The First Nations Leadership Council (FNLC) said it’s “deeply disturbed and angered” by what it calls alarmist comments by B.C. Conservative leader John Rustad about Aboriginal title rights.
In an Aug.7 ruling, the B.C. Supreme Court found the Cowichan Nation holds Aboriginal title to more than seven square kilometres of land at their former village site in Richmond, as well as the right to fish the south arm of the Fraser River.
The court declared that most of Canada’s and Richmond’s fee simple titles in the area are invalid, but allowed the parties 18 months to negotiate a resolution.
Rustad has repeatedly said that Indigenous title rights can’t coexist with fee simple private property rights.
He has called on Ottawa to submit a reference question to the Supreme Court of Canada, which would allow the top court to issue non-binding advice on the case.
In a letter to Premier David Eby on Oct. 19, Rustad also called for a pause on all negotiations between the province and First Nations until the Supreme Court of Canada has provided clarity.
“The ruling has created immediate and serious uncertainty about the security of private property ownership in British Columbia,” said Rustad in the letter. “Continuing now risks compounding the harm and further deepening public division,” he said.
Rustad reiterated his concerns on Monday, saying the ruling threatens potential investment in B.C.
The FNCL said it’s “appalled” at Rustad’s rhetoric around Aboriginal title and private property rights.
The council said it is also concerned about a letter that some Richmond residents received from the city, suggesting that their property’s title could be affected by the Court’s decision. The letter said there will be an information session for residents on Oct. 28 around the implications of the court decision.
“Aboriginal title and fee simple private ownership can and do co-exist,” said the FNCL in a statement on Monday. “Reconciliation through recognition of this legal and political fact is not a threat to the stability and prosperity of British Columbia; it is the foundation on which it is built. Good faith negotiation based on recognition of First Nations’ basic human rights is the only path forward.”
Eby said on Monday the anxiety felt by private property owners around the Cowichan title decision is “totally reasonable.”
He said the province doesn’t support submitting a reference question to Canada’s Supreme Court, saying the appeals court can best consider the context surrounding the case.
“We don’t want a decision made in a abstract, we want a decision made on the facts,” said Eby.
B.C. Attorney General Niki Sharma said following the ruling in August that the province plans to appeal the Cowichan title decision. On Tuesday, she said her team is still working on the appeal.
The province argued in the case that having private title to land means the suspension and disposition of Crown and Aboriginal title.
“These are very complicated legal issues and our path has always been to try to find a path for reconciliation and respecting rights and title of all people,” said Sharma.
David Rosenburg, who served as senior legal counsel to the Cowichan Nation, outlined the case at the Union of BC Municipalities convention in Victoria last month.
“This case was never about challenging fee simple with respect to privately owned land. The case was brought against the Crown for the return of public lands that were wrongfully taken from the Cowichan,” said Rosenburg.
B.C. Green MLA for Saanich North and the Islands, Rob Botterell, who has previously represented First Nations governments in private law, said all sides “should take a deep breath and stay calm.”
“I’m concerned about the political posturing that is occurring here, because it’s creating a sense of fear, when we should be dealing with a sense of respect,” said Botterell on Tuesday.
He noted the case pertains to a particular area of Richmond, and said the province should continue its work with First Nations across the province to resolve questions of Aboriginal rights and title.
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