Aboriginal title decision 'may compromise' ownership status of Richmond, B.C., properties, says mayor
The City of Richmond is warning residents their property ownership might be compromised by a recent B.C. Supreme Court ruling that granted the Cowichan Nation title over 7.5 square kilometres of land in the southeast section of the city.
Mayor Malcolm Brodie recently sent a letter to residents who could be affected, which includes a map showing properties inside the area covered by the decision.
“The court has declared aboriginal title to your property which may compromise the status and validity of your ownership — this was mandated without any prior notice to the landowners,” Brodie wrote.
In August, the court determined the Cowichan Tribes have title to the land, ruling that land titles granted by government were invalid and “unjustifiably infringed the Cowichan’s Aboriginal title.”
In her Aug. 7 ruling, B.C. Supreme Court Justice Barbara Young said, “these interests may be resolved through negotiation, challenged in subsequent litigation, purchased, or remain on the Cowichan Title Lands.”
Both the city and British Columbia are appealing the decision.
“Given the serious implications of this court decision and the pending appeal,” the mayor invited residents to attend an Oct. 28 meeting at Richmond City Hall to learn more about the matter.
In an interview Monday, Brodie said his letter went out to about 150 people who own land and rent property in the area.
“It’s not just residential; there are businesses there, too,” said the mayor.
He noted that “every party, including the Cowichan, have appealed. The claim of the Cowichan was reduced from about 1,800 acres down to 800 acres, and the Cowichan have appealed because they want to make the claim on the wider area.”
He’s unsure how aboriginal title and fee simple title, a term referring to ownership of full, permanent property rights, will stand side-by-side.
“The court has said that’s not inconsistent,” Brodie said.
“I believe it’s directly contrary and it’s hard for me to speculate where this could all end. But it’s certainly a very big development for anybody who lives in this specific area and finds that their title is affected by aboriginal title. Not only that, it’s not just the people in this area, it is the people throughout the province that could ultimately be affected by this sort of approach because now fee simple is not sacrosanct. Fee simple is on the table for aboriginal claims.”
The mayor said he “can’t imagine” that Young’s decision will survive on appeal.
“It just seems so basic that people invest in their homes and their businesses, and a result like this compromises your ownership of your home, and it affects your business in a very substantial way. How can anybody be expected to invest in businesses and property when there is this possibility looming directly ahead?”
He said the trial spanned more than 500 days “without anybody in this area knowing anything that was going on, and waking up to read media reports to find out that their homes and businesses are affected by the possibility of aboriginal title.”
There was a suggestion during the trial on at least two occasions that homeowners and businesses in the area should be advised of the situation, Brodie said.
But that didn’t happen, said the mayor.
“This is a multi-billion-dollar decision which could affect virtually all of the province and most of the country and I think that people need to know all about it,” Brodie said.
Richmond city councillor and former B.C. attorney general Kash Heed is confident Young’s decision will be overturned on appeal.
“I think it’s a very flawed decision and the judgement is counter-intuitive to what Canadians are actually looking for and how we want to deal with these constitutional issues,” Heed said Monday.
Kash called Young’s ruling “an unreasonable decision” by one judge. “The reasonableness of the court will be played out in the appeal and, eventually, the Supreme Court of Canada.”
Richard Laurendeau, who manages a real estate office in the city, described the Richmond real estate market as “fair,” noting sales were down 10 per cent from January until August when compared to last year.
“The market hasn’t stopped as a result” of the recent court decision, Laurendeau said. “Might it cause some people to visit the subject of what are the implications as a homeowner? For sure.”
But he trusts “that there will be other elements of the government that will challenge the ruling and that will bring clarity to the notion that the fee simple title system will not be challenged in the courts. That your home is your home is your home. It’s a basic principle of our title system.”
He’s hoping the decision will be overturned on appeal.
“It needs to be pushed up at every level,” Laurendeau said.
“If we don’t win this appeal, I think homeowners are going to want that they continue to appeal it at the highest level so we can defend that simple principle of your title is indefeasible.”
Lower Mainland realtor Keith Roy said Monday that he wouldn’t buy property right now in the area of Richmond affected by the recent court decision.
“I am afraid that buyers will become cautious in Richmond about buying properties in and around this particular claim,” Roy said.
The court decision about the Cowichan claim has created “immediate uncertainty” in the real estate market, he said.
“Everybody inside of this land claim has an illiquid asset while this plays itself out in court,” Roy said.
“This why we need to move expeditiously and very publicly on these things to give people the confidence to make decisions to move forward, because right now there are hundreds of people who have illiquid assets.”
He doubts anyone would buy assets now in the area designated by the courts.
“You’re just gambling on a court case that saves you,” Roy said.
The property in question is “effectively no longer freehold land,” he said.
“We’ve put Canadians in a position where they have to negotiate to buy back land that they already own,” Roy said.
“That’s scary.”
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