In two decisions from September 2017, the British Columbia Supreme Court (Court) addressed the issue of whether to require a claimant for aboriginal title to serve formal notice on private registered owners of fee simple lands. In Cowichan Tribes v. Canada (Attorney General) (Cowichan Tribes) and The Council of the Haida Nation v. British Columbia (Council of the Haida Nation), the Court determined that because the claimants were not seeking to invalidate the fee simple interests of private landowners, formal notice was not required. The decisions allude to the broader uncertainty in the law about the interaction between aboriginal title claims and private property.
In Cowichan Tribes the plaintiff, Cowichan Tribes (Cowichan), brought a representative action for a declaration of aboriginal title over an area that is now part of the City of Richmond, B.C. Cowichan also sought a declaration that the fee simple interests granted by the Crown to private owners in the claim area is an infringement of their aboriginal title in those lands. As a preliminary matter, Canada, as one of the defendants, sought an order requiring Cowichan, or alternatively British Columbia, to deliver formal notice to any private landowners within the claim area — an estimated 200 landowners. British Columbia and the City of Richmond, also defendants in the action, supported the application by Canada (British Columbia only supported the application as it related to the delivery of notice by Cowichan). Two other defendants, Musqueam Indian Band and Tsawwassen First Nation, did not appear on the application by Canada (Musqueam and Tsawwassen hold competing aboriginal interests to Cowichan, a First Nation more commonly associated with Vancouver Island).
Similarly, in Council of the Haida Nation, the plaintiff, Haida Nation, sought a declaration of aboriginal title over Haida Gwaii off the coast of British Columbia, which has the potential to impact 3,285 private properties. Canada and British Columbia also applied for Court orders to address the impact of the litigation on third parties. British Columbia was seeking an order that would require Haida Nation to either amend their claim to restrict any remedies against third parties, or to join private landowners as defendants. Canada was seeking an order to deliver notice to private landowners, as it had done in Cowichan Tribes.
In each case, the practical consequence of the orders sought by the provincial and federal Crown was that private landowners potentially impacted by a declaration of aboriginal title should be made aware of the action and, effectively, invited to participate as defendants. The Crown argued that the litigation should include private landowners because if a declaration of aboriginal title over the claim areas was granted, the remedy would not only be against the original Crown grants of fee simple, but also against the interests of the private landowners themselves. Further, since the remedy sought could impact private landowners’ interests, giving formal notice would promote judicial efficiency and economy by avoiding multiple proceedings.
In both cases, Cowichan and Haida Nation submitted that they were not seeking a declaration that would invalidate the fee simple interests held by private parties; nor do they claim that they are entitled to possess those lands as against private landowners. They were only seeking declarations of aboriginal title and the Crown’s infringement of that title. They also asserted that rather than promoting judicial efficiency and economy, formal notice and participation of large numbers of defendants will frustrate litigation and stifle reconciliation by not limiting the proceedings to the proper parties.
In both Cowichan Tribes and Council of the Haida Nation, the Court determined that private landowners are not proper parties to the claim and including them would not be in the interest of the administration of justice. The Court agreed with the plaintiffs in both cases that adding hundreds or even thousands of defendants could frustrate the litigation entirely. Further, the Court added that the private landowners would not advance the litigation. The privately held fee simple interests are derived from the colonial and provincial historical Crown grants. Therefore, private landowners’ claims would be no different from the Crown and only serve to add more voices to the same argument without strengthening the Crown’s position regarding the existence of aboriginal title.
In Cowichan Tribes, Justice A. Power noted that determining the consequence to a private landowner of a declaration of aboriginal title on private lands — if any — is better left for another day. Private landowners will have an opportunity to make arguments, including that they were not given formal notice, if and when a subsequent proceeding is brought. Justice Powers also noted that although there is no duty on Cowichan to provide formal notice, the Crown and British Columbia were not precluded from giving informal notice to affected private landowners if they wished to do so.
In Council of the Haida Nation, Justice Fisher (now of the B.C. Court of Appeal) additionally noted that if formal notice was given, it is possible that private landowners could be forced to either participate in the costly litigation or be prejudiced in future litigation about the impact of any declaration of aboriginal title on their ownership interests. Therefore, giving formal notice to the private landowners at this stage could negatively impact the interest of the private landowners themselves, and is better dealt with in a separate litigation if aboriginal title is established.
It is notable that a number of courts have confirmed that aboriginal groups with competing claims may be proper parties to aboriginal title litigation, including most recently the Ontario Superior Court of Justice in Crees (Eeyou Istchee) et al v. Canada (Attorney General) et al. Indeed, the Court itself considered this issue in determining that Tsawwassen First Nation was entitled to join as a defendant in the Cowichan aboriginal title litigation (see the decision here).
The Court’s decision not to further extend aboriginal title litigation to private landowners alludes to the broader legal uncertainty about the implications of a declaration of aboriginal title on private third-party interests. The historic declaration of aboriginal title by the Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia (Tsilhqot’in) expressly excluded private lands. It may be that courts will ultimately find the grant of fee simple interests prior to constitutional protection in 1982 extinguished aboriginal title, or that the infringement was justified based on a “compelling and substantial objective”. In Delgamuukw v. British Columbia, the Supreme Court of Canada considered “the building of infrastructure and the settlement of foreign populations” to be a sufficiently important objective to potentially justify an infringement of aboriginal title (a statement that was repeated in Tsilhqot’in), provided the Crown meets its other obligations to the aboriginal titleholder.
In our view, even if an infringement of aboriginal title is ultimately found, courts will be reluctant to grant orders against private third parties and are more likely to limit any specific remedies to actions against the Crown. Nevertheless, this issue remains unresolved in the law and the specific facts, location and nature of the private interests at issue may ultimately influence the remedies fashioned by courts, particularly if the third-party interest is of a commercial nature. In the meantime, private landowners in the City of Richmond and Haida Gwaii will continue to watch this litigation carefully.