Aboriginal Rights and Title

Here is the information I posted on the Lasqueti email list December 2

Subject: [Lasqueti Email List] news release from Quw'utsun (Cowichan) Nation

Quw'utsun Nation responds to misleading and false information regarding Aboriginal title case

https://watershedsentinel.ca/article/the-quwutsun-judgement/

(It is also available at https://cowichantribes.com/tribes-governance/press-releases  but you have to page down a bit, as it's the second press release on that page, and will move down the list as they issue more.)

This is the first paragraph of the news release:

   Richmond Mayor Malcolm Brodie, Premier David Eby, and other
   politicians have recently made public statements about the Quw’utsun
   (Cowichan) Nation’s Aboriginal title case and the effect of the BC
   Supreme Court’s judgement on individual private property owners.
   These statements are, at best, misleading, and at worst,
   deliberately inflammatory.

You can read the BC Supreme Court Reasons for Judgment at https://www.bccourts.ca/jdb-txt/sc/25/14/2025BCSC1490.htm

Today (Dec 5) I learned about another site with a well-written and well-documented explanation of the history, legal precedents and ways that our governments can and should respond to the situation. It's titled Setting the Record Straight on the Cowichan Title Decision.  I recommend that everybody who's interested read it.

https://khelsilem.substack.com/p/setting-the-record-straight-on-the

Dec 7 - Two additional sites, with slightly different points of view, worth reading:

https://adampolsen.substack.com/p/indigenous-relations-letting-go-of?r=3...

https://www.firstpeopleslaw.com/public-education/blog/correcting-misconc...

January 2  -  I let myself be intimidated by the length of the Reasons for Judgment. There is an 8 paragraph (two of them quite long) Executive Summary that gives a brief summary of the judgments and decisions made, and points to the paragraphs in the longer (nearly 800 pages) document.  Here is the text of the Executive Summary;

EXECUTIVE SUMMARY

[1]            The plaintiffs, on their own behalf and on behalf of the descendants of the historic Cowichan Nation, brought this action seeking a declaration of Aboriginal title to their traditional village of Tl'uqtinus on the south arm of the Fraser River, and to its surrounding lands and submerged lands. They also seek a declaration of an Aboriginal right to fish the south arm of the Fraser River for food.

[2]            The Claim Area, which the plaintiffs call the Lands of Tl'uqtinus, is located on what is now the south shore of Lulu Island, across from Tilbury Island, in Richmond, British Columbia. Today, land in the Claim Area is owned by the federal Crown, the Vancouver Fraser Port Authority (“VFPA”), the City of Richmond (“Richmond”), and private third parties. It covers approximately 1,846 acres of land, as well as certain surrounding lands held by Canada or Richmond. See the map attached to the reasons for judgment as Schedule “B”, depicting the Federal Tl'uqtinus Lands and the Richmond Tl'uqtinus Lands.

[3]            Six defendants opposed the plaintiffs’ claim: Canada, British Columbia, Richmond, the VFPA, Tsawwassen First Nation, and the Musqueam Indian Band.

[4]            The trial commenced in September 2019. There were a total of 513 trial days. The Court heard oral history evidence and considered a substantial volume of historical documents and ethnographic evidence. Expert evidence was tendered in fields including archaeology, socio-cultural anthropology, history, ethnohistory, ethnogeography, ethnobotany, ethnoecology, genealogy, historical geography, cartography, cartology and transportation economics.

[5]            The plaintiffs have established Aboriginal title to a portion of the Claim Area, including a strip of submerged lands, referred to in the reasons for judgment as the “Cowichan Title Lands”. They have also established a right to fish the south arm of the Fraser River for food.

[6]            This case raised complex, and in many instances, novel issues. The following is an overview of the Court’s central findings:

•         The Cowichan (Quw’utsun mustimuhw) were an Indigenous people comprised of 11 local groups prior to and at the time of European contact in the early 1790s, and at the time the British Crown asserted sovereignty in British Columbia at 1846 and after (at paras. 463, 498). The members of the Cowichan Tribes, Stz’uminus First Nation, Penelakut Tribe, Halalt First Nation, and Lyackson First Nation are the descendants of the historic Cowichan people and the 11 local groups. As the modern-day successor groups to the Cowichan as an Indigenous people, the four plaintiff bands and the Lyackson are the proper rights holder for Aboriginal rights and title in this case (at paras. 523, 1654).

•         Historically, the Cowichan occupied several winter villages on the east coast of Vancouver Island from what is now Cowichan Bay to the south to as far north as Chemainus. They also had winter villages on the southern Gulf Islands, including Kuper (Penelakut) Island, Thetis Island, Valdes Island, and Willy (Halalt) Island.

•         The Cowichan relied on fishing, gathering, and hunting for their food and travelled to various regions to exploit resources. Their seasonal round began in the spring on Vancouver Island and the Gulf Islands harvesting fish, shellfish and camas, plus some sea mammals, birds, and game.

•         Every summer, the Cowichan travelled en masse to their permanent post and beam village at the Lands of Tl’uqtinus on the south arm of the Fraser River, where they lived and fished — primarily for salmon — and harvested resources together.

•         The plaintiffs have established Cowichan Aboriginal title to a portion of the Claim Area, the Cowichan Title Lands. Prior to, at, and after 1846, the Cowichan sufficiently and exclusively occupied their permanent village, its surrounding lands, and the strip of submerged lands in front of the village at Tl'uqtinus (at paras. 1241–1246, 1535–1538, 1573– 1578, 1649–1653).

