Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Indigenous Title vs. Private Property: The Cowichan Tribes Decision Explained
The foundation of property ownership in British Columbia faces a potential earthquake with the landmark Cowichan Tribes decision. After what may be Canada's longest trial—spanning over 500 days—the judge delivered an 800-page ruling that could fundamentally alter who truly owns land throughout the province.
Michael Mulligan breaks down this complex legal battle by explaining the collision between two powerful forces: BC's Torrens property system and Aboriginal title claims under Section 35 of the Constitution. The Torrens system provides what legal experts call "indefeasible title"—conclusive proof of ownership registered with the government that enables secure property transactions and mortgage lending. But the judge has ruled that Aboriginal title is "a prior and senior right to land" that can exist simultaneously with registered property ownership, potentially superseding private property rights despite the Torrens system's guarantees.
The implications are profound. If Aboriginal title claims—which cover virtually the entire province, often with overlapping claims from multiple Indigenous groups—can override registered property ownership, what happens to homeowners who've worked their entire lives to pay for their properties? The economic consequences could be equally severe, as mortgage lending depends on the certainty of ownership. As Mulligan observes, the legal system ultimately depends on public acceptance: "If I tell you that the house you worked for and paid for is no longer yours, I don't know that that's generally going to be accepted." With BC already announcing its intention to appeal, this case will likely progress through higher courts, where judges must balance constitutional obligations to Indigenous peoples with maintaining a functional property system. Listen now to understand what's at stake for every property owner in British Columbia.
Follow this link for a transcript of the show and links to the cases discsused.
It's time for Legally Speaking. Hey Michael, are you with us?
Michael Mulligan:I certainly am. I'm direct from Pompeii, italy, and it looks like we've managed to get a good connection going through the miracle of the cell phone network.
Adam Stirling:That's a solid connection. Anyway, interesting story on our agenda today because I know that you and I have talked in the past about various complicated, lengthy legal issues involving Indigenous rights and title, and the Cowichan Tribes issue is in the news, as you well know, the province is already announcing they're going to appeal. Can you help us understand exactly what's happening here?
Michael Mulligan:and how it relates to the idea of private property. Sure Well, first of all it's a huge decision. I mean I think the case may have set a Canadian record for the longest trial it was some 500 plus days of trial and this enormous 800 page decision that came out of that. And the case involved a claim for a whole bunch of property over in Richmond and interestingly, as with many of these things, there's a conflict in part between different Indigenous groups claiming the same territory. So that's a broad background to it.
Michael Mulligan:But part of what's in this case has caused some very serious concern about what implications it could have more broadly in terms of property ownership in British Columbia. And to appreciate all that, it has to start with an explanation for why it is you own property in British Columbia, right? Why do you own your house, if you own a house? And the answer to that in BC and most Canadian provinces not all but most is that we have a version of what's called the Torrens system, and the Torrens system is a government registry which lists who owns real property. And the core concept with the Torrens system is it grants what's referred to as indefeasible title to property. It's conclusive ownership of the property, and what's different about that is that in places where you don't have that sort of a system, your claim to ownership of property would depend on the claim of ownership the last person had and the person before them and the person before them right. And so you would need to go back and look and say, look, can I purchase this property from you? You would need to be assured that that person has legal title to it. And how did they get that? And so you'd have to go back through the chain to try and figure it out. The touring system does away with that completely, and it says that if you're listed as the owner of property in British Columbia or other places that have that, that is conclusive proof. You own the property.
Michael Mulligan:Now that matters both in terms of the complications of transferring property, but it also has real implications for things like let's imagine you want to get a mortgage to purchase property or build a home or do something. The person lending money on the strength of the mortgage needs to be assured that you in fact own the property, so that they could, if you didn't pay them back, collect right. And if that's uncertain, you're also not only would you have trouble potentially selling something, but you may have trouble borrowing against it, or your cost of borrowing will be higher because the lender will be uncertain about whether you know. Can you really be sure you own this thing? And so that's the Turing system. And so this is how it interferes with this Cowichan decision. We have in Canada since 1982, provision section 35 of the Constitution Act, and it says this the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. There's some more detail below that, but that's really what it says. What does that mean? Right?
Adam Stirling:Yeah.
