Does the Cowichan case indicate that private property is on the table for reconciliation?
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By Nina Green
Does the Cowichan case indicate that private property is on the table for reconciliation?
That question was raised in a 3 November 2025 CKNW interview by lawyer and former Chief Treaty Negotiator for British Columbia, Robin Junger. See attached transcript.
Madam Justice Young’s 7 August 2025 decision in the Cowichan case (copy attached) caught Canadians completely by surprise. The general public was unaware of the case, despite its serious implications for all Canadians, and despite the fact that it was the longest trial in Canadian history (the Cowichan plaintiffs’ statement of claim was filed on 14 March 2014, and the trial took place from September 2019 to November 2023).
One reason the case did not attract public attention is that the BC and federal governments, handcuffed by their own practice directives (see attachments), did not defend against the Cowichan claims by arguing that Aboriginal title had been extinguished. Madam Justice Young noted their failure to do so in Paragraph 2096 of her decision:
Canada initially pled extinguishment but abandoned its reliance on this defence in its amended response to civil claim filed November 22, 2018. BC never pled extinguishment.
Extinguishment of Aboriginal title is a flashpoint issue, and had the BC and federal governments argued extinguishment as a defence, the case would have attracted widespread media attention.
A second reason the case did not attract public attention is that when requested to formally notify the private property owners in the area in Richmond, BC, claimed by the Cowichan plaintiffs, the court declined to do so. Had the private property owners in Richmond been notified, the case would have attracted immediate and extensive media coverage since Aboriginal title claims against private property are also a flashpoint issue, as news coverage in recent weeks has proved.
Why did the court refuse to notify the private property owners?
Because the court refused to formally notify them, the private property owners were unaware that their fee simple titles would be seriously impaired by the declarations sought by the Cowichan plaintiffs until Madam Justice Young’s reasons for judgment were released on 7 August 2025.
The court’s reason for refusing to formally notify the private property owners of the Cowichan lawsuit were that (1) the Cowichan plaintiffs vigorously opposed notification, arguing that the courts had always declined to notify private property owners in Aboriginal title cases, (2) that in any event they, the Cowichan plaintiffs, were not seeking a declaration that would affect the fee simple interests of the private property owners, and that (3) not notifying the private property owners would foster reconciliation. Madam Justice J.A. Power, the case management judge at the time, wrote:
[6] Between December 2014 and April 2017, Canada and British Columbia sought and received particulars with respect to whether the Claim Area includes land held by private landowners. During that time, it was also proposed that the plaintiffs either amend their pleadings to excise any claim to lands held by private landowners or, alternatively, that the plaintiffs serve private landowners with formal notice of the action. The plaintiffs [Cowichan Tribes] persisted in their contention that, while nothing precluded Canada or British Columbia from providing notice to private landowners, neither plaintiff nor court-ordered notice was warranted. . . .
[13] The plaintiffs [Cowichan Tribes] vigorously oppose the application, arguing that Canada’s application is misconceived. They argue that no court has ever ordered notice of aboriginal title litigation be given to private landowners holding a fee simple interest. They say that the only instances of court-ordered notice in aboriginal title litigation related to other First Nation groups — every court asked to order formal notice to tenure holders has so far declined to do so.
[14] Further, the plaintiffs submit that they are not seeking a declaration of invalidity or defectiveness with respect to the fee simple interests in the private Tl’uqtinus Lands, nor do they claim they are entitled to possession of such land as against any private landowner.
[15] The plaintiffs also argue that while Canada’s application appears on its face to be procedural, and is not a joinder application, the requested order, if granted, could have far reaching and significant consequences. The plaintiffs argue that they have taken an approach in this litigation that fosters reconciliation by involving only the proper parties. They argue that this approach leaves for another day, and only if necessary, the consequences of a declaration of aboriginal title on private landowners. [bolding added]
The private property owners were thus deliberately kept in the dark for over 8 years about the fact that their fee simple titles would be affected until they woke up on 7 August 2025 to learn that their fee simple titles had been affected in the most serious way possible by a declaration by the court of Aboriginal title over their properties.
What does a declaration of Aboriginal title mean to private property owners?
