By: Lucaiah Smith-Miodownik, News Writer

The Cowichan Tribes v. Canada trial spanned 513 days from 2019 to 2023, making it the longest trial in Canadian history. 

On August 7 of this year, BC Supreme Court judge Barbara Young ruled that the Quw’utsun (Cowichan Tribes) hold Aboriginal title to an area of land near the Fraser River on what is now known as Lulu Island in Richmond. Aboriginal title refers to the “unique collective right to the use of and jurisdiction over a group’s ancestral territories.” 

Initially, the Quw’utsun Nation sought title over their traditional Tl’uqtinus lands and some of the surrounding area, as well as the Aboriginal right to fish on the Fraser River’s south arm. They did not seek to reclaim any privately owned lands within this area through the court. For those lands, they sought “a negotiated reconciliation with government.”

The trial, however, resulted in a different outcome regarding private lands. 

While Young found that the Quw’utsun had title to a portion of the land they originally claimed, this included some fee simple, or privately owned property. Specifically, Country Meadows Golf Course, multi-million-dollar mansions, and warehouses currently exist on what is now Cowichan Title Lands.

Now, the City of Richmond, xʷməθkʷəy̓əm (Musqueam) Nation, and sc̓əwaθən məsteyəxʷ (Tsawwassen) Nation plan to appeal the latest decision. 

The Quw’utsun Nation is adamant that they do not seek to displace private homeowners.

“Framing this decision as a threat to private property stokes fear and unfairly scapegoats First Nations”

— Don Tom, vice-president, Union of BC Indian Chiefs  

The Quw’utsun Nation did not respond to a request for an interview by the publication deadline.

xʷməθkʷəy̓əm and sc̓əwaθən məsteyəxʷ Nations’ reaction

For the two Nations, issues with the ruling stem from disputes regarding whether or not Aboriginal title should belong solely to the Quw’utsun. 

While the sc̓əwaθən məsteyəxʷ Nation declined to comment on the ruling, they released a statement on their website asserting that the Cowichan Title Land is “within Tsawwassen’s traditional territory and directly impacts rights recognized in Tsawwassen First Nation’s 2009 Treaty, most importantly, the right to fish in the Lower Fraser. 

“This decision has already affected Tsawwassen First Nation. The very next day, the Canadian Department of Fisheries and Oceans allowed Cowichan Tribes to fish during the height of the sockeye run, with what seems to be very little forethought about best management of the salmon fishery,” the statement reads. “For Tsawwassen members, whose Treaty fishing rights are already less than fully realized, the consequences could be devastating.”

Additionally, yəχʷyaχʷələq (xʷməθkʷəy̓əm Chief Wayne Sparrow), “citing oral Musqueam history,” told CBC that “if you ask any First Nation in BC’s Lower Mainland, the Fraser River was not known as the Cowichan River prior to colonization.”

The xʷməθkʷəy̓əm Nation did not respond to an interview request before the publication’s deadline. In a press release of their own, yəχʷyaχʷələq explained that they are “extremely disappointed that Cowichan Tribes, Stz’uminus, Pune’luxutth (Penelakut), Halalt, and Leey’qsun (Lyackson) would go against our shared Coast Salish protocols and challenge our traditional resource-sharing practices.” 

yəχʷyaχʷələq added that “it is especially concerning that they resorted to the colonial legal system, which was not established to respect or reflect our traditional teachings.”

Both nations plan to move forward with appeals. In a CBC interview, Robert Morales, chief negotiator for the Hul’qumi’num Treaty Group and member of the Quw’utsun Nation, recognized that “there is disagreement” between the nations, but maintained that the area in question is traditional Quw’utsun Nation land. 

City of Richmond’s reaction

The Peak spoke with Richmond mayor Malcolm Brodie about Richmond’s plans to appeal the ruling.

Brodie explained that in past instances, Aboriginal title only affected Crown land, while fee simple property was spared. Crown land is “land, or land covered by water like rivers or lakes, that’s owned by the provincial government.” However, this case sets a new precedent as the court ruled that Aboriginal title “can’t be extinguished by having your title in the land title office,” he said. “You’ve got two different titles, both of which give the right of exclusive possession and occupation of that property,” he specified.

Brodie explained that “if the province comes along and takes some of your property because [ . . . ] they want part of that property for roads, they do what’s called expropriation on that property.” They claim “the portion they need, and you get fair market value” — “the price that an asset would sell for under current market conditions, assuming that both the buyer and the seller are seeking the best possible price.”

In the case of the ruling, Brodie believes the government should take the same expropriation approach by recognizing that “there is such a thing as Aboriginal title on that land, and it’s up to the province to provide payment to the First Nations for that title” without the potential loss of property for private owners.