Good morning.

Last Friday, a B.C. Supreme Court judge crossed the third rail of land claims negotiations in British Columbia.

For decades, court cases and settlements involving Indigenous rights and title in British Columbia have avoided including private property in the discussion.

In Cowichan Tribes v. Canada, Justice Barbara Young went there.

Although Justice Young was writing for a lower court – the B.C. government has already said it would appeal – lawyers say the issues she raises could have sweeping impact.

She found that in centuries past, the Cowichan Nation, an Indigenous group on Vancouver Island, had an annual summer village on the Fraser River, on territory that is now in the City of Richmond, where they fished for salmon.

She concluded that title was never extinguished and as a result, the Cowichan Nation – comprised of several First Nations – has title to 800 acres of land, a parcel that includes land currently held by private landowners.

“A precedent that will follow from this case is that provincial Crown grants of fee simple interest do not extinguish nor permanently displace Aboriginal title,” she wrote.

Canada’s and Richmond’s fee-simple titles on the land are “defective and invalid.”

On land where the Crown has granted fee-simple title to third parties, Justice Young wrote that the Crown has an obligation to negotiate.

“Reconciliation does not mean that Indigenous peoples must always sacrifice their right to their established interest in land. Fee simple interests in this land are not superior to Aboriginal title.”

For so many reasons, the case is remarkable. The ruling is 863 pages long, the result of a trial that consumed 513 court days over five years, from 2019 to 2023.

The defendants in the case were the governments of Canada and British Columbia, as well as the City of Richmond and the Vancouver Fraser Port Authority. But it also included two other Indigenous groups with historic ties to the Fraser River, the Musqueam and the Tsawwassen.

Justice Young also awarded the Cowichan fishing rights on the south arm of the Fraser River, a decision which rankled the Musqueam.

It was a Musqueam member who prompted a landmark 1990 Supreme Court of Canada decision granting his First Nation fishing rights on the river.

“Musqueam has always granted access to First Nations with direct family relations to stay on our shores and fish in our water, but that access comes with the recognition and respect that the south arm of the Fraser River has been stewarded by Musqueam,” the First Nation said in a statement Friday.

But it is the impact of the ruling on private property rights that prompted the B.C. government on Monday to declare that it will appeal.

“The ruling could have significant, unintended consequences,” Attorney General Niki Sharma said at a hastily called news conference.

She said the government will “advance various grounds of appeal” but will keep the door open to negotiation in the meantime.

The land is largely industrial and is on the Fraser River in Richmond, across from Tilbury Island, south of Highway 91 and east of Highway 99.

There are some privately held properties but lawyers involved in the case say that, if the ruling stands, that land would not be affected until it was sold.

Justice Young suspended her declaration of invalidity on the land owned by Canada and the City of Richmond for 18 months so the Cowichan, the federal government and the City of Richmond “will have the opportunity to make the necessary arrangements.” But the declaration of Aboriginal title takes effect immediately and applies to all the land, including the privately owned parcels.

“Much remains to be resolved,” she wrote. As the judge herself said, the question of the relationship between aboriginal title and private land ownership was “unsettled” in Canadian law. She has now settled it, by holding for the first time in Canadian law that the two sets of rights can co-exist on the same land.

The property owners may not have even been aware that the status of their land was in play at court.

In motions preceding the lengthy trial, the federal government in 2017 asked the court for an order forcing the Cowichan to inform the landowners.

But the court declined, saying instead that any level of government – federal, provincial or municipal – could notify the owners if they wished.

In 2019, the federal Justice Department told The Globe it would be premature to formally do so.

Cowichan Tribes Chief Cindy Daniels said Monday her nation initially tried to get an agreement through the treaty process, but there was ”no openness" to discuss the land and so they went to court.

She said the Cowichan’s goal is to “recover and restore our village and surrounding lands, re-establish our permanent residence and river access, re-establish our cultural practices including those that support food security and sustainability, realize economic development and re-establish the truth of our history in that region.”

Robin Junger, a lawyer focused on Indigenous and environmental law with McMillan LLP, said the ruling’s finding – that private owners and First Nations can both hold title rights to the same land at the same time – could have a massive impact.

“It’s any fee simple home in British Columbia would be subject to the same rationale.”

But he said he expects this case will be before the courts for some time.