As Robin Junger pointed out in the CKNW interview (see attachment above), the BC government has downplayed the effect of the court’s declaration of Aboriginal title by emphasizing that the rules for filing in the BC Land Title Office have not changed.
However, as Junger points out, that is not at all the issue. As Junger identifies it, the issue is (1) that the court found that Aboriginal title exists over the lands of private property owners; (2) that the private property owners’ fee simple titles are not a justifiable infringement on the Cowichan Aboriginal title which the court has now declared exists over those properties; and (3) that, although the court declared that Aboriginal title and fee simple title coexist over those private properties, that is unworkable since both Aboriginal title and fee simple title give exclusive ownership of, and the right to the use of, and benefit from, the private properties, and exclusive ownership by two different entities cannot in practical terms exist over the same land at the same time.
The court’s solution to the dilemma
Can the private fee simple title holders sell their properties under these circumstances? Will banks renew their mortgages? Will they have to move? These questions, and many more, are now completely up in the air.
The court’s solution to this dilemma was to issue a declaration, as explained by the Cowichan plaintiffs’ counsel, David Robbins, ‘that British Columbia has a duty to reconcile that fee simple with the Cowichan Nation Aboriginal title through negotiation’.
In plain language, the word ‘negotiation’ in this context means that BC taxpayers must compensate either the Cowichan plaintiffs or the private property owners for the value of the private property owners’ lands in the area over which the court has declared Aboriginal title.
In one scenario, through ‘negotiation’ between the BC government and the Cowichan, the private property owners will be allowed to keep their properties — albeit still burdened by a declaration of Aboriginal title and by a declaration that their fee simple titles are an unjust infringement of that Aboriginal title — and the Cowichan plaintiffs will be paid the value of those private properties by the BC government.
In the alternate scenario, through ‘negotiation’ between the BC government and the Cowichan, the private property owners will either be compelled to agree on a price to be paid by the BC government as compensation for their lands, or will be compelled to accept whatever price the BC government gives them on expropriation of their lands. The private landowners will then move, and the BC government will turn the lands over to the Cowichan plaintiffs.
In both scenarios, BC taxpayers will be on the hook for whatever price the BC government pays for the lands.
And in both scenarios, the private property owners will experience hardship. They will either be forced to give up their lands and move for monetary compensation, or they will be allowed to remain on their lands with doubtful fee simple titles and under the jurisdiction of the Aboriginal title holders, the Cowichan plaintiffs.
And it is to be noted that this hardship will take place after the court declined to notify them that their lands would be affected by the Cowichan lawsuit because of the Cowichan plaintiffs’ assurances that their approach fostered reconciliation, and that ‘the consequences of a declaration of Aboriginal title on private landowners’ could be left for another day:
The plaintiffs argue that they have taken an approach in this litigation that fosters reconciliation by involving only the proper parties. They argue that this approach leaves for another day, and only if necessary, the consequences of a declaration of aboriginal title on private landowners.
Does the Cowichan decision affect private property owners elsewhere in BC, and elsewhere in Canada?
In the CKNW interview, Robin Junger stated that this is ‘a huge change’, and pointed out that ‘Aboriginal title is claimed all over BC, not just Richmond’. Junger referenced the Haida Agreement, under which Aboriginal title was recently declared over all the former Queen Charlotte Islands (now Haida Gwaii).
Junger also referred to ongoing Aboriginal title negotiations with the Sechelt Band on the Sunshine Coast, and to a ‘lawsuit going on in Kamloops right now where the Secwepemc Nation is claiming Aboriginal title over all the private lands’.
As Junger commented, ‘This is happening all over the place. This is not just a Richmond issue.’
It’s also not just a BC issue. Aboriginal title is being claimed over private property in other parts of Canada, including New Brunswick, where Aboriginal title is now asserted over more than half the province, and where, again, the court has declined to notify the private property owners.
Is there a solution?
The only just solution, in view of the fact that the court refused to notify the private property owners in Richmond that their fee simple titles would be affected, is for the BC Court of Appeal to order a new trial at which the private property owners are joined as parties and can defend their interests.
