On Aug. 7, a five-year-long legal battle between the Cowichan Tribes and the Attorney General, the City of Richmond, Vancouver Fraser Port Authority and other First Nations groups ended in a monumental decision handed down from the B.C. Supreme Court.
For the first time in Canadian history, a First Nations group was granted Aboriginal title over a section of land currently owned in fee simple by other entities.
Justice Barbara Young ruled that land title grants issued by the Canadian and B.C. governments to others on the land in question “are defective and invalid” since they “unjustifiably infringe the Cowichan Nation Aboriginal title to these lands.”
The 750-hectare parcel of land in question contains several company warehouses owned by private businesses and homes owned by individuals. However, the decision was clear that no titles held by private homeowners were invalidated, as no remedy was sought against them.
That said, the decision has far-reaching effects given the now-apparent vulnerability of fee-simple interests that conflict with Aboriginal-titled lands, which large amounts of private land in British Columbia are classified as.
Dwight Newman, law professor at the University of Saskatchewan and research associate with the University of British Columbia’s Centre for Constitutional Law and Legal Studies, said that what matters is not the party that holds the land (public vs. private ownership), but the common denominator of fee simple interest in conflict with Aboriginal title.
“Some of the land held by governments was in fee simple, which is the type of ownership that most private individuals have. And in the course of pronouncing that on the government fee simple land that is declared to be owned under Aboriginal title, the decision probably has implications for private individuals’ fee simple lands down the road—or it could if First Nations were to ever claim against it,” he told REM in an interview.
B.C. government responds
The B.C. government and other bodies responded swiftly to the decision.
“But let me be clear: Owning private property with clear title is key to borrowing for a mortgage, economic certainty, and the real estate market,” Premier David Eby said in a statement, adding, “We remain committed to protecting and upholding this foundation of business and personal predictability, and our provincial economy, for Indigenous and non-Indigenous people alike.”
In an email to REM, the Ministry of Attorney General indicated that the province “strongly disagrees with the decision,” and will be appealing it. It is seeking a stay to pause the implementation of the ruling before the appeal is finalized.
“Our government is committed to protecting and upholding those rights while continuing the important work of reconciliation. That will always remain our approach,” the statement reads, adding that, “For Realtors and property owners, it is important to know that people must be able to continue buying and selling property freely and accessing mortgages. The province made this clear to the Court and remains committed to protecting fee simple private property.”
The British Columbia Real Estate Association (BCREA) also released a statement on Aug. 21, citing its support for the government’s planned action.
“We are encouraged by the province’s stated commitment to protecting and upholding private property rights in the face of this decision and are working together with other concerned real estate and business organizations to respond and engage when warranted.”
How can Realtors reassure their clients?
While public officials have consistently talked about the importance of protecting fee simple property, Realtors and their clients still face uncertainty as the matter will continue to unfold via appeal.
Newman’s assessment is that the “courts don’t rush to disrupt people living in their homes,” but he also does not mince words, saying there is “lots of uncertainty” in the present circumstances.
Newman suggests that Realtors who are concerned about their client’s title to land could research if there is a claim to Aboriginal title in the area.
“If there have been filings in a court, it’s in principle public information, but how accessible that’s been made will differ,” he said.
If court records don’t show any issues, Newman suggests doing general research to find Aboriginal title claims in an area that have not been resolved. He notes that much of the private land in B.C. may be subject to Aboriginal title claims, though there are exceptions.
Newman also mentions that private property owners may have legal defenses in the case of an Aboriginal title claim materializing against them.
The judgment passed down from Justice Young does deliberate on the idea of a private landowner using a bona fide purchaser for value (an innocent purchaser for value) defense, though Newman is clear that the use of this defense for private individuals is speculative.
“So private individuals might have that defense down the road, but basically, there’s some uncertainty on what the decision would imply if it were applied to the circumstances of a private individual. And the decision is being appealed in any event,” Newman cautions.
What’s the likelihood of a claim against private landowners?
Realtors wrestling with the potential of an Aboriginal title claim on a client’s property may be tempted to gauge the likelihood of a First Nations group seeking to invalidate their client’s fee simple title, as in the Cowichan decision.
Newman suggests that a number of factors could be considered, such as the chances that the negotiation of the Aboriginal title ends up in court, prospects for the Aboriginal group that could make the claim, and whether other land in the area is claimed as well.
However, he cautions that at the end of the day, uncertainty will remain.
“To come up with a likelihood [of a claim] on a particular property—that’s a challenging task. It’s mostly not going to be really high,” he says, but adds, “but it’s not zero. People need to live with some kind of risk on [the land], but they shouldn’t exaggerate that risk in essence.”
Aboriginal claims aren’t the only risk
Newman is clear that offering any sort of clear-cut, reassuring advice isn’t practical right now. But, he draws a helpful analogy many B.C. Realtors and property owners can relate to.
“People buy land that’s subject to risks. Most of the people in British Columbia have bought land that is subject to significant earthquake risk, and they deal with that,” he tells REM.
Just as environmental factors are one of many considerations that make up a Realtor’s analysis of a property, Newman contends that the possibility of an Aboriginal claim is simply another factor that needs to be contemplated.
“Various things could happen when people buy property, and real estate agents need to talk to people about the risks and sort of keeping them in proportion—-not ignoring them, but not exaggerating them either.”
Brett Surbey is a corporate paralegal and freelance writer who has written for Yahoo Finance Canada, Success Magazine, Publishers Weekly, U.S. News & World Report, Forbes Advisor and multiple academic journals. He and his family live in northern Alberta, Canada.