The Cowichan Tribes v. Canada decision has sent shockwaves through the legal and political landscape. The landmark ruling found that the Quw’utsun (Cowichan) Nation has Aboriginal Title to Tl’uqtinus, their village site on Lulu Island located at the mouth of the Fraser River — 780 acres of privately owned land in what is now part of Richmond, B.C.
After the decision was released in August, B.C. Attorney General Niki Sharma,wrote, “This ruling could have significant unintended consequences for fee simple private property rights in B.C. that must be reconsidered by a higher court.” She added, “Our government is committed to protecting and upholding private property rights, while advancing the critical work of reconciliation.” John Rustad, leader of the BC Conservative Party, ratcheted up the hysteria, texting supporters, “A shocking B.C. court ruling puts YOUR property rights at risk.”
The political tremors stemming from the Cowichan decision are not surprising given the profound value we place on private property rights. But nor should we be surprised by the declaration of Quw’utsun’s title to their territory. The nation has tirelessly exercised its Indigenous Title, as grounded in its own laws, both prior to and after colonial settlement. At the same time, the nation has continuously fought for the recognition of Aboriginal Title, a more truncated understanding of Indigenous “property” legible within the Canadian legal system and protected by the Canadian Constitution.
Instead of viewing the Cowichan decision as a grave threat to private property, it’s worth assessing how we have arrived at a point when First Nations must go to the courts to establish their interest in land they never ceded. We need to consider how the endless denials of Indigenous Title, rather than a meaningful and lasting engagement, have produced this contentious moment in B.C.’s land politics.
The long, failed history of denying Indigenous Title in B.C.
The historical record is filled with acknowledgements of Indigenous Title and numerous failed attempts to deny it. In 1861, James Douglas, then governor of the colony of Vancouver Island, wrote to E.B. Lytton, secretary of state for the colonies in London, explaining, “As the native Indian population of Vancouver Island have distinct ideas of property in land, and mutually recognized their several exclusive and possessory rights in certain districts, they would not fail to regard the occupation of such portions of the colony by the white settlers, unless with the full consent of the proprietary tribes, as national wrongs.” Reflective of his broader land policies, Douglas acknowledged that Indigenous nations had a proprietary interest in land, which in other correspondence he described as “Indian title.” For much of his tenure, he was consistent in arguing such title must be extinguished through treaties prior to the active colonization of Indigenous territory.
B.C. Conservative Party leader John Rustad has fanned the flames of hysteria following the Cowichan decision, declaring that it puts property rights across the province at risk. Photo: Chad Hipolito / The Canadian Press
After Douglas retired, Joseph Trutch took the helm of land and Indigenous policy and quickly worked to bury the previous governor’s acknowledgement of Indigenous Title. In 1870, the Aborigines Protection Society — an international human rights organization founded to advocate for the rights of Indigenous people under colonization — wrote to the B.C. governor, Anthony Musgrave, to critique the colony’s handling of Indigenous issues. Trutch was charged with writing the official governmental response. As part of the public record, he wrote, “But the title of the Indians in the fee of the public lands, or of any portion thereof, has never been acknowledged by government, but, on the contrary, is distinctly denied.” Trutch’s words ring hollow when set beside Douglas’s prior remarks, but he was successful in placing a cone of silence over the title question.
Despite Trutch’s fervent denials, First Nations in B.C. never doubted they held unextinguished title to their territories. Emerging from an Indigenous delegation that traveled to England in 1906 to present their grievances to the Crown, and gatherings centred on the land question throughout the province, Cowichan Tribes drafted the Cowichan Petition in 1909, a remarkable document that built a legal and political argument for the recognition of their title and associated land rights. From its outset, the petition stresses “from time immemorial the Cowichan Tribe of Indians have been the possessors and occupants of the territory including [the] Cowichan Valley containing a large area situated within the territorial limits of the said province of British Columbia.” The petition continued: “The lands belonging to and claimed by the said Cowichan Tribe as aforesaid were never ceded to or purchased by the Crown nor was the Indian title otherwise extinguished.” Upon being delivered to the Crown, the Cowichan Petition spurred other Indigenous nations that had long been advocating for their rights to draft their own petitions, including the Nisg̱a’a in 1913 — momentum that persists to this day.
The petition, penned 116 years before the recent Cowichan decision, underscores just how long the Quw’utsun Nation has been organizing in support of its title.
Two years after the Cowichan Petition was drafted, Indigenous leadership from the B.C. coast converged in Victoria to make their title case directly to Premier Richard McBride, a long-time vocal critic of any policy that might acknowledge Indigenous interests in land. The goal of the delegation was to push for a legal test case on their title to go to the courts.