Michael Mulligan:It's really very ambiguous. And so since 1982, courts have been going on and trying to interpret well, what all does that mean? On in trying to interpret, well, what all does that mean? And I should say, as somebody who works in the sausage factory, at the courthouse, that sort of thing goes on all the time in terms of judges trying to, you know, specify what the law is. And there are some areas, for example in civil law, where much of the law is that it's sort of the common law built up over hundreds of years with things like well, what do you need to have a contract and what do you do in this particular circumstance? Or what are the elements of the court? All these things have been developed slowly over time and that's how the common law works. And one of the, I should say, sort of beauties of the law is that generally, the law conforms with what most reasonable people who would think carefully about an issue would think yeah, that's probably how that should work out. Right, that seems like a fair thing, right, it's sort of how contract law works. Or, you know, tort law, in terms of putting somebody right if you cause them some harm or damage. It all sort of generally conforms with. Yeah, that seems like a fair outcome and how people expect their lives to be ordered.
Michael Mulligan:Now this particular case has raised real concerns. Now that you know that background, the Torrance system, why you own your property and that provision, and here's the heart of it, the judge in this case says I agree that Aboriginal title is a prior and senior right to land. It is not an estate granted by the crown but rooted in prior occupation. And then it goes on reversed. The proper question is what remains a fee? Simple title after aboriginal title is recognized in the same lands. And then it goes on and essentially what the judge finds is the fact that the person, a person, may be a registered owner of land and the fact that the touring system says that's conclusive proof you own it. You can't go behind that. The judge found that no Aboriginal title can still exist for that same land.
Michael Mulligan:Now one of the great uncertainties about that is what is Aboriginal title? That hasn't been clearly defined. Many of the concepts here have just been judicially invented since 1982, because the provision we're dealing with says the existing Aboriginal treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. So all of the law that's developed since then. All this concept of Aboriginal title, concepts of the honour of the crown, all these things which have been found in the law since then, are all judge-created, all of it.
Michael Mulligan:And one of the worries here is that this outcome and each judge when they get one of these cases, is looking at the prior decisions and trying to come up with a rational decision that fits within the previous decisions. And it's all fine as far as all that goes. That's what they're, of course, trying to do. But the challenge here is that the outcome of that accretion of sort of principles and ideas and things that have been built up since 1982, if this case remains the law, what that may effectively mean is you don't own your house anymore because you've got Aboriginal claims that virtually cover the entire province several times over.
Michael Mulligan:And either Aboriginal title means nothing right. If it means nothing, the Aboriginal groups couldn't use the land or do anything with it. Probably that's not what's intended. Eventually it means nothingness. So if it means something and you've got this conclusion that it takes priority over the simple ownership of land, it doesn't matter that you bought it for value, that the chain of people that have owned it for a very long time it could simply be rendered meaningless, and that's the natural conclusion of this decision. And while the grievance of this particular case we're careful not to try to actually give this area claim includes things like farms and houses and so on. And so they were.
Michael Mulligan:Because the conclusion of that would be, I think, probably completely contrary to what most people would think of as a sort of the expected outcome of this sort of dispute. Right and unlike you know many areas where you say, yeah, that's the answer to how a contract worked, that's sort of what accord with how you think that would work if you were buying yourself a car or doing something. Right. If the outcome of all of this, the judicial interpretation of that terminology or that general phraseology in Section 35, results in a conclusion that that house you worked your whole life to pay for is not yours, somebody else is free to come in and set up in the backyard or move into your living room. If that's the outcome and that seems to be what the judge has found here by putting together these sort of principles and these other cases since 1982.
Michael Mulligan:That is a very problematic outcome, because not only would it undermine sort of the economic functioning of the province as a whole, because, first of all, people wouldn't be able to reliably own property, people that have worked and paid for things would no longer get the benefit of them. And furthermore, going forward, if you are a lender, are you going to lend somebody money on the strength of title, which could be meaningless, because three or four or more Indigenous groups are claiming that they have title to that land? Whatever that means, probably not. And so it is potentially very broad-reaching implications, potentially seriously destabilizing implications, and it is exactly that. It's just sort of the next accretion of sort of the well, these are the principles that Bud Springford attended this case.
Michael Mulligan:You put those together. It must mean this, it can't mean that, it can't mean that, and then you wind up with this result which, unfortunately, in my view, is not one of those results that would generally accord with what people would think. Yeah, that's about how that should work. It's a result, again, working in a sausage factory is that the justice system works because people generally, you know, agree with the outcomes. Right, in a broad sense. Right, you might not agree with a particular case, but you know, okay, fair enough, that's how that works.
Michael Mulligan:This is the sort of decision which, if it was not reversed on appeal and it was carried to its logical conclusion would not be that, and that's very troublesome from the perspective of the rule of law and respect for judicial decisions, because I would imagine that this would not be something that's likely to be generally accepted by the population.
