Common Ground: A First Nations land claim heads to appeal

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It's not something to perhaps many of us would ponder on a regular basis, but for an area in a BC city, those questions are being debated as people there digest, a Supreme Court decision that awarded a First Nation Aboriginal title to privately held land, not so far outside of Metro Vancouver. This case, which is now back in court, wrestles with difficult questions about land claims and Canada's commitment to reconciliation. To help us understand the issues at play, here is the CBC's Georgie Smythe and her documentary on Common Ground. - Let's choose outside, that's a good sign. On the number six road in Richmond, British Columbia, people are reluctant to talk. I have questions for them about a landmark court decision that for most of these residents came out of nowhere and changed everything they thought they knew about their properties. - So Rudy and Anna are from Ukraine. - They've been here for 50 years and they are afraid that the decision means that they, after all that time, will have nothing again. - I'm driving with my producer in this mixed residential and agricultural area. The road is sort of hemmed in by fences and houses seem to retreat behind front gardens and overgrown trees. Zooming out, we're actually inside a unique boundary, an area of around 325 hectares, where residents are now questioning what their land titles mean. It's because of the decision handed down by the BC Supreme Court last summer, which awarded counter-nation Aboriginal title to this same land, which includes properties owned by the city of Richmond and the federal government, but also by private citizens. The judge ruled fee-simple and Aboriginal titles can coexist, which makes this case unprecedented. On the ground, homeowners don't know what it means. It's just about to pull in to a resident who is within the Aboriginal title claim area. - Hello, I'm Bal. You can keep your shoes on, that's okay. - It's a farmhouse, we're good. - Balbot lives in a two-story house, built by his father, Chainbot, who bought the property in 1974, after immigrating from India. - He was a paramedic, working for on for off. - So what do you do with your for off? He bought a farm, and my parents they both ran it, they farmed it regularly, and yeah, now it's in my hands. - Bal now lives here with his 92-year-old father, wife and two kids. He says in the Punjabi community, holding land is like a nod to the future. - That's what we're trying to do with this property, right? You know, the old Indian mentality of handing it down generation to generation. - Bal takes me outside, like many farms around here, blueberries have grown out back. - I remember we would come home in a school bus, and there were certain times where I'm like, I don't want to go home right now, 'cause I know I'm gonna have to go out and help. I would miss the bus, right? Just putting off the inevitable. - There's a smile on Bal's face. One that says he's thinking about the time he spent on this land, which seemed immovable until a letter came in the mail. - And notice to registered owner, please take note that the recent BC Supreme Court decision of Calichan tribes versus Canada made some very important decisions which could negatively affect the title to your property. For those whose property is in the area outlined in black, the court has declared Aboriginal title to your property, which may compromise the status and validity of your ownership. - An aerial photograph was attached. - I took a picture of it and just magnified it, and I realized, yeah, I am right there. - So it wasn't until you got this map from the city that it sort of-- - Well, that's the whole thing. I didn't even know before that that there was any claim until the city sent this out. - In an over 800 page landmark decision-- - Not long after those letters went out, the Richmond Mayor called a town meeting in the ballroom of a local hotel. - Now, the purpose of this meeting-- - Hundreds, including Bale, sat for hours. - These are important information. - They wanted to hear about what it meant for a judge to say that Aboriginal title could coexist alongside their fee simple titles. - We all feel the same way. No one was informed about this process. - They also wanted to know why no one, not the city or the province, had decided to tell them about the litigation, which started five years earlier. - No one let us know about it. That's not right. - A lot of the questions, there weren't really questions. There was a lot of finger pointing. Why weren't we told? Why wasn't this? Why, why, why? But I think that the time for finger pointing is long gone. We need to find out what is the city, what is the province doing to help us? We've been here 15, 20 years. You can't just, you know, he knocked that out from under us. So I think there needs to be something done for the cowachan, but not given up private property. I don't think that's one of the answers. - The court heard arguments on whether the cowachan should be ordered to tell the more than 100 residents about the legal action unfolding in 2017. But persuaded by fears it would stir hostility between the nation and landowners, the judge ruled