Channelling Trutch 40 years earlier, and anticipating Rustad more than a century later, McBride responded to the Indigenous delegation, stating, “the Indians had no title to the unsurrendered lands, and, as a consequence the government would not take the question to the courts, feeling that there was no proper question for submission.” Yet, much like conservative leaders that came before and after him, he was unsuccessful in burying the matter of Indigenous Title.
The momentum behind the drive to recognize Indigenous Title was significantly stalled in 1927 when the federal government introduced Section 141 into the Indian Act. The legislation banned lawyers from offering legal representation to Indigenous people without permission from the Department of Indian Affairs, who were clearly not forthcoming with approvals. But even this draconian act of limiting the right of legal representation afforded to all others within Canada was not enough to end Indigenous Title claims.
When the legal blackout was lifted in 1951, the movement for Indigenous Title recognition gathered steam again. In 1973, the Calder case, brought by Frank Calder of the Nisg̱a’a Nation, represented the first recognition of Aboriginal Title by the Supreme Court of Canada. As John Borrows, a leading scholar of Indigenous law at the University of Toronto, explains, “While the court declined to grant a declaration of title due to a technicality, six members of the court concluded that Aboriginal Title was a ‘historic’ right protected by their ‘original’ occupation of land prior to European arrival.” Three judges argued that the Nisg̱a’a Title was extinguished through B.C. joining Confederation and in light of colonial settlement, and three argued that it had never been extinguished, opening the legal door for the broader acknowledgement we are now navigating. But the political reaction in B.C. was to deny, deny, deny, even in the face of subsequent losses in the courts and the ongoing activism of Indigenous nations. In 1989, Jack Weisgerber, then B.C. Minister of Native Affairs, claimed, “Aboriginal Title was extinguished — if it ever existed — by actions of the colonial government and by the Government of Canada.”
Kʼalii Xkʼalaan (Portland Inlet) in Nisg̱a’a territory, where the First Nation first drafted a petition in 1913 to advocate for its title. In 1973, Nisg̱a’a politician Frank Calder won the first recognition of Aboriginal Title in the Supreme Court of Canada. Photo: Marty Clemens / The Narwhal
The intransigence of the B.C. government only provoked more Indigenous activism, with blockades, often on logging roads, growing across the province in the late 1980s and 1990s. As Dene scholar Glen Coulthard writes, “If history has shown us anything, it is this: if you want those in power to respond swiftly to Indigenous Peoples’ political struggles, start by placing Indigenous bodies (with a few logs and tires thrown in for good measure) between settlers and their money.” The blockades certainly caught the government’s attention. To facilitate access to land and resources, the B.C. government grudgingly began to acknowledge the presence of Aboriginal Title and agreed to launch the B.C. treaty process in 1993.
Government laid groundwork for Cowichan decision through inaction, denials
The fight over title continued in the courts, at treaty tables and on the land, but in the early 2000s, the matter of private land became a flashpoint. In 2002, the B.C. government launched a referendum on the treaty and land claim process. The first question put to the public asked whether they thought private property should be expropriated for treaty settlements.
Nearly 85 per cent of respondents voted no to what was widely criticized as a leading and inflammatory question. However, a much more complicated political and legal process was already underway on Vancouver Island. In 1887, the Esquimalt & Nanaimo Railway Company was granted more than 800,000 hectares of private land located along the southeastern seaboard of the island as payment for the 117-kilometre railway between the company’s two namesake cities.
When Quw’utsun Nation leaders penned their petition in 1909, they were likely unaware that most of their land was already enclosed in the land grant to the E&N Railway Co. But in the late 1990s, under the B.C. Treaty Process, the Hul’qumi’num Treaty Group, which represented the Quw’utsun Nation in the treaty negotiations, learned that most of their territory was off the table for negotiation, as it was so-called private forest land.
In 2003, TimberWest, one of the principal owners of these private forest lands, sought to overturn limits placed on pesticide use on private land. Cowichan Tribes First Nation, one of the communities comprising the broader Quw’utsun Nation, exercised its rights and title in limiting the use of pesticides in its territory, noting the disruptive impacts on land-based spiritual and cultural practices. TimberWest, arguing against the presence the First Nation’s rights and title, highlighted that the lands at issue “form part of the E&N Railway lands, which unlike most fee simple lands in British Columbia were created by a grant from the federal Crown in 1884.” Not only did they have the date of the land grant wrong, but they also lost their extinguishment argument: the Environmental Appeal Board sided with Cowichan Tribes, arguing that “limiting Aboriginal people to challenging only the original grant of fee simple, rather than any subsequent Crown‐authorized use of the private land, would be contrary to the purpose of section 35 of the Constitution Act, 1982, which is to effect a reconciliation of pre‐existing aboriginal interests with those of broader Canadian society.”
