effect, 19th-century colonial administrators were judged by 2025 standards and found wanting.
In a curious move, the court made a declaration in rem, binding the world, but omitted requiring notice to be provided to affected owners on the basis that the consequences were “unclear” and the interest too “unique” to trigger the normal obligations of procedural fairness. This reasoning flies directly in the face of the Ontario Superior Court’s 1988 decision in Kakeway v. Canada, [1988] O.J. No. 297: “This defies all rules of law and equity, that a person’s rights may be adversely affected without notice … result[ing] in a complete denial of natural justice.”
Post ruling, the unclear consequences quickly came into focus. The Cowichan lawyer went on record stating that any fee simple owner who attempted to sell would require the consent of the Cowichan. There have likewise been reports that lenders are failing to renew mortgages and the mayor of Richmond belatedly advised affected homeowners that the court had made a decision that may affect the status and validity of land ownership. Due to the uncertainty, at least one homeowner dropped their listing price 29 per cent. Even Alaskan tribes have weighed in, to demand a say on Canadian resources projects going forward.
That the court’s ruling does violence to more than 700 years of common law, which is intended to promote stability and consistency, should also be noted. As recently as 2000, the Supreme Court of British Columbia recognized fee simple title to be: “An estate of virtually infinite duration conveyed or granted absolutely to a person and his or her heirs forever; also known as FEE SIMPLE ABSOLUTE. There are no conditions, restrictions, or limitations on the holder of such an estate, and the property is freely alienable or hereditable. The holder of the estate is known as the tenant in fee simple (see tenant) because, technically, he or she is merely a tenant of the Crown, though he or she has the highest and most extensive estate possible [emphasis added by author]. However, to all intents and purposes he or she is the absolute owner…” (British Columbia (Attorney General) v. Perry Ridge Water Users Assn., 2000 BCSC 1357).
To the extent the court considered financial information, it had little relevance to the dispute before it. For example, the court noted that $4.5 billion in GDP was attributable to the Port of Vancouver. Of course, the court did not tease out what portion of that was attributable to native labour over the years versus non-native labour, or the respective capital contributed by each group, or the improvements made to the land itself (i.e., the betterment concept from its prior undeveloped and unserviced condition). The court was almost certainly also in the dark that residential property comprised almost 50 per cent of B.C. residents’ net worth or that real estate contributes nearly 20 per cent of provincial GDP.
Far from healing old wounds, the court’s ruling has ignited fresh resentment, eroded public confidence in the courts and judiciary, and left ordinary Canadians wondering whether the rule of law protects everyone equally — or only those who the court, in its self-proclaimed wisdom, deems deserving. If this is the new face of reconciliation, it risks pitting one citizen against another, fracturing the very society it had hoped to mend.
Read the full article here.
Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. He is also a former bencher at the Law Society of Ontario. You can email him at michael@michaelsfirm.ca.
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