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Vaughn Palmer: Lawyer's opinion may not sway Aboriginal title case, but it hurts B.C. landowners

Comment made after winning Cowichan Tribes case is cited by landowner in court, but judge says it was not an issue before her

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VICTORIA — British Columbians were still reacting to the shock of the Cowichan Tribes’ Aboriginal title decision last August when the legal counsel for the winning side made a telling comment about the implications for private property owners.

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There were about 150 owners of private property in the part of Richmond that B.C. Supreme Court designated as Aboriginal title for the Cowichan Tribes.

Vaughn Palmer: Lawyer's opinion may not sway Aboriginal title case, but it hurts B.C. landowners Back to video

Lawyer David Rosenberg, lead counsel for the nation, said, “I don’t think private property holder’s interests will be directly affected.”

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In the event of a sale, “I fully anticipate — and this is me speaking again — that the seller or vendor will get what they are bargaining for, and the purchaser would also get what they are bargaining for,” Rosenberg told Jas Johal on CKNW.

However, he added an important caveat regarding the transaction: “It would be with the consent of the Cowichan Nation and it would be with some accommodation from the Crown to the Cowichan Nation.”

So the would-be buyer and the would-be seller would both need the consent of the Cowichan Nation before proceeding. And the government would probably have to accommodate the nation, by, say, paying compensation for the market value of the property.

Those presumed consequences are hard to reconcile with Rosenberg’s suggestion that private property holders would not be affected by the court’s finding of Aboriginal title.

Rosenberg framed his comments as his own opinion — “this is me speaking again.”

Yet, it was the stated opinion of the winning counsel in the case, delivered fresh on Aug. 11, just four days after the decision came down.

The opinion carried a lot of weight with landowners, not least Montrose Properties, private holder of some 1.2 square kilometres of land in the designated area.

Montrose included Rosenberg’s comments as part of the legal submissions in its effort to reopen the Cowichan case on grounds that it was excluded from the proceedings and not advised that its interests were at stake.

The application to reopen is being heard by B.C. Supreme Court Justice Barbara Young, who presided over the five-year trial and wrote the 900-page decision that recognized Aboriginal title in favour of Cowichan.

Cowichan is resisting Montrose’s effort. In a preliminary action last month, Rosenberg himself asked the court to order the disclosure of a long list of documents related to regulatory proceedings involving the company.

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The First Nation believes the documents are “likely to illuminate the extent of the notice Montrose had about these proceedings” — meaning the lengthy court case — “and why Montrose did not seek to participate at an earlier stage.”

The Cowichan chiefs further argued that they were not “seeking to invalidate any privately held fee simple titles,” meaning private property. Not at this time, anyway.

Montrose pushed back. The company cited Rosenberg’s comments from last August as evidence that the declaration of Aboriginal title had already affected private landowners. It made it harder for them to sell their property by requiring consent from Cowichan and compensation from the Crown.

The argument got nowhere with Young.

“Mr. Rosenberg’s expression of his opinion about the consequences of the declaration of Aboriginal title to the media was not a position put forward by the plaintiffs in this proceeding nor any other,” the judge wrote in a judgment issued last week. “It does not constitute misuse of the court’s process.”

While rejecting all of Montrose’s arguments — there were others — Young gave Cowichan everything it asked for.

She ordered the company to produce seven categories of documents, some going back a dozen years.

“Montrose is a sophisticated entity,” wrote Young in justifying the sweeping order.

“In their demand for production, the plaintiffs have provided some dates, file names and regulatory applications where communication with the province may have occurred. This should help guide the inquiry.

“There is no basis to conclude that a limited production order would unfairly prejudice Montrose. There is a cost and burden associated with producing the documents sought, but there is a lack of evidence that some limited production would be unduly burdensome for Montrose or B.C.”

She gave the company until the end of next week to produce the documents and the province the same time to deliver any related material in its hands. Cowichan has a further seven days to file a reply to the company’s application to reopen.

Then comes a judicial management hearing to decide when the application itself will be heard.

The provincial and federal governments both filed in support of Montrose.

“The order should be granted so that Montrose can speak with its own voice regarding the consequences a declaration of Aboriginal title has had on its fee simple title and business interests,” says B.C.

“The province maintains that this court should hear from and consider the direct perspective of the private landowners affected by the declaration of Aboriginal title.”

But I will be surprised if governments or the company get far in persuading Young to reopen a landmark case that consumed five years of her life and delivered implications well into the future.

vpalmer@postmedia.com

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