•         In 1853, Governor James Douglas told the Cowichan that the Queen had given him a special charge to treat them with justice and humanity, so long as they remained at peace with the settlements. This was a solemn promise that engaged the honour of the Crown, which is a constitutional principle that requires the Crown to act honourably in its dealings with Indigenous peoples (at paras. 1722, 1726–1727, 1730).

•         In 1859 and 1860, Douglas appropriated — essentially, meaning removed or set apart — Indian settlements from the Crown’s land disposition processes (which included sale and pre-emption). These settlements were set aside for the purpose of eventual Indian reserve creation (at para. 1838).

•         At that time, the Cowichan continued to occupy their village at Tl'uqtinus and its surrounding lands. It was an “Indian settlement” as colonial officials understood that term. Nonetheless, the Cowichan’s settlement at Tl’uqtinus was never established as an Indian reserve for the Cowichan. Instead, the Lands of Tl’uqtinus were sold to settlers without the Cowichan’s knowledge (at paras. 1817–1818).

•         Between 1871–1914, Crown grants of fee simple interest were issued over the whole of the Claim Area, including the Cowichan Title Lands. The first purchase of Cowichan Title Lands was made by Richard Moody who was the first Chief Commissioner of Lands and Works for the Colony of British Columbia and was tasked with ensuring that Indian reserves were created at sites of Indian settlements. Because occupied Indian settlements were appropriated, and could not be sold, most of the Crown grants in the Cowichan Title Lands were made without statutory authority (at paras. 2033, 2045, 2056, 2069, 2070).

•         British Columbia was admitted into Canada on July 20, 1871 under the BC Terms of Union. The effect of Article 13 of the BC Terms of Union was to extend appropriation of Indian settlement lands post‑Confederation, limiting the Province’s ability to sell the land without first dealing with the Cowichan’s interest. As a result, the post-Confederation Crown grants in the Cowichan Title Lands were made without constitutional authority because they were made under legislation that was constitutionally limited by Article 13 (at paras. 2080–2081).

•         The Crown grants of fee simple interest deprived the Cowichan of their village lands, severely impeded their ability to fish the south arm of the Fraser River, and are an unjustified infringement of their Aboriginal title. Subsequent dispositions of the Cowichan’s land, including BC’s vesting of Richmond with fee simple interests and the soil and freehold of highways, are also unjustified infringements. Additionally, some of Canada and the VFPA’s activities on the Cowichan Title Lands unjustifiably infringe the Cowichan’s Aboriginal title (at paras. 2670, 2852).

•         The Province has no jurisdiction to extinguish Aboriginal title. The Crown grants of fee simple interest did not displace or extinguish the Cowichan’s Aboriginal title (at paras. 2188–2190).

•         Aboriginal title lies beyond the land title system in British Columbia. Sections 23 and 25 of the Land Title Act, R.S.B.C. 1996, c. 250 do not apply to Aboriginal title. Accordingly, Richmond’s reliance on ss. 23 and 25 as a statutory defence is not made out. Richmond’s fee simple interests in the Cowichan Title Lands are not conclusive evidence that Richmond is indefeasibly entitled to that land as against the Cowichan as Aboriginal title holders (at paras. 2258–2262).

•         BC and Richmond advanced limitations defences, as well as equitable defences of bona fide purchaser for value without notice and laches. The plaintiffs’ invocation of estoppel to the defences is not made out (at paras. 2881, 2890). Nevertheless, the plaintiffs’ claims are not time‑barred by limitations statutes (at paras. 2902–2905), and the equitable defences are not made out (at paras. 3150–3151).

•         The plaintiffs have established a right to fish for food on the south arm of the Fraser River. Prior to, at, and after European contact in the early 1790s, the Cowichan fished the south arm of the Fraser River for food. This practice was integral to their distinctive culture, and continues to be so today (at paras. 3505, 3509–3511). The Cowichan’s historical fishing practice was not dependent on permission from the Musqueam or any other Indigenous group (at para. 3471).

[7]            Accordingly, the Court makes six declarations, which are summarized below:

•        The Cowichan have Aboriginal title to the Cowichan Title Lands within the meaning of s. 35(1) of the Constitution Act, 1982;

•        The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in certain highway lands in the Cowichan Title Lands, unjustifiably infringe the Cowichan’s Aboriginal title;

•        Except for Canada’s fee simple titles and interests in certain lands (the “Vancouver Airport Fuel Delivery Project Lands”), Canada and Richmond’s fee simple titles and interests in the Cowichan Title Lands are defective and invalid;

•         With respect to the Cowichan Title Lands, Canada owes a duty to the Cowichan to negotiate in good faith reconciliation of Canada’s fee simple interests in the Vancouver Airport Fuel Delivery Project Lands with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown;

•         With respect to the Cowichan Title Lands, BC owes a duty to the Cowichan to negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown; and

•         The Cowichan have an Aboriginal right to fish the south arm of the Fraser River for food within the meaning of s. 35(1) of the Constitution Act, 1982.

[8]            See para. 3724 of these reasons for the declarations of this Court. See also the map attached to these reasons as Schedule “A”, which is provided as a visual aid, where the black line depicts the boundary of the Cowichan Title Lands.

This is followed by a multi-page detailed Table of Contents, and then the Reasons for Judgment start with paragraph 1 and go on through paragraph 3728.

You can read the entire BC Supreme Court Reasons for Judgment at https://www.bccourts.ca/jdb-txt/sc/25/14/2025BCSC1490.htm