A recent B.C. Supreme Court decision stacks Indigenous land claims against private property rights, and Vancouver lawyer Thomas Isaac lawyer says the ruling could have real implications for private property owners in that province.

A decision was delivered on Aug. 7 following the longest trial in Canadian history, awarding Aboriginal title over a swath of land in Richmond, B.C. to the Cowichan Nation, as well as fishing rights in the Fraser River.

The land at the centre of the decision is owned by the federal Crown, the Vancouver Fraser Port Authority, the City of Richmond, and private third parties. Owners of homes and private businesses in that area were not the intended target of the court action, and no declaration was made that directly affects them now.

Isaac, a nationally-regarded specialist in Aboriginal law and partner at Cassels Brock & Blackwell LLP, said the decision “fundamentally upends” the land title system.

“There are very serious implications flowing from this decision if it were to be upheld on appeal,” he told Real Estate Magazine.

On Monday, B.C.’s Attorney General Niki Sharma pledged to appeal the decision, citing the possibility of “unintended consequences” resulting from the ruling.

“I think everyone with property in areas that may be subject to Aboriginal title claims, which isn’t restricted to British Columbia, needs to pay attention,” said Isaac.

What the ruling means

Isaac says the ruling boils down to two things. First, the court has said that Aboriginal title can be declared on private property. Second, if Aboriginal title is found, First Nations can seek to have that land transferred to them by going through the courts.

“Up until last Thursday, you could rely on the land title system. You have a fee simple property in British Columbia, you could essentially take it to the bank,” he said.

Now, he says, the Sword of Damocles – essentially a looming threat – hangs over property owners in affected areas. 

“What (the judge) is saying is that until they go to possess your land, you’re not affected.”

“Go tell the bank that.”

Isaac says the decision challenges the proposition that you can trust being given title to a property by the government.

“Much of our entire economic system is based on that. People get mortgages, and people have lines of credit for their businesses in many instances. They’re based on security in what? Real estate.”

“So now if you have a court saying, ‘That isn’t the highest form of land title anymore,’ the consequence of that is significant.”