Private property rights are foundational to a free and democratic society.
Moreover, uncontested ownership of private property is essential for a strong economy. Our common understanding of property rights and fee simple (freehold) title is what guarantees us stability in mortgage borrowing and confidence in investment.
But the centuries-old concept of fee simple land ownership in ÎÚÑ»´«Ã½ has been derailed following the recent Cowichan Tribes decision in the British Columbia Supreme Court.
After a multi-year trial extending over 500 days (the longest in Canadian history), the judgment declared that the Cowichan First Nation of Vancouver Island has Aboriginal title over a tract of seaside land in Richmond, which the Cowichan claimed was the site of their historical seasonal fishing village dating back to the late 18th century.
Notably, two other nations (the Musqueam and Tsawwassen) opposed the CowichanÎÚÑ»´«Ã½ claim to fishing rights on the Fraser River.
The land that the Cowichan now possesses in Richmond was mostly Crown land, but some of it was also municipally or privately held after being sold off by the Crown. The area currently houses port facilities, municipal infrastructure, a golf course, a blueberry farm, and private residences.
What British Columbians are worried about with regards to this ruling is the idea that past sales of Crown land to private owners can be made invalid after a court later decides that the title belonged to a First Nation all along.
The judge said in the Cowichan Tribes ruling that the province has a duty to negotiate with the nation regarding the private land that now falls under Cowichan ownership.
Myself and my Conservative Party of BC colleagues immediately understood the broader implications of this decision -- how will homeowners and future homebuyers in ÎÚÑ»´«Ã½ have any confidence in our system if the courts are saying that past private land sales, that were done in good faith, can be made invalid?
This is an all-too-common theme with the BC NDP government: they create conditions of uncertainty and instability, and then chide you when you want to ask questions.
Conservative Party of BC leader John Rustad, and our Official Opposition Critic for Indigenous Relations and Reconciliation Scott McInnis, called for Premier David EbyÎÚÑ»´«Ã½ BC NDP government to appeal the court decision. Fortunately, BC Attorney General Niki Sharma heeded the call.
It wasn’t a given that the BC NDP government would appeal this decision: they’ve been setting the groundwork for a while now, particularly with their 2024 Rising Tides Agreement. Rising Tides, which was implemented via negotiation, formally granted the Haida Nation Aboriginal title to all of Haida Gwaii. While healthcare, education, transportation, and other infrastructure will still be provided by the province, the Haida now have the choice to overtake fee simple lands on Haida Gwaii.
The housing market in British Columbia is already expensive, competitive, and strained, and now under the BC NDP government, current and future homeowners have to be worried that their fee simple title could be turned into a 99-year lease, where they would be subject to a co-ownership agreement. This is particularly concerning because 99-year leases don’t offer the protections that a condo owner has under a strata plan, or that a tenant has under a rental agreement.
For now, we await the result of the appeal. It will likely take a really, really long time. If the decision is upheld, there are a few ways forward: one being a co-ownership scenario like I described above. Perhaps there will be buyouts. Perhaps there will be no formal action, with just an ongoing and looming sense of uncertainty for homeowners living on Aboriginal lands.
But one thingÎÚÑ»´«Ã½ for sure: there will be more lawsuits, and we’ll be the ones paying for them.
Amelia Boultbee is the MLA for Penticton-Summerland.