The shocking decision from the B.C. Supreme Court last year is in the midst of an Appeal. However, it seems that the public is not fully aware of the efforts to keep it hidden over the last decade.
Instead of a high level of incompetence, it appears the Municipal, Provincial and Federal officials did what they could to keep it hidden. While sounding the alarm now, they had over a decade to do so, but decided to conceal the risks from residents.
Madam Justice J. A. Power: “….my decision does not prevent any of the defendants from providing informal notice to private landowners if they wish to do so.” Cowichan Tribes v Canada (Attorney General), 2017 BCSC 1575 at paragraph 27.
Most people heard about this ruling last August. It’s where a B.C. Judge essentially declared a portion of Richmond to belong to Cowichan Tribes, a group in the area.
***Note: pardon the late follow-up. The story fell through the cracks, but is definitely worth reporting. This is especially true in light of “negotiations” that have recently started.
The case has been appealed, and a number of Cross-Appeals have been filed as well. There’s a lot more to cover. But an important point needs to be addressed: the parties went out of their way to conceal this case from the public at large. The Federal Government, B.C. Government and City of Richmond could have let people know years ago, but chose not to.
This is not to say that they couldn’t have notified Richmond residents. There was no prohibition stopping them. They simply decided not to.
Is this an outrageous claim? Perhaps, but in light of what has happened, it’s about the only logical conclusion one can draw from this.
Specifically, 5 points will be raised in support of this position.
- Cowichan filed the challenge in Victoria to reduce unwanted attention
- Cowichan had parts of their evidence declared private
- The entire case was removed from B.C. Court Services Online
- Governments did not alert property owners about case in 2016
- Governments did not alert property owners about case in 2017
Why wouldn’t Cowichan Tribes want heavy scrutiny about this case? Consider what they were asking for, and what the decision awarded them.
Declarations Made By B.C. Supreme Court
- The Cowichan have Aboriginal title to the Cowichan Title Lands within the meaning of s. 35(1) of the Constitution Act, 1982;
- The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in certain highway lands in the Cowichan Title Lands, unjustifiably infringe the Cowichan’s Aboriginal title;
- Except for Canada’s fee simple titles and interests in certain lands (the “Vancouver Airport Fuel Delivery Project Lands”), Canada and Richmond’s fee simple titles and interests in the Cowichan Title Lands are defective and invalid;
- With respect to the Cowichan Title Lands, Canada owes a duty to the Cowichan to negotiate in good faith reconciliation of Canada’s fee simple interests in the Vancouver Airport Fuel Delivery Project Lands with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown;
- With respect to the Cowichan Title Lands, BC owes a duty to the Cowichan to negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown; and
- The Cowichan have an Aboriginal right to fish the south arm of the Fraser River for food within the meaning of s. 35(1) of the Constitution Act, 1982.
Cowichan Tribes has filed their own Appeal, arguing that the Judge should have given them everything, not just portions of the area.
1. Cowichan Filed In Victoria To Reduce Unwanted Attention
The case concerns land in Richmond, but was filed in Victoria. Vancouver was a far closer choice. New Westminister or Abbotsford would also require less commuting time. The obvious question: why go to a further Court?
This is going to sound incredibly cynical, but the likely reason for filing in Victoria was to reduce the chances that it would be leaked, prior to a ruling.
2. Cowichan Had Parts Of Their Evidence Declared Private
What makes thing more suspicious is that a number of sealing orders were made between 2021 and 2023. Even if one went to the Court in Victoria, these exhibits would still be restricted.
1. 6 July 2021: Sealing Order and Publication Ban made 22 & 26 January 2021 regarding Vancouver Fraser Port Authority documents;
2. 2 November 2021: Sealing Order made 26 July 2021, regarding Musqueam fisheries mandate information;
3. 24 June 2022: Sealing Order and Publication Ban made 25 October 2021, regarding information contained in DARS recording, Clerk’s Notes, and trial transcript for 25 October 2021;
4. 24 June 2022: Sealing Order made 25 October 2021, regarding Exhibits 1490–1588, unsealed as of 10:46:25AM, and resealed as of 4:16:00PM
5. 24 June 2022: Sealing Order and Publication Ban made 26 October 2021, regarding information contained in DARS Recording, Clerk’s Notes, and trial transcript for 26 October 2021;
6. 24 June 2022: Sealing Order made 26 October 2021, regarding Exhibits 1490–1588, unsealed as of 10:23:31AM, and resealed as of 12:23:29PM;
7. 24 June 2022: Sealing Order and Publication Ban made 29 October 2021, regarding information contained in DARS Recording, Clerk’s Notes, and trial transcript for 29 October 2021;
8. 24 June 2022: Sealing Order made 29 October 2021, regarding Exhibit 1556;
9. 29 November 2022: Sealing Order and Publication Ban made 2 November 2022, varying the Sealing Order and Publication Ban made 22 & 26 January 2021 (noted above) concerning Vancouver Fraser Port Authority documents;
10. 29 March 2023: Sealing Order made 28 February 2023, regarding Musqueam Indian Band’s privileged July 1996 recording;
11. 2 November 2023: Sealing Order and Publication Ban made 20 October 2023; a publication ban was engaged at 11:17:57AM and continued until 2:01:24PM;
12. 2 November 2023: Sealing Order and Publication Ban made 23 October 2023; a publication ban was engaged at 10:03:11AM and continued until 11:26:06AM.
“All parties agree that the evidence subject to sealing orders in the court below ought to be the subject of fresh sealing order(s) on appeal, with the exception of the plaintiffs, who have advised that they take no position pending receipt of the proposed consent order and a brief written submission regarding the basis for the sealing orders in due course, consistent with Publication Bans, Sealing Orders, and Anonymization Orders (Civil and Criminal Practice Directive, 10 June 2024).”