Michael Mulligan:If I tell you that that house you worked for and paid for is no longer yours, I don't know that that's generally going to be accepted, and so that's really the heart of it.
Michael Mulligan:That's what the torrent system is, and the judge in this case has found that, despite the fact that that legislation says that's yours and no looking behind that, has found that, oh, there's a way to look behind that.
Michael Mulligan:Has found that, oh, there's a way to look behind that. And we'll have to wait and see, of course, what happens with the appeal to the Court of Appeal and eventually probably to the Supreme Court of Canada. But everyone involved there, I think, should also just be aware that you know, even if something might make logical sense or fit together with other previous decisions of the court, if the eventual result is a result that would not be broadly accepted by the public, it's not going to work Because at the end of the day, we're just people up there in robes and ties and stuff. It's not going to work unless you have a decision which is going to be broadly accepted. I don't know that this outcome is likely to be that, so that's why there's been concern about it. That's what's happened in this case, and we'll have to wait and see what happens, of course, with the one or two levels of appeal, whether this gets reversed in some fashion or whether they, of course, decide to proceed in this way. So that's what's going on in that decision.
Adam Stirling:All right. Couch and Tribes decision under appeal according to the province of British Columbia. Quick break. Legally Speaking continues. After this, Legally Speaking continues. Michael Mulligan from Mulligan Defense Lawyers. We've got just over four minutes left in today's segment, Michael. How shall we spend them?
Michael Mulligan:Sure, I think there's another case. People may have some interest in rising out of a door dasher and how that fits in with arbitration, and the case involved a fellow who was a dasher not dashing, but a dasher which you can sign up for on an app and then you do deliveries and get paid for that work. And this fellow had signed up in 2022 to do that and had done it for a couple of years and then, for reasons unknown, or at least not specified in his decision, doordash decided to cancel his account, so he could no longer be a DoorDasher, and that prompted the fellow to sue DoorDash for a variety of things, including, for some reason, he was asking for 12,960 hours of work at $50 an hour, for he wanted $648,000, along with plus wear and tear in his car, various other things Wow. And he specified that he was suing for as a result of breaches of the charter rules against discrimination, hate and defamation. So, anyways, that's what he was suing for as a result of breaches of the charter rules against discrimination, hate and defamation. So, anyways, that's what he was suing for.
Michael Mulligan:But the particular decision dealt with the applicability of an arbitration provision and the way that worked. In this case, as in many cases where you'd agree to use software, an app or something, you have to scroll through and say I agree, I agree, I agree to a bunch of things if you wish to be able to continue to sign up to do anything. And this particular agreement had in it an arbitration clause which said that both parties agreed to, if they had any disputes, settle it by way of arbitration rather than going to court. One of the interesting things here in that clause and it probably has to do with DoorDash being sensitive to their position that people who do that work are not employees. They're independent contractors and free to negotiate things. They actually say in here you can opt out of the arbitration provision. There's a way you can do that if you want to write in. As he wished to opt out of it. This fellow hadn't done that, and so DoorDash applied to have the court claim struck out on the basis of how the Arbitration Act works. And that act essentially says that if you establish some basic things, like there was an arbitration agreement, one of the parties has started an action, the other party hasn't taken steps in the action, like you can't get into day five of the trial, realize it's not going well and then say you't taken steps in the action, like you can't get into day five of the trial, realize it's not going well and then say you wish to go to arbitration. Right, you haven't done anything, you can apply for the court action to be stayed and discontinued. So the matter would be sent to arbitration. And that's exactly what happened here.
Michael Mulligan:The digital treasury, yeah, appears to be an arbitration agreement. It wasn't opted and opted out of it. They both appear to be parties to it. Doordash hasn't taken any steps in the litigation and so they're applying to have it struck out. That is to say, the court claim and that was the outcome.
Michael Mulligan:And so people should be aware of this when they're scrolling through those contract provisions, clicking yes, yes, yes. In some cases you may actually have a remedy at the time to say I wish to be out of this, but if you don't, you may wind up agreeing to all sorts of things that could have implications for you later. Remember Seinfeld used to joke that people scrolled. You could insert the entire text of Mein Kampf into the agreement. The person would start tapping I agree, I agree, I agree, and that's probably not too far from the truth. So that's something to be aware of how that arbitration act works in British Columbia. Be careful about what you're clicking and signing on, because the result could be you won't be able to advance your charter claim for 12,000 hours of work for DoorDash. If you've clicked, I accept.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking, second half of our second hour every Thursday. Thank you so much. Pleasure as always. Thanks so much. It's always great to be here.