'Cloud' of tension between Aboriginal title and private property ownership lands in B.C.

Decades ago one of B.C.'s top judges described the tension between the concept of Aboriginal title and the reality of private property ownership in British Columbia as a "cloud."

Once on the "far horizon," then-B.C. Appeal Court Justice Mary Southin said legal questions about the status of title on properties ranging from ranches to houses to Vancouver office towers had grown from the size of "a child's hand" to "lower over the whole of the Province."

Last week, just as Southin predicted it eventually would, the "cloud" touched down in Richmond.

A townhall full of homeowners who just learned they may have to share land title with the Quw'utsun (Cowichan) Nation gathered to hear the city's mayor and lawyers explain the implications of a court decision very few have read, but on which nearly everyone has an opinion.

"The bottom line ... is that Aboriginal title cannot co-exist with fee simple ownership [the legal name for private property title]," Richmond city solicitor Tony Capuccinello Iraci told the crowd at one point.

Except that it can and does, according to Victoria B.C. Supreme Court Justice Barbara Young, who awarded the Quw'utsun Aboriginal title this summer to between 300 and 325 hectares of land — including around 150 pieces of private property — just east of the Massey tunnel.

Young's decision may go further than any other previous court rulings in addressing the seeming contradiction Southin identified all those years ago, but it's still grounded in the kind of ambiguity that thrives in a courtroom, but falls flat in a packed room full of mortgage payers.

"When you've got court decisions — typically ones that deal with this degree of complexity and use all these arcane terms and are 400 pages long or whatever — unless the decision is really definitive, what matters is not the decision, but then how it's interpreted," says Andrew Petter, a lawyer and former provincial NDP minister of Aboriginal affairs.

Petter is not a fan of how the province or the City of Richmond have handled the fallout from Young's ruling — in which he sees a call for measured negotiation and reconciliation between the Quw'utsun and the Crown, not hyperbole.

"The government didn't help here," Petter told CBC News.

"The government basically decided to play tough guy and by doing so, suggested that the judgment was a threat to private property."

The province and the City of Richmond are both appealing Young's decision, as are the other parties to the ruling. In the meantime, they have announced plans to ask for a stay of proceedings — hoping to freeze the ruling Young had already suspended for 18 months.

In response, the Quw'utsun are also challenging the result, looking to win title to all 750 hectares — 1,846 acres — claimed at the launch of the lawsuit in 2014 as the site of a traditional village pre-dating the establishment of both British Columbia and Canada.

Capuccinello Iraci told the crowd the decision undermines the entirety of B.C.'s land title system, throwing the rights to millions of properties into question and calling on affected homeowners to share stories about the impacts of the decision to buttress the city's legal case.