In other words, Cowichan Tribes’ rights and title to private land were viewed as unextinguished by the E&N land grants, and moreover, those rights had enough force, even in the context of private property rights, to allow the First Nation to limit industrial use of pesticides within parts of their territory. This case, and arguments supporting the presence of Aboriginal Title in the context of private land, were an outgrowth of the 1909 Cowichan Petition and anticipated, albeit in a different context, the recent Cowichan decision.
In Cowichan Bay on Vancouver Island, home to the Hul’qumi’num-speaking First Nations, the surrounding forests are privately owned as a result of the E&N land grant — the largest concentration of private forests in B.C. Photo: Mike Glendale / The Narwhal
Ironically, the Canadian government itself may have set the Cowichan decision in motion. The Quw’utsun Nation is represented by the Hul’qumi’num Treaty Group, which brings together five (formerly six) First Nations together in the pursuit of a modern treaty, three of which were involved in the Tl’uqtinus case. All five nations are impacted by the E&N land grants; over 85 per cent of their territories are enclosed as private property by the E&N land grant. Frustrated by Canada’s refusal to engage with the issue of private land at the treaty table, the group submitted an appeal in 2007 to the Inter-American Commission on Human Rights seeking redress; the commission has yet to rule on the case. In response, the Canadian government argued the international commission did not need to hear the case, as a domestic remedy was available to the Hul’qumi’num Treaty Group: the nations could seek a declaration of Aboriginal Title through the Canadian legal system.
Quw’utsun did just that, although not on lands enclosed by the E&N land grants: they pursued their case on Lulu Island at the mouth of Fraser River. The provincial government might want to pause and recognize that the federal government essentially laid out a legal pathway for the First Nation, which it pursued and then won.
The Cowichan decision is the result of more than a century of Quw’utsun’s articulations of their title to land that was never ceded or surrendered, as eloquently articulated in their 1909 petition. While public outrage at the recent declaration of Aboriginal Title to private land on Lulu Island is being directed at Quw’utsun, the blame should be placed at the feet of the various colonial, provincial and federal governments that have sought to bury the issue of Indigenous Title over and over again.
Rustad, in particular, seems intent on keeping this tradition going, arguing, “It’s not that we don’t need to address title … but Indigenous Rights and private property rights cannot co-exist. … Do we protect those private property rights under the foundation of society?”
But repeating tired mantras about the extinguishment of Indigenous Rights and Title doesn’t make the words true. It didn’t work a century ago, and it doesn’t work now; these arguments have lost time and again in the courts, even as they fan the flames of outrage.
If Canadians are alarmed and angry by the recent court decision, they should look to those Canadian leaders who still deny the presence of Indigenous Title, despite knowing they are on shaky ground. Even in 1872, Trutch privately wrote to Prime Minister John A. Macdonald, warning him against settling the title question: “If you now commence to buy out Indian title to the lands of B.C. you would go back of all that has been done here for 30 years past and would be equitably bound to compensate the tribes who inhabited the districts now settled and farmed by white people equally with those in the more remote and uncultivated portions,” he wrote. One hundred and fifty-three years later, Canada is finally starting to reckon with its debts.
John Borrows writes, “Aboriginal Title in British Columbia is a prior and senior right to lands. … Indigenous law created Aboriginal Title as an independent legal interest prior to Canada and the province coming into existence.” Recognizing this flips current narratives and should invite a much more honest nation-to-nation dialogue. As legal scholars Sarah Morales, of the Quw’utsun nation, and Estair Van Wagner have argued: “The court’s decision is a chance for a new beginning grounded in an honest reckoning about how property rights were created, and how they can be reshaped to justly and honestly improve how we live together on these lands.”
This is a moment in which creativity is required. Despite private property being treated as sacrosanct it’s worth remembering that such property has always been encumbered by laws and regulations, yet our political imagination closes when we consider the presence of Indigenous Title. We could follow the Trutches of the world and wish away the thorny title question and compound the problem. Or, we can open our imagination and consider how to breathe life and jurisdiction into Cowichan’s title even if it coexists with an Amazon distribution facility on Lulu Island.
