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DARRYL DYCK/The Canadian Press
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It will be years before the Supreme Court of Canada decides whether a B.C. judge was right to declare that Aboriginal title takes precedence over the the way land has been bought and sold in the province for more than a century.
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But the impact of the B.C. Supreme Court’s Cowichan Tribes decision is already reverberating in ways large and small.
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The August decision by Justice Barbara Young concluded the Cowichan of Vancouver Island had established that they had a historical presence in what is now Richmond, B.C., and had been swindled out of claim to the land by the underhanded tactics of a Crown agent in the 1870s.
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As a result, Young concluded the Cowichan have Aboriginal title – a type of ownership claim rooted in ancestral use of land – to roughly 800 acres in Richmond, including private properties. That title is a “prior and senior right” to land, she ruled, over and above the “fee simple” title that private landholders have.
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Last week, the owners of a major industrial property within that claim area announced they would ask the court to reopen the case. Montrose Properties is arguing it should have been a party to litigation that has an impact on its holdings.
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“As one of the many private landowners surprised by the impact of a case that we were not even party to, we have no choice but to take this step,” Ken Low, president and chief executive officer of the real estate firm, said in a statement.
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Montrose Properties is the largest single landowner with land in the title area. Its affected holdings include a Coca-Cola bottling plant and a Canadian Tire depot.
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Low said property owners can’t wait for the Cowichan decision to move through all the appeals, a process that will likely take seven years or more.
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Meanwhile, the City of Richmond is facing a tax revolt from landowners who believe their properties have been devalued by the court ruling.
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Many landowners learned for the first time late last month via a letter from the city’s about the impact of the decision.
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All parties in the case are appealing, including the provincial government, which has said the ruling throws land ownership across British Columbia into question given that much of the province is under land claim from various Indigenous nations.
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The Cowichan are also appealing, arguing that Young’s ruling improperly restricted their much larger original claim.
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Now, Richmond is facing a tax revolt from landowners who believe their properties have been devalued by the court ruling.
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Property tax expert Paul Sullivan is preparing a case to appeal property assessments on behalf of homeowners and industrial clients, arguing properties in the title area should have their tax bills lowered.
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“I’ve talked to the biggest developers in our province who are my clients, I’ve talked to seasoned experts in valuation, and they’re all saying to me right now that these properties are not saleable. There’s no value,” said Sullivan, a Vancouver-based principal with Ryan, a leading global tax-services firm.
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Lawyer Reece Harding, who specializes in local government issues, said beyond the questions of property rights, the ruling will force municipalities to confront questions of regulatory rights.
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“Who gets to zone and expropriate?” he asked. “Who’s the regulator now? Do they get to levy taxes now? Is it the City of Richmond, or the Cowichan? That question has not been asked. Nobody knows the answer to that right now.”
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Amid the furor, some legal experts and representatives of the Cowichan have noted that the Cowichan explicitly did not lay claim to private property.
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A lawyer for the Cowichan Nation, David Rosenberg, told The Globe the case revolves around unique circumstances that could limit its impact on other privately-held land in the province.
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But Thomas Isaac of Cassels Brock & Blackwell LLP, a leading expert in Indigenous law in Canada, argued the opposite, saying that the ruling, if upheld, could have have significant implications across B.C.
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“The judge expressly states in the decision that, in B.C., you cannot rely solely on your title as unquestionable evidence of ownership of land,” Mr. Isaac said.
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The judge, he said, did not restrict this to the Cowichan title land.
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This is the weekly British Columbia newsletter written by B.C. Editor Wendy Cox. If you’re reading this on the web, or it was forwarded to you from someone else, you can sign up for it and all Globe newsletters here.
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