Via email:mcu@justice.gc.ca
Dear Attorney General of Canada and Minister of Justice,
Re: Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490
I write with regard to the recent decision of the Supreme Court of British Columbia in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, in which your office in your capacity as Attorney General of Canada was a defendant in a claim brought by the Cowichan Tribes, along with your co-defendants His Majesty the King in right of the Province of British Columbia, the City of Richmond, the Vancouver Fraser Port Authority, the Musqueam Indian Band and the Tsawwassen First Nation.
The court’s judgment, as you will undoubtedly know, has implications which are potentially significant but, on the face of the judgment, unclear regarding the potential co-existence of Aboriginal title and private ownership of land in Canada. On one hand, the judgment suggests that Aboriginal title enjoys priority over private ownership, and that reconciliation of Aboriginal title with private ownership is appropriately considered through the established Sparrow framework. On the other hand, the judge declined to make a specific declaration about privately owned land, while making declarations under publicly owned land held in fee simple. The path to reconciling these two positions is not obvious.
Premier Eby has indicated that this judgment will be appealed. Given the significant uncertainty that this judgment has for private land ownership in Canada, and particularly in British Columbia, however, I believe that the question of the joint existence of Aboriginal title and private ownership in respect of the same land parcel, both as to whether it is possible and as to the implications that follow for the holders of each form of title, raises an important question of law which the Governor in Council should refer as soon as possible to the Supreme Court of Canada under section 53(2) of the Supreme Court Act, R.S.C. 1985, c. S-26 for that Court’s hearing and consideration.
This is a matter of significant national concern, with particular resonance in British Columbia. The province’s land ownership system now operates under uncertainty, and the already difficult investment climate will be further destabilized at a time when the federal government has emphasized the importance of moving ahead with major resource projects. I therefore urge you to raise with your cabinet colleagues the desirability to move a reference question forward to the Supreme Court at your earliest opportunity.
Yours truly,
John Rustad
Leader of the Conservative Official Opposition MLA, Nechako Lakes
cc: Premier David Eby
Honourable Nikki Sharma, Attorney General of BC