Rivers: That’s Not Reconciliation

By Ray Rivers

March 14th, 2026

BURLINGTON, ON

OPINION

Almost 150 countries voted to adopt in 2007 the UN Declaration of the Rights of Indigenous People.  Canada was one of four nations which objected but nine years later enshrined the Declaration into Canadian law.  And from the perspective of Canada’s first nations that became the tipping point for resolving land claims.

The Supreme Court of Canada had opened the country to indigenous land claims back in 1973, and one of the first being the multi-party agreement on the James Bay hydro project in Quebec.   But in keeping with Canada’s reconciliation policy close to 2000 land claims have been filed with the federal government.  In the case of British Columbia, something like 95% of the land mass is subject to various land claims.

The Cowichan tribe of the Coast Salish Nation have a deep culture that has been retained – as Indigenous people they want their land rights respected.

Typically the feds settle these claims through agreements, extinguishing the claim by giving land and/or money to the claim holder.  But some claims have also ended up in court.  In August of 2025 a landmark decision in one of Canada’s longest trials the BC Supreme Court awarded the Cowichan tribe of the Coast Salish nation title over a part of Lulu Island in Richmond BC.  That title includes land occupied by the governments and over a hundred private homes.

This is the first time an indigenous land claim has been awarded, which included title over privately held (fee simple) property.  The homeowners, like most other Canadian homeowners, believing they had exclusive ownership rights, were stunned by the decision.  The judge didn’t rule on whether the private property rights were now extinguished, but rather suggested the governments should sort this out.

Cowichan leaders are promising they won’t force out the homeowners who now apparently will share title to their homes, but that does little to relieve their anxiety.   To make matters worse for the homeowners, despite this being one of the longest trials in Canadian history, the court denied the governments’ requests to formally notify the homeowners and allow them to participate.

Needless to say the homeowners are confused and anxious about their future and unsure if this decision will make it more difficult or even impossible to sell their homes or even get a mortgage.  And they are rightfully indignant that they had been excluded from this trial which was also very much about their rights.  The court decision is already affecting them emotionally and threatens to hit them economically as well.

The decision is being appealed by the governments and no doubt by the homeowners, but also by other Coast Salish bands claiming they too had an historical presence on Lulu Island.

Cowichan leaders are promising they won’t force out the homeowners who now apparently will share title to their homes, but that does little to relieve their anxiety. 

It was 1853 when BC governor James Douglas promised the Cowichan, who represent a branch of the Coast Salish people, that the Crown would treat them with justice, humanity, and respect, and protect their lands if they remained peaceful.  He indicated their village sites would be set aside as reserves.  However, the government subsequently sold this land to settlers without their consent.  Will the Cowichan and their future generations respect their promise regarding existing private homes?

This was a court decision and courts are structured for confrontation, not necessarily reconciliation.  Appeal of this decision will ultimately and unfortunately end up in the Canadian Supreme Court since the Cowichan have now been given new rights at the expense of others.

While we were all promised that reconciliation would bring people together and further reduce racism and conflict, this decision promises to do just the opposite.  Given the reaction to this ruling, it is anything but reconciling and that begs the bigger question – if it’s not broken should we be trying to fix it.

Below is an excerpt from the Fraser Institute’s published summary on the substance of the trial.   I had not attended the trial so cannot warrant its complete accuracy.

“The judge declared that three square miles in the heart of Richmond is now Aboriginal title. Critically, the Cowichan did not sue the fee simple title owners (both businesses and residences). Therefore, she did not make a specific order declaring those titles were invalid. However, she declared Aboriginal title was superior to fee simple titles.

 The basis for finding Aboriginal title was her determination that, as of 1846 (when the British Crown entered into the Oregon Treaty with the United States, and thereby declared sovereignty over what became B.C.), a band of a little over 1,000 Aboriginal peoples, now known as the Cowichan, used the area each summer for fishing. It was not their permanent home. They lived on Vancouver Island. They occupied the Richmond lands for only a few months each summer. But the judge determined that that was sufficient to meet the test of “exclusive occupation” required to establish Aboriginal title. This is the test laid down by the Supreme Court of Canada.

The Colony of B.C. started issuing fee simple titles in the Richmond area in the 1860s. The Cowichan that had fished during the summer had left the area by about 1870. There has been no connection between them and the area since then. But various courts have ruled there is no need for “continuous occupation.” So long as the judge can find on the evidence that the band had exclusive occupation in 1846, Aboriginal title can be declared. That is what the judge did.”

Ray Rivers, a Gazette Contributing Editor, writes regularly applying his more than 25 years as a federal bureaucrat to his thinking.  Rivers was once a candidate for provincial office in Burlington.  He was the founder of the Burlington citizen committee on sustainability at a time when climate warming was a hotly debated subject.   Ray has a post graduate degree in economics that he earned at the University of Ottawa.  Tweet @rayzrivers.

Background links

UN Declaration –       Land Claims –       Federal Claims Program –       Musqueam Appeal –       Coast Salish –    Fraser Institute –