The leader of British Columbia’s official Opposition is calling on the federal government to refer a landmark Indigenous land claim ruling to the country’s highest court.
The decision, handed down by the B.C. Supreme Court earlier this month, affirmed that the Cowichan Tribes have Aboriginal title in a 750-hectare land parcel in Richmond, which includes city and port lands, farms, golf courses and commercial properties.
The B.C. government has said it will appeal the ruling, arguing clarity is needed on the matter and that the B.C. ruling could have unintended consequences for private property rights.
In a letter to federal Justice Minister and Attorney General Sean Fraser, BC Conservative Leader John Rustad said the case should be referred directly to the Supreme Court of Canada, arguing the current situation has created uncertainty.
“This judgment raises profound questions of law that go well beyond British Columbia,” Rustad said in a statement.
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“On the one hand, it suggests Aboriginal title may enjoy priority over private ownership, but at the same time it declines to make a clear declaration about fee simple lands. These two positions cannot be reconciled without guidance from the highest court.”
Under the Supreme Court Act, the federal cabinet is permitted to send cases directly to the Supreme Court of Canada, bypassing lower courts.
The Cowichan Nation said it was not seeking to recover any privately held lands in the court case but wanted lands held by government returned to them.
The ruling in Cowichan Tribes v. AG Canada et al. was launched in 2019 and resulted in the country’s longest-ever trial.
Four First Nations, Quw’utsun Nation, Cowichan Tribes, along with the Stz’uminus First Nation, Penelakut Tribe, Halalt First Nation and all other descendants of the Cowichan Nation, filed the challenge seeking to recover their government-held lands near the mouth of the Fraser River, along with an Aboriginal right to fish the south arm of the Fraser River for food.
Land in the claim area is currently owned by the federal Crown, the B.C. government, the Vancouver Fraser Port Authority, the City of Richmond and private third parties.
The defendants in the case were not only the federal government, the B.C. government and the port authority, but also the Tsawwassen First Nation and the Musqueam Indian Band.
In announcing that the province would appeal, B.C. Attorney General Niki Sharma cited the ruling as an example of why the province prefers to resolve land claims through negotiation, rather than the court system.
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