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Politics : Formerly About Advanced Micro Devices -- Ignore unavailable to you. Want to Upgrade?

To: golfer72 who wrote (1571046)	11/10/2025 9:21:15 AM
From: Maple MAGA	Respond to of 1571899

All of B.C. now subject to 'Aboriginal title' claims What is the status of Aboriginal title in British Columbia as a result of the Richmond decision by Justice Young of the B.C. Supreme Court and what specifically did Justice Young decide? The judge declared that three square miles in the heart of Richmond is now Aboriginal title. Critically, the Cowichan did not sue the fee simple title owners (both businesses and residences). Therefore, she did not make a specific order declaring those titles were invalid. However, she declared Aboriginal title was superior to fee simple titles. The basis for finding Aboriginal title was her determination that, as of 1846 (when the British Crown entered into the Oregon Treaty with the United States, and thereby declared sovereignty over what became B.C.), a band of a little over 1,000 Aboriginal peoples, now known as the Cowichan, used the area each summer for fishing. It was not their permanent home. They lived on Vancouver Island. They occupied the Richmond lands for only a few months each summer. But the judge determined that that was sufficient to meet the test of "exclusive occupation" required to establish Aboriginal title. This is the test laid down by the Supreme Court of Canada. The Colony of B.C. started issuing fee simple titles in the Richmond area in the 1860s. The Cowichan that had fished during the summer had left the area by about 1870. There has been no connection between them and the area since then. But various courts have ruled there is no need for "continuous occupation." So long as the judge can find on the evidence that the band had exclusive occupation in 1846, Aboriginal title can be declared. That is what the judge did. Extraordinary rules of evidence for Aboriginal title claims In finding the specific areas which had been "exclusively occupied" in 1846, the judge relied on Cowichan witnesses who gave seventh generation hearsay evidence from their distant ancestors. First-hand hearsay evidence has been inadmissible throughout the history of the common law but in claims by Indigenous people to prove Aboriginal title, the Supreme Court of Canada decreed that seventh generation hearsay is admissible. The Supreme Court of Canada justified this extraordinary exception to the normal exclusion of hearsay evidence on the grounds there was no other way Aboriginal peoples could prove their cases. Justice Young went on at length as to how reliable this evidence was (notwithstanding that first-hand evidence is inadmissible from everyone else because it is deemed unreliable). For example, at paragraph 95 of her decision, she describes how the band engaged in berry picking, which presented the opportunity for parents to teach their children the history of their occupation of the land. This, she found, ensured that an Aboriginal person today could be relied on to accurately tell the court what portions of land were occupied in 1846. How does Aboriginal title affect fee simple title? While some commentators have belittled the significance of the Richmond decision, they are dead wrong. Let there be no mistake. Aboriginal title now trumps fee simple title. The fact that this judge did not declare the fee simple titles invalid and issue an order for the residents and business owners to vacate, leaving their properties of great value to the Cowichan, is only because they (i.e. the Cowichan) had elected not to sue the fee simple owners. So, no order could be made against the fee simple property owners. But the court's declaration is that their titles are subject to overriding Aboriginal title. She ordered the B.C. government to enter into negotiations with the Cowichan Nation on how to sort out the problem of what should be done in the face of the conflict between fee simple title and Aboriginal title. She expressed the hope and optimism that everything could be resolved in the spirit of "Reconciliation." The problem with such an approach is that the Cowichan Nation has almost all the leverage in the "negotiations," which normally doesn't make for a reasonable or balanced outcome. For instance, they now own the land and could now sue the current fee simple owners for an order cancelling their titles and vacating their properties and, on the basis of the Cowichan decision in Richmond, they would succeed. Or the provincial government might use tax dollars to buy back the fee simple titles from the Cowichan. No one knows what will happen. Whither British Columbia? In his recent piece in the Vancouver Sun, eminent legal scholar Thomas Isaac talks wishfully about how this can all be resolved. He talks about "fair compensation" to the Cowichan in lieu of kicking out the fee simple owners. But he quotes from Supreme Court of Canada authority that "fair compensation may need to exceed the price of fee simple land." In other words, the Cowichan may take compensation instead of the fee simple titles, but the amount paid may be worth more than the value of the titles today. A resolution to this incredibly ambiguous situation with the fee simple owners will happen only if, on appeal, the Supreme Court of Canada undoes its previous damaging rulings through their creation of Aboriginal title. As a long-time participant in the legal process, I'm skeptical. In the meantime, what do the owners of the fee simple titles in Richmond do? No one would reasonably buy their properties for anything close to fair value given the ambiguity over ownership and uncertainty over how this might be resolved. Further, no lender would grant a mortgage based on the value of those properties today. I wish I could be more optimistic. But I see no basis whatsoever to be optimistic where our entire province is subject to Aboriginal title claims from the roughly 2 per cent of the province's population that are registered under the Indian Act and therefore members of bands that can claim Aboriginal title.