Indigenous title is not a relic of the past, but a living and continuing reality. The recent Cowichan Tribes V. Canada decision affirmed this and, in the process, provoked a storm of confusion, fear and protest. In the wake of the longest court case in Canadian history, BC’s NDP leader David Eby said he was worried about the integrity of private property rights. Richmond’s Mayor fuelled fear by sending a letter to 150 private property owners saying that the decision may “compromise the status and validity” of their ownership. Quw’utsun Nation called these statements “at best, misleading, and at worst, deliberately inflammatory” and that the case has not and does not “erase private property.”
Cowichan decision
The Quw’utsun (Cowichan) sought Aboriginal title to their traditional fishing village of Tl’uqtinus on the south shore of Lulu Island (modern-day Richmond). They also sought Aboriginal rights to fish the south arm of the Fraser for food. Today this land, covering 1,846 acres, is owned by the federal government, the Vancouver Port Authority, the City of Richmond and private third parties. Evidence of Cowichan’s seasonal or year-round use goes back to at least 1824 and into the early 20th century. In 1853, Governor James Douglas promised the Cowichan to treat them fairly and set aside the lands for a reserve in 1859 and 1860. Yet, their lands were sold to settlers without the Cowichan’s knowledge. The first illegal purchase was by Richard Moody, the BC colony’s first Chief Commissioner of Lands and Works, who was responsible for ensuring that Indian reserves were created at sites of Indian settlements. The court concluded that therefore, Canada and Richmond’s fee simple titles and interests in the Cowichan Title Lands are “defective and invalid.”
The BC Supreme Court judge ruled Quw’utsun Nation had fishing rights in the Fraser River’s south arm and Aboriginal title to between 300 and 324 hectares of land on Lulu Island. The ruling found that Canada had breached its duty of care by restricting the Cowichan’s rights. The Court emphasized that recognizing their rights is not sufficient and that the Government of BC must continue to protect and accommodate these rights in ongoing practice.
First Peoples Law says “The Cowichan Tribes decision is unequivocal. The only lands which the Cowichan sought to be returned are the lands which are held in fee simple by Richmond, Canada and the Port Authority. The Court held those titles are legally invalid not because Aboriginal title automatically cancels out the interests of private landowners, but because they were derived from unlawful Crown grants which unjustifiably infringed Cowichan Aboriginal title.”
The court case is being appealed by multiple parties including The Province of British Columbia, the City of Richmond, the Musqueam Indian Band and Tsawwassen First Nation.
The Backlash
Fear is the most powerful tool in a politician’s arsenal. It turns neighbours and communities against each other and distracts from the real perpetrators — governments that ignore Indigenous rights. The irony is if Indigenous land rights were respected in the first place, there would be no reason to be fearful about losing property “rights.” Shana Thomas, chief of Lyackson First Nation, one of the First Nations represented by Cowichan, has said that the decision has provoked public abuse and harassment.
Indigenous people rightly resent the narratives put forward that Indigenous peoples are “taking” something, when they want to correct historic injustices and affirm that their lands were never ceded. As socialists, we reject these harmful narratives and the political leaders that lean into fear and play on the fear of those who endorse them.
Long before land titles, courts, or the ideas of “property,” Indigenous nations governed territories through relationships of community, not ownership rights. Under capitalism, fee simple private property ownership gives owners control over the land and the structures on it. In today’s world, private property and the practices of rent and property development provide one of the most powerful tools for wealth accumulation. A socialist society would replace private property rights with use rights and the responsibility to care for and protect land.
