• Aboriginal Title Claims and Fee Simple Lands: Cowichan Tribes V. Canada (Attorney General), 2017 Bcsc 1575, Supreme Court of British Columbia (Power J.),
  • October 5, 2017 | Author: Scott Kerwin
  • Law Firm: Borden Ladner Gervais LLP - Vancouver Office
  • The Supreme Court of British Columbia dismissed an application brought by Canada for an order requiring the plaintiffs to give notice to all private registered owners of fee simple lands within the Aboriginal title claim.

    In the underlying action, the Cowichan Tribes seek a declaration of Aboriginal title to lands within the City of Richmond. The defendants in the action include Canada, British Columbia, the City of Richmond, the Tsawwassen First Nation and the Musqueam Indian Band. Canada applied for an order that the plaintiffs (or British Columbia) serve private landowners within the claim area with formal notice of action. It was estimated that there are over 200 privately held fee simple titles within the claim area.

    The plaintiffs opposed the motion on the basis that no court in Canada has made such an order in an Aboriginal title claim. They also submitted that they are not seeking a declaration that the fee simple interests are defective or invalid, nor do they claim to be entitled to possession of such lands.

    Madam Justice Power noted that such an order is discretionary in nature, and “must be made with due regard to the unique circumstances of each case, and should be of no consequence to upcoming decisions”. She referred in particular to the fact that a similar application was being made in the Aboriginal title action brought by the Haida Nation. (This application was heard by Madam Justice Fisher on 5-6 September 2017).

    The Court discussed previous decisions, including the interlocutory decision of Mr. Justice Vickers in the Tsilhqot'in case (2002 BCSC 1199) in which he dismissed an application that the plaintiffs be required to give notice to tenure holders in the claim area. Madam Justice Power placed some weight on the plaintiffs' submission that they were not seeking to invalidate or render defective the fee simple interests of private landowners. She held that the uncertainty in the caselaw “weighs against court ordered notice”. Private landowners will have an opportunity to make all arguments (including lack of notice) in any subsequent proceedings.

    Madam Justice Power concluded that in the “particular circumstances” of this case, she would not exercise her discretion to require the plaintiffs to serve formal notice on private landowners. Canada's application was therefore dismissed. The Court noted that nothing prevented the defendants from giving informal notice to private landowners.