Richmond officials and property owners are grappling with the implications of a recent B.C. Supreme Court ruling regarding Aboriginal title held by the Cowichan Tribes. The decision has raised significant legal uncertainties that could impact private landowners across British Columbia.

The Cowichan Tribes achieved a declaration of Aboriginal title over part of Richmond but did not seek to transfer privately owned land at this time. However, the ruling suggests that Aboriginal title may take precedence over private property rights, which has sparked widespread concern among landowners. This uncertainty could jeopardize mortgages and insurance for homeowners and deter potential investors from engaging with British Columbia or Canada as a whole.

The decision is currently under appeal, but the process could take years and may not address the critical questions surrounding Aboriginal title and private property. In August, a proposal was made to expedite the legal process by sending a reference case directly to the Supreme Court of Canada. This would allow the federal government to seek a quicker resolution to the legal questions at hand. Alternatively, British Columbia could submit a reference question to the B.C. Court of Appeal, which could then be escalated to the Supreme Court. However, both options may still take too long, leaving legal uncertainties that could hinder investment and affect the lives of residents.

The ongoing situation also complicates efforts toward reconciliation with Indigenous peoples. Many First Nations have expressed that their goal is to address historical injustices rather than dispossess current landowners.

Another potential solution involves constitutional amendments. While large-scale amendments can be complex, Section 43 of Canada’s Constitution Act, 1982, allows for amendments that affect only one province through resolutions passed in that province’s legislature and in the federal Parliament. This section has been used in the past to modify rights and property laws, including adjustments to minority rights and property rights in various provinces.

Historical testimony suggests that Section 43 could be applicable to alter Aboriginal or treaty rights within a specific province. This avenue may provide a more immediate path to resolving the legal uncertainties stemming from the Cowichan Tribes’ title declaration, potentially benefiting both landowners and Indigenous communities in the long run.