against it. Other parties could have notified them. But in the end, homeowners didn't find out until the summer of 2025. - In the decision, the judge has stated that the aboriginal title and private property, the fee simple title can coexist. But in the same sentence, she said that the aboriginal title is superior to fee simple title. So where does that put us, right? I think we're just walking around with, you know, a cloud over our head. - Cowachanation has called out the city for sending those letters, saying it was scam-ongering and that their dispute doesn't challenge or raise the validity of fee simple title. They said they just wanted what was taken from them. - Well, I am empathetic towards that, but they need to realize that they'd be doing the same to us private property owners. So if it wasn't good back then, why is it good now? If the cowachan didn't want us private property owners involved, then why is the map involving us? The map has us in their claim area, right? Drop a different boundary then just for Crownland. But no, this is what we see, and we're in it. (gentle music) - The trial started in September 2019 against the government of Canada and British Columbia, the city of Richmond, the Vancouver Fraser Port Authority, to Watson First Nation and Musqueam Indian Band by claimants at Cowachanation and to understand what they wanted. You need to get on a ferry and leave mainland Canada to cross the Strait of Georgia. It's a journey the plaintiff's ancestors once made regularly in huge canoes, loaded up with belongings and singing paddlers. (humming) That's Jared Cristenahan Williams from Cowachan Tribes. Part of the large nation of the Cowachan or Cowatsan in whole Caminam language, who won the case. (humming) - Where at the beach in Cowachan Bay? On the east coast of Vancouver Island about an hour north of Victoria, tucked in behind the southern Gulf Islands and today under low gray clouds. That sound is a colony of California sea lions lounging angrily near the dock. The rain is relentless. - You know what, my hair doesn't last and the rain is why I brought them back. - Jared is hard to miss. He's wearing a traditional cowachan sweater an iconic knit popular on Canada's West Coast and a perfectly styled red mohawk. - So if you were here and you saw 100 or 200 canoes on their way in here. - Jared tells me he speaks with a stutter, which he deals with by inhaling deeply, closing his eyes and focusing on his. words. It's like you're watching him unearthed thoughts in front of you. He gestures to an island across the water where a memory lives. Of him explaining to his two boys the vastness of Cowachan's traditional territory. We land on a spot on Salt Spring Island that was including far flung villages. He recalls one kayak trip in particular. We roll up and there's nothing there and it's hard for them to recognize it. They go okay so what was here and I go oh well this is where we harvested you know clams over there and like we harvested you know these like reeds over there and if you look there's this giant you know like a mitten over here and they're like yeah but where's the house is that and I'm like well we haven't had houses here for years and they go oh well why isn't it you know you know like a reserve dad and I said oh well you know we were you know like removed from it and they go oh well is it ours? I'm like well it's always ours. He says that history was hard for them to grasp until the Supreme Court decision which confirmed their nations claim to that land in Richmond. So having this access to one of those villages helps them realize that that like history isn't you know just you know like a legend it's it's you know all like real. A village called Clactinas were well into the 20th century hundreds of cowards and would travel to every summer to live, gather food and hunt the sockeye salmon that returned from the ocean to BC's longest river. Our people were there we knew we had proof, we knew we had history, we knew we had oral history as well as written history. Cindy Daniels is the chief of couch and tribes. We're talking to her in the boardroom of their main office in Duncan. She's also wearing a couch and sweater. In fact the whole wall behind her is lined with them they're framed and preserved behind glass. I was happy to hear the result of the court case it was a happy day for all of us. The judgment is often referred to as the cows and tribes decision but there's actually four other bands involved in the case. Shamayna's First Nation, Panellicate Tribe, Halalt First Nation and Lyaxon First Nation. All descendants of the cowards and people. For them the court action didn't come out of nowhere but out of decades have failed treating negotiations with the province. They say the courtroom was their last option to assert their rights. It's like you're being torn from your home when we say that we've lost access to our own land. It's like a gap in you. Our young people don't know we don't know what it was like to to live on like tenas because of that removal that was forced on us historically and we all feel it and to regain that means a lot to all of us here. Planning your next adventure with a smart buddy insurance app travel insurance is just a hop away. In just 