B.C. attorney general, Cowichan Nation lawyers welcome Supreme Court decision on N.B. case

SCC's refusal to hear Wolastoqey First Nations' appeal gives B.C. a 'clear path' for Cowichan case appeal: AG

Both B.C.'s attorney general and lawyers for the Cowichan (Quw'utsun) Nation welcomed the Supreme Court of Canada's decision not to hear a case out of New Brunswick on First Nations' ownership claims of private industrial forest land.

It comes as the B.C. government and Cowichan Nation pursue appeals after a contentious B.C. Supreme Court ruling that recognizes that the Cowichan Nation's Aboriginal title extends to privately-owned property — held through what is known in law as "fee simple" — over about 3.25 square kilometres of land along the Fraser River in the Richmond area.

On Thursday, the Supreme Court of Canada declined to hear an appeal of a New Brunswick Appeal Court decision that saw a judge weigh in on the finding of Aboriginal title as he ruled on the case brought by the Wolastoqey First Nations.

B.C. Attorney General Niki Sharma told reporters that the decision not to hear that case bodes well for the province's appeal in the Cowichan case, which the B.C. government filed after concerns about the impact on private land owners in the area.

"I think it gives us a clear path to an appeal here in B.C., and we're continuing to pursue that legal option," she said.

A similar sentiment was echoed by David M. Robbins, one of the lawyers representing the Cowichan Nation as it pursues its own appeal of the case.

In a statement, Robbins' Woodward and Company firm said it had sought leave to intervene in the New Brunswick case.

The nation sought to argue that the Supreme Court shouldn't weigh in on the important question of Aboriginal title and private landownership using that case, and should instead do so when the Cowichan's appeal is heard.

"The Supreme Court of Canada has not decided the issue nor upheld the New Brunswick Court of Appeal," Robbins said in the statement. "It has left the question open for a future case."

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Last December’s New Brunswick Appeal Court ruling said there is "an important difference between a finding of Aboriginal title and a judicial declaration of Aboriginal title" as it found against the Wolastoqey First Nations.

Former chief justice Ernest Drapeau said in last year’s ruling he was seeking "to open a clearer path to peaceful and respectful reconciliation between Aboriginal and non-Aboriginal Canadians in this province."

The court must respect the Supreme Court of Canada’s guidance in the 2014 Tŝilhqot’in decision that reconciliation involves a balance between Indigenous and non-Indigenous interests, he wrote.

Drapeau said granting "exclusive possession, occupation and use" of the land to the appealing Wolastoqey First Nations "would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians."

The federal government and the City of Richmond are also pursuing appeals in the Cowichan case.

The Crown-Indigenous Relations Department said the Wolastoqey decision allowed by the Supreme Court of Canada to stand on Thursday was an important ruling, adding that "private property rights are fundamental."

"Canada takes note of the Supreme Court’s decision not to hear the Wolastoqey case," a spokesperson for Crown-Indigenous Relations Minister Rebecca Alty said in a statement to The Canadian Press.

"In the case, the courts found that Aboriginal title could not be declared over privately owned lands. This important New Brunswick Court of Appeal decision will inform arguments in other cases, such as the Cowichan case in British Columbia."

Richmond Mayor Malcolm Brodie similarly told The Canadian Press that the city hopes the rejection of the Wolastoqey Nation's leave application "is a signal of the current thought process of the Supreme Court of Canada, and we will get a similar result."

With files from Jacques Poitras and The Canadian Press