Court dismisses intervention in Cowichan Tribes title litigation

Montrose sought to rely on the Wolastoqey decision from New Brunswick, which found the Court lacked jurisdiction to make a declaration of Aboriginal title over fee simple lands in the absence of the private landowners.

In her decision on the application, Justice Young does not engage with the Wolastoqey decision directly other than to note it came out after her reasons were issued. She concludes the application improperly attempts to relitigate the Cowichan Tribes 2017 decision that formal notice to private landowners was not required as well as the Court’s determination at trial that it has jurisdiction to make a declaration of Aboriginal title in the absence of private landowners (para 83).

Justice Young points out that BC and Richmond had already put forward extensive arguments at trial that the Court could not make a declaration over privately owned land in the absence of the private landowners and that Aboriginal title and fee simple ownership could not coexist (paras 85-87). The Court had considered and rejected those arguments. Re-litigation at this stage in the process would offend all the principles of fairness set out by the Supreme Court of Canada and constitutes an abuse of process (paras 97-101). Allowing the application could also open the floodgates and incentivize third parties to take a “wait-and-see” approach to joining litigation (para 99). Montrose did not have formal notice but had knowledge of the proceedings and chose not to apply sooner. It is open for Montrose to seek to participate in the appeal proceedings.

It is now up to the BC Court of Appeal to consider what to make of Wolastoqey and whether or not legal errors were made in the Cowichan Tribes decision with respect to the intersection of fee simple and Aboriginal title interests.

Cowichan Tribes v. Canada (Attorney General), 2026 BCSC 1213