Another reason pointing to a new trial as the only just solution is the fact that the court relied on the evidence of Dr Kenneth Brealey, finding that his opinion was ‘highly reliable’, despite the fact that he could not testify or be cross-examined at trial. In Paragraph 277 of her decision, Madam Justice Young wrote:
Despite being diagnosed with a terminal illness, Dr. Brealey underwent about 13 days of pre-trial deposition between April and June 2019. Unfortunately Dr Brealey passed away in August 2019 before the trial commenced.
A new trial would allow whatever expert witnesses the Cowichan plaintiffs put forward to be properly cross-examined during the trial proceedings before the court relied on their evidence to issue declarations which seriously affect the interests of the Crown, the City of Richmond, other Indian Bands (the Musqueam and Tsawwassen), and Richmond private property owners.
A new trial would also settle the question raised by Robin Junger in the CKNW interview and highlighted at the beginning of this email: Is private property on the table for reconciliation? As Junger states, until now, private property was never on the table for reconciliation. However in the same CKNW interview, a clip was played (transcript attached above) of Grand Chief Stewart Phillip of the Union of BC Indian Chiefs stating unequivocally that:
We need to commit to serious negotiations that does, in fact, recognize the reality, the legal reality, the constitutional reality of Aboriginal title in British Columbia. The Richmond residents have been living on Aboriginal lands ever since they first purchased those properties, as did the previous owners. That’s the reality that British Columbians refuse to accept.
Clearly, for Grand Chief Stewart Phillip, private property is on the table for reconciliation.
Assembly of First Nations Grand Chief Cindy Woodhouse Nepinak made a similar comment when she was first elected, stating that:
every piece of square inch in this country and across Turtle Island is Indian land.
Clearly, for AFN Grand Chief Cindy Woodhouse Nepinak, private property is on the table for reconciliation.
If private property actually is now on the table for reconciliation, Canadian taxpayers need to have that clearly spelled out for them by federal and provincial governments, because it is Canadian taxpayers who will have to pay the billions that it will cost to compensate Indian Bands for their Aboriginal title claims over private property across the country, and it is Canadian private property owners who will suffer the - at this point incalculable - disruptions declarations of Aboriginal title over private property will cause.
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Nina Green is a commanding voice, and what I was most alarmed by is this: “The private property owners were thus deliberately kept in the dark for over 8 years.” Deliberately keeping all Canadians in the dark about the transfer of our country to one small and unproductive race is the strategy of almost institutions and certainly of corrupted politicians.
It's the WEF plan in action... Carney's plan for unlimited chain migration
Canada’s government has just made unlimited chain migration an official policy with the removal of long-standing checks and balances from Canadian citizenship with the introduction of Bill C-3.
Under these changes, anyone born outside of the country can now claim Canadian citizenship if their parents spent just over 1095 days in Canada. They’re calling this a “substantial connection to Canada.” This is not a substantial connection, this is less time than it takes to finish a Bachelors degree. With Bill C-3’s logic, anyone that comes to study in Canada for 4 years and then gets citizenship in the process, can just pass it down to their children, and then their children can pass it down again.
Even if their connection to Canada is minimal and temporary. Opening the door for endless intergenerational chain migration, with no clear way to track who will be eligible in the future or how many newcomers will be added to our already strained system.
This is dangerous.
The government has removed multiple sets of barriers. Now there is no English or French literacy requirement for new citizens, risking long-term integration for newcomers. No more mandatory security checks to ensure the safety of our country. No citizenship test required to ensure basic knowledge of our country. No meaningful requirement for residency, just three years at any time before a child’s birth abroad.
This is a phenomenon many have coined “Canadians of Convenience." We are de-valuing our citizenship to the point where anyone can just have it. The requirements to become a naturalized citizen are dangerously low. Someone can come to Canada, return to their home country, have children, and then all move back when it’s convenient to them.
That’s not citizenship. It’s a back-up plan.
Being a Canadian citizen and having access to the services afforded to citizens should mean active integration and participation in Canadian society. The removal of the first generation limitation is completely disrespectful to the thousands of immigration who worked hard for their citizenship. Now you can be born into it after your parents spend only three years here.
Many Canadians have spent their entire lives contributing to Canada, and three years is the threshold for citizenship benefits for the generations after you. It’s disrespectful.