60 seconds you can secure up to one million dollars of coverage for medical emergencies or get trip protection for delays or cancellations right from your phone. Download the smart bunny insurance app today and travel smarter. Smart bunny insurance fast easy and always ready to hop into action. Smart bunny, smart bunny. Insurance sold by smart bunny insurance services ain't kind of written by various insurers, coverage, exclusions and limitations may apply. Then join me and my friends at lonestarcasino.com. That's L-O-N-E-S-T-A-R Casino where you can experience the thrill of Las Vegas. Hit pause on life and hit play on lonestarcasino.com. "Lonestarcasino is a free-to-play social casino. Voidware prohibited. Visit lonestarcasino.com for more details." Sign up today for an incredible welcome bonus. Play bold, win big. At click tenas, there were big houses along the riverbank. Historians and elders told the court, posts and beams would sit permanently at the site. While cedar-plank roofs and walls would travel with the couch in, every time they paddled the straight, balance between huge canoes like catamaranes, with more belongings stacked on top. "I sometimes weather prevented them from knowing exactly where they were going, but the elders always knew." Then as the court heard, in the late 1700s, men and boats appeared at the mouth of the Fraser River. Spanish and English explorers. "Sore a canoe with six Indians near the entrance of the river." In 1824, one records the existence of this village in his expedition journal. "These people are of the Cowichan tribe and had just crossed from Vancouver's island where they now live." 22 years on, crown sovereignty has declared on land that is later named British Columbia, ownership under Queen Victoria, and a promise is made to the Cowichan. From BC's first governor, James Douglas, that they'll be treated with justice and humanity, if they remain at peace with the settlements. This is all happening as survey is rushed to map the province. It's history that was presented to court and is held for safe keeping under Carlos Mcdonald. "We'll look at this one first. These are the field notes of land surveyor Trutch." Field notes from one of BC's earliest surveys, Joseph Trutch, a preserved in the temperature-controlled vault here inside Victoria's land title office, where Carlos is the director. They show details from when the land at cluctiness is measured for the first time. "They would reflect what they saw in their notes, and so this is. " "This looks like Richmond." "This is Richmond?" "Yeah." "And this is the area that was involved in the litigation." "Yeah." "So you can see, for example, there's a little note here, and of course it's caught in the binding." "Yeah." "But it says, I believe it says Indian Village." A crown grant title, a later issued, but instead of the waterfront property being set aside for the cowachan, part of it is covertly sold to Richard Moody, the man tasked with protecting that promise to the cowachan. "Moody was aware that some of these lands were to be reserved for the Indian settlement." Pages of historical documents, yellowed by time, accepted by the court as showing how British Columbia exceeded its constitutional authority. Each time it issued a crown grant, a fee-simple interest in these lands. Moves that set in motion events that would lead to cowachan nation taking the crown to court more than 150 years later in a trial that took six years with evidence spanning centuries. "What was cowachan tribes asking from the court?" "Lineback." "Can you expand on that at all?" "We knew through our history that we belong there, that we lived there, that we fished there, that we hunted there, that we gathered food there, and we lost our land over there, and we wanted it back." The judge declared the land titles in the claim area held by the government of Canada and the city of Richmond to be defective and invalid because the government at the time lacked the authority to issue the original crown grants. And of course, it also declared Aboriginal title over those privately held lands. "What would you say to people that feel anxiety about existing inside that Aboriginal title claim?" "They need to help us tell the provincial government to reconcile the whole issue. Come work with us." "Do you have empathy for their position?" "Some people have characterized them as being innocent third parties. Do you feel empathy for them?" "Do I have to answer that?" "I'd love for you to try." Chief Daniels didn't answer that in the end. She tells me the public reaction to the court decision has been difficult, saying members of the nation have been targets for harassment and racism, with people calling their office or abusing them in public. "If I put the shoe on the other foot, you know, they're worried about losing their property, but nobody in this negative media is thinking of how we, the five nations, felt being removed from our own land. We were the first victims, but now it seems like it's turned right now and they're all thinking of themselves and their property will, they're actually on our land." The hum of Vancouver's downtown echoes into the concrete exterior of Vancouver's courthouse, where the decision, which is currently paused, will