Many critical exhibits were sealed from public view over the duration of the case. The British Columbia Government asks that the seal be extended.
3. The Entire Case Was Removed From B.C. Court Services Online
BC CSO, or Court Services Online, is the website where people can look up *most* civil cases online. Also, traffic and Provincial criminal cases are generally accessible too. However, the Cowichan case was removed entirely, due to some documents being sealed.
Despite the public interest, a request to post at least some of the non-sealed material was refused. This is apparently standard procedure. Now, if people wish to see anything, they have to go to the Victoria Court in person.
4. Governments Did Not Alert Property Owners About Case (2016)
[1] Tsawwassen First Nation (“TFN”) makes application to be added as a defendant to this action.
[2] Cowichan Tribes (“Cowichan”) and others bring a representative action for declarations relating to aboriginal title of lands in what is now the City of Richmond, including at Tl’uqtinus and the south shore of Lulu Island, and relating to aboriginal fishing rights in the south arm of the lower Fraser River. As of November 2015, the defendants included Canada, British Columbia, and the City of Richmond.M.o
[3] The plaintiffs consented in November 2015 to deem notice letters to third parties as constituting formal notices of claim. These third parties included the Musqueam Indian Band (“Musqueam”), the Vancouver Fraser Port Authority (the “VFPA”), and TFN. In January 2016, the plaintiffs consented to the addition of the VFPA and Musqueam as defendants to the action.
[10] Contemplating the predecessor to subrule (b)(ii), the court in Kitimat, at para. 30, referred to Morishita v. Corporation of the Township of Richmond (1990), 1990 CanLII 211 (BC CA), 44 B.C.L.R. (2d) 390 at 393 (C.A.), where it defined a necessary party as a person “whose direct interests might be affected by the granting of the relief sought.” The court in Kitimat considered it “difficult to see how a binding order can be made in the terms sought in the petition, limiting the instruments held by Alcan, without its participation” (para. 32). Because Alcan’s “direct interests might be affected by the granting of the relief sought” according to the terms of the petition, it was a necessary party for a full determination of the issues, including at the appellate level,” and was thus “one who ‘ought to have been joined as a party.’”
Tsawwassen First Nation was added as a party in 2016, because the Court decided that it had a legitimate interest in the outcome of the case. But none of the parties served any kind of notice on the public.
Interestingly, Canada and British Columbia both complained that they didn’t have enough detailed information to fully process and respond to the lawsuit. There’s a glaring irony in this, since they couldn’t be bothered to notify the public at large.
5. Governments Did Not Alert Property Owners About Case (2017)
There are dozens of interlocutory decisions related to this case, but one from September 2017 is quite revealing. Specifically:
[1] These reasons follow the hearing of an application, brought by the defendant Attorney General of Canada (“Canada”), concerning whether or not this Court should order formal notice to the private registered owners of fee simple lands within the area referred to, in the Second Further Amended Notice of Civil Claim, as the Lands of Tl’uqtinus (the “Claim Area”), whose interests may be adversely affected by the relief sought by the plaintiffs in this action.
[2] Canada seeks an order that the plaintiffs deliver formal notice within 45 days of the date of this decision, or alternatively that the defendant, Her Majesty the Queen in Right of British Columbia (“British Columbia”), deliver such formal notice to affected private landowners.
Conclusion
[25] While I am not persuaded by the plaintiffs that the authorities definitively decide the issue before me, I have concluded that in the context of these circumstances I should exercise my discretion by dismissing Canada’s application.
[26] As a result, I further decline to comment on the issue, raised by Canada, concerning whether it is more appropriate for the plaintiffs, as initiators of this litigation, or British Columbia, from whom private landowners derive their fee simple titles from, to be the party to provide formal notice.
[27] In these particular circumstances, I decline to exercise the court’s discretion to require the plaintiffs to serve formal notice on private landowners. However, as I have already outlined above, my decision does not prevent any of the defendants from providing informal notice to private landowners if they wish to do so.
In 2017, the Federal Government filed an Application to compel Cowichan Tribes to serve at least an informal notice on all of the potentially impacted property owners. In the alternative, Ottawa said that the B.C. Government should be doing it.
The Court never said that notice couldn’t be served, just that it couldn’t be compelled. However, neither the Federal nor Provincial Governments apparently did.
Many thousands of dollars was spent on an Application to demand that landowners be notified, when it could have just been done for less money.
What readers need to understand is that this case was deliberately kept hidden from the public for years. They didn’t want the scrutiny that would follow. One has to wonder if this was done so that Cowichan Tribes would have a stronger hand in the “negotiations” that follow.
COURT RULINGS:
(1) https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1660/2016bcsc1660.html
(2) https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc1575/2017bcsc1575.html
(3) https://www.canlii.org/en/bc/bcsc/doc/2025/2025bcsc1490/2025bcsc1490.html
OTHER DOCUMENTS:
(1) Cowichan Notice Of Appeal Cowichan Tribes
(2) Cowichan Notice Of Appeal City Of Richmond
(3) Cowichan Notice Of Appeal Musqueam Indian Band
(4) Cowichan Notice Of Appeal Tsawwassen First Nation
(5) Cowichan Notice Of Appeal Vancouver Fraser Port Authority
(6) Cowichan BC Requests Sealing Order Be Maintained
MISCELLANEOUS:
(1) Cowichan Rosenberg Taxes Petition
(2) Cowichan Rosenberg Taxes Response