ROTHENBURGER – Kamloops has its own version of the Cowichan land claim

WHAT’S BECOME KNOWN as the ‘Cowichan case’ has the City council of Richmond rattled, residents angry, and the NDP government vowing not to let it happen. Turns out Kamloops has its own ‘Cowichan case.’

The drawn-out Cowichan legal challenge, launched in 2014, involves the question of aboriginal title over lands held by the City, Province, federal Crown and private residents in 750 hectares of property in Richmond.

An 800-page B.C. Supreme Court ruling  by Justice Barbara Young in August granted the Cowichan Nation rights and title over much of the land, deciding that Crown and City titles on the land are “defective and invalid” and the granting of private titles by the government infringed on the Cowichan title.

The Cowichan Nation insists it wants the government-owned part of the lands back but has no intention of taking private property away from its owners. That’s reassuring to private property owners but it seems to me the real issue is whether fee simple property rights are now trumped by aboriginal title, given that in future such cases, other First Nations might have more ambitious intentions than the Cowichan.

The B.C. government, federal government and the City of Richmond are all appealing.

Richmond Mayor Malcolm Brodie sent a letter to 150 private property owners telling them “The Court has declared aboriginal title to your property which may compromise the status and validity of your ownership — this was mandated without any prior notice to the landowners.”

So a public debate has been raging over whether fee simple title can co-exist with aboriginal title.

It’s now become clear that the outcome may well impact private property rights in other areas of the province, including Kamloops. It is, as MLA Elenor Sturko says, “the tip of the iceberg.”

Local concern has grown swiftly since a discussion on the Mike Smyth hotline show this past Monday in which Vancouver lawyer and former provincial chief treaty negotiator Robin Junger said, “There’s another lawsuit going on in Kamloops right now where the Secwepemc Nation is claiming Aboriginal title over all the private lands. I don’t know how many private property owners know that. So this is happening all over the place. This is not just a Richmond issue.”

Well, private property owners in and around Kamloops are certainly waking up to it now. Junger was referring to a joint 2015 claim (just a year after the Cowichan Nation launched its case in Richmond) by the Skeetchestn and Tk’emlups bands asserting title over the land that would be occupied by the proposed Ajax copper and gold mine at Jacko Lake just south of Kamloops.

Though it’s making headlines today as new news (“coming to light” as some media are breathlessly reporting), it was well publicized at the time. But all the focus then was on Ajax, and the fact the city and a vast area around it were included in the claim went by virtually ignored or unnoticed.

Yet the claim went far beyond the Ajax lands to include the entire City of Kamloops, Sun Peaks and a big swath of land around them. Fee simple property included. It sought “a declaration that the Secwepemc Nation holds aboriginal title to all or part of the land subject to the Authorizations in the Kamloops region of British Columbia which is Secwepemc Traditional Territory.”

In 2017, when Nick Cundari was a student in TRU’s law school, he won a national Canadian Bar Association essay contest with an entry entitled “The Conflict between Aboriginal Title and Private Property in the Secwepemc Territory.”

In his paper, Cundari wrote, “The conflict between fee simple title and Aboriginal title has come to a head in the Secwepemc territory. Although this fight is not entirely new to the Secwepemc Nation, this claim is unique in that it attempts to claim rights over private property on an unprecedented scale.”

He pointed to two previous land claims cases brought by Tk’emlups te Secwepemc against developers. In 1989, Bill Bilton bought two fee simple lots on Schiedam Flats from Harper Ranch for $600,000 to build a golf course and residential subdivision.

The Tk’emlups band filed a claim saying the original reserve land promised to them by Governor James Douglas in 1862 should have included Schiedam Flats and Harper Ranch, and the band was entitled to the exclusive use and occupation of Scheidam Flats. It filed an interlocutory injunction restraining the developer from occupying the land until the land claim was settled.

The injunction was granted and Bilton was barred from his property for the next six years.

As Cundari explained, Bilton spent more than $500,000 in legal fees by the time the provincial government purchased the land from him for $2.2 million (which Bilton believed was below market value) and turned it over to the band, which eventually bought all of Harper Ranch and transferred the properties into the reserve.

A second case cited by Cundari involved the development of Six Mile Ranch into present-day Tobiano in 1995. At the time, Michael Grenier was leading the development plans and purchased Six Mile for Kamlands Holdings Ltd.

The Skeetchestn Band brought action against Kamlands claiming infringement of Aboriginal title rights. In 2001 the NDP government of the day wrote a $1.4 million cheque to Skeetchestn in return for the band dropping its legal action.

I’ll return to the reason these two cases are relevant to the current conundrum in a moment.

As Junger said in the Mike Smyth interview, “Yes, both Aboriginal title and fee simple give the holder the right to use, exclusive right to use the property, to occupy it, to possess it, and to get the benefits of it. How you can possibly have both exist at the same time in the same place is beyond my simple mind’s ability to comprehend.”

Despite downplaying of the significance of the Cowichan decision by its supporters, private land owners can’t be blamed for their concern. Does it interfere with their right to control and enjoy their property? Will they no longer be able to obtain mortgages, or even sell the land? What about property values?

Cundari was of the opinion the Kamloops claim might never make it to court. There’s speculation the Cowichan case could take years to resolve as the various parties attempt to litigate or negotiate their way out of it. But the recent Cowichan ruling shines a new light on it and might even prompt renewed efforts to get the Kamloops case in front of a judge.

The resolution of the Schiedam Flats and Six Mile cases point to one solution: the provincial government open its wallet to buy out the claims. But that just might bankrupt the province.

Sturko has called on the NDP government to “come clean” on how many similar land claims are going on in B.C.

Cundari proposed another idea: that affected bands be given taxation power in return for setting aside Aboriginal title rights. It would, he wrote, provide indigenous nations with “enduring financial prosperity” and end court battles.

Of course, it would either lower provincial and municipal tax revenues or boost private property taxes. It remains to be seen if such a scenario gains any traction in the current situation.

In the meantime, Kamloops City council needs to get involved. It and the Tk’emlups te Secwepemc like to boast about their close co-operative relationship. Time to put it to a true test.

Mel Rothenburger is a former regular contributor to CFJC-TV and CBC radio, publishes the ArmchairMayor.ca opinion website, and is a recipient of the Jack Webster Foundation Lifetime Achievement Award, and a Webster Foundation Commentator of the Year finalist. He has served as mayor of Kamloops, school board chair and TNRD director, and is a retired daily newspaper editor.  He can be reached at mrothenburger@armchairmayor.ca.