come to the Court of Appeal, likely sometime this year. But until then, questions persist. One defendant, the government of British Columbia, faces attacks in the legislature. "Can the Premier point to any place in British Columbia that was not traditionally owned?" were many are insisting on changes to the Constitution, to prevent future claims. on fee simple title in B.C. Critics are worried more conflicts involving private property could lay ahead. "This is going to be a case that's going to come to every community." About a third of all First Nations in Canada are in B.C. and only a handful have signed treaties. Premier David E.B. is under pressure to cement certainty for residents. "This is not a settled area of law for British Columbia. We're making our position clear. We're going to defend private property. We're going to stand up for private property." "We're dealing with an unprecedented decision that is a direct assault on a core element of our economy. And that is the ability to hold private property." Thomas Isaac specializes in Aboriginal law in Vancouver. He's been outspoken about what the case could mean in B.C. and beyond. Ultimately, he thinks the decision presents a serious threat to fee simple land. "There's only one answer that's going to be acceptable out of all of this." And that is Indifisable's title has to be remain Indifisable. That doesn't mean First Nations won't have remedies in Aboriginal title cases compensation from the Crown, for example. But we cannot be fiddling with Indifisable title if we want to be a functioning economy. If we want to continue down this road of reconciliation, we're going to need some degree of wealth to deal with that issue. And if you start playing with Indifisable title, you're really betting the farm. There's a particular section of the decision towards the end that really sticks out to Tom. And that was the court's words and numerous places in the decision that Indifisable title is no longer Indifisable when it comes to Aboriginal title being proven. And what that means is that your title, your land title, your private property title doesn't have the protections that all private property has basically in all the Western economies. So, yeah, I was extremely surprised at that. I certainly didn't see that ever coming. I probably nobody saw that coming. There is disagreement, though. Other legal minds say we shouldn't be surprised or alarmed at this decision at all because Canada made a commitment to recognize Aboriginal title in the Constitution 44 years ago. There is a historic relationship between the Crown and Canada's Aboriginal peoples. On a rainy Ottawa day in 1982, Queen Elizabeth outlines changes to Canada's Constitution, safeguarding rights of First Nations to their culture and land. This isn't a moral but also a matter of property security. Arya Laskin works in Aboriginal law and says an honest conversation about Canada's execution of those rights is long overdue. If there is just a reckoning between the First Nation lands, no title holders and the Crown government that says what are we going to do about this problem in a way that protects everyone. What's for certain is a larger conversation has opened up about what Canada's commitment to reconciliation should look like. What does reconciliation look like in law? Where are we going as a province? Is this doable in British Columbia with 200 First Nations? There's a lot of small detailed questions and there's some very mammoth and I would call them existential type questions. I don't get to say that very often in my career but I would say that about this particular set of facts and this decision. When we won the case, I was saying that this is precedent setting for all First Nations across Canada doesn't affect the nation. It's going to benefit First Nations across Canada that are having the same fight and it's already showing that we're being contacted from others that have started a court case or are going to start one. And they said the culture and tribes court case is going to help them. This is ground we must all walk on. Canada, the judge says in the final lines of her decision, owes a duty to negotiate in good faith reconciliation. Nobody knows what happens next. The soil under Bal's feet doesn't feel as firm as it once did. His father worries about what will happen. He's 92, he's dealing with dementia so he always asks, do we need to move? Are we going to be forced off this land? And I just have to be sure I'm no dad, right? We're still going to be here. You bought this property, you built it up and don't worry, it will always be in the family. Back on the soaked ground of Vancouver Island, Jared is thinking about the future too. He's hopeful one day everyone will recognize their claim as rightful for a place that was never surrendered. We don't want their homes. We're not here for your home. We're not here for your land. We're not here to change the way you live. We're not here to alter your life. And lastly, the land has always been ours. A documentary on common ground was produced by the CBC's Georgie Smythe with help from the CBC audio documentary unit. You've been listening to the current podcast. My name is Matt Galloway. Thanks for listening. I'll talk to you soon.