Tom Fletcher grew up in the Peace River region and has covered BC politics and business as a journalist since 1984.Canada’s decision to negotiate rather than litigate indigenous rights claims is about to undergo its biggest test, in the wake of a landmark BC Supreme Court judgment declaring a large swath of Richmond and the federal port to be aboriginal title land.Perhaps the most shocking aspect of the unprecedented ruling is its attempt to downgrade private property rights at the urban industrial site near Vancouver International Airport, declaring fee-simple land to be subject to aboriginal title in any claim that may happen in the future.Justice Barbara Young summed it up in a decision running to more than 800 pages.“In my view, aboriginal title currently lies beyond the land title system in British Columbia and the Land Titles Act does not apply to it. It therefore cannot be said that a registered owner’s title under the LTA is conclusive evidence that the registered owner is indefeasibly entitled to that land as against aboriginal title holders and claimants,” wrote Young.A lawyer not involved in the case described that part of the judgment this way.“Thus, if you buy land in BC, you may not own it in the traditional sense,“ they said. “Rather, you may have aboriginal title attached to it. This could mean you don’t own it. What’s more, you have no way of knowing when you buy the land.”.In his initial response, BC Premier David Eby stopped short of ordering an appeal, but spoke about private property being the basis of the economy and real estate market, which is thrown into doubt with this still-vague assertion of aboriginal title. This from the premier who has embarked on a sweeping program to surrender Crown land across the province under the guise of “land use planning,” and whose decision to surrender title to the Haida Nation includes all private property across the island group.The sheer size of this court action carries another chilling message for taxpayers. At more than 500 trial days, it surpasses the Tsilhqot’in case establishing its aboriginal title in the BC Interior, to become the longest trial in Canadian history. The plaintiff Cowichan Nation, including four successor bands and four individual descendants, was represented by 25 lawyers (including former judge, youth commissioner, professor, and asserted indigenous person Mary Ellen Turpel-Lafond).There were 17 lawyers for the federal government, 11 for the province, seven for the City of Richmond, eight for the Vancouver Fraser Port Authority, four for the Tsawwassen First Nation, and 14 for the Musqueam Indian Band, which has already pledged to appeal the ruling, mainly over the award of fishing rights to the Cowichan. With costs awarded to the plaintiffs, you can guess who pays for it all.Depending significantly on oral histories, Justice Young described a seasonal village on the South Arm of the Fraser River with about 1,000 “warriors” and a further community of supporters to “exploit resources.” Other documented histories describe the annual Cowichan migrations in less diplomatic terms.A Sto:lo-Coast Salish Historical Atlas, the most thorough record of the pre-contact period in the region, maps out raids by Cowichan extending to Katzie, Kwantlen, Chilliwack, and up the Fraser Canyon, as well as Clallam in Washington..“Viewed from the perspective of the aggressor, raids and attacks appear to have been motivated primarily by a desire to obtain quick wealth (in the form of slaves and property such as dried and smoked salmon) or to exact revenge for earlier perceived insults,” the atlas states.The Squamish and Musqueam conducted their own raids, as documented by a journal kept by a fur trader at Fort Langley from 1827 to 1830. This brief snapshot is a rare written account of life on the West Coast before BC and Canada were formed.The ruling finds that British Columbia Governor James Douglas set aside the Richmond claim area by 1860 as part of indigenous settlements established as eventual reserves. But the Cowichan’s seasonal settlement of Tl’uqtinus was not made a reserve for them, and the judge found that the land was later “sold to settlers without the Cowichan’s knowledge.”Justice Young suspended the decision for 18 months to “allow for an orderly transition of the lands” and negotiations to settle the outstanding issues. Tom Fletcher grew up in the Peace River region and has covered BC politics and business as a journalist since 1984. He lives in Victoria.tomfletcherbc@gmail.comX: @tomfletcherbc
