On (really) being here to stay

By now we've all read reams of commentary about the Cowichan decision and its potential/possible/actual ramifications for private property. The Quw’utsun (Cowichan) Nation has itself clearly expressed its intentions regarding respecting fee simple ownership at Tl’uqtinus. Experienced commentators have explained how Aboriginal Title, like Crown Title, can underlie and support the continued right of home and business owners to hold, enjoy and rely upon their private titles (even titles that were dodgily acquired in the colonial period).

Others, with equal conviction, have told us that this is a legal impossibility: that Aboriginal Title, being a right “to occupy, use, and derive benefits from land”, can never co-exist with or protect the “indefeasible” nature of fee simple. And that, therefore, the Cowichan decision must be overturned lest the certainty upon which the province’s economy and landowners’ prosperity are built is undermined.

This conflict, clearly, is not so simple and is not likely to be resolved by even the Nation’s most generous attempts to soothe rattled mortgage-holders or corporate lessors. While I won’t attempt to get into the pathologies of this resistance, this controversy speaks to me of the limits of Canadian law trying to square what is an essentially legally pluralistic circle. Yes, the courts have work to do in clarifying the scope of Aboriginal Title (a Canadian legal concept) in the context of fee simple ownership (another Canadian legal concept). But pitting one against the other in a zero-sum battle forgets and drowns out the legal authority and legal capacity of the Quw’utsun – through their own snuw’uy’ulh (law/teachings) – to responsibly reestablish what it means to live lawfully at Tl’uqtinus. The Nation, through its conciliatory actions, has already extended a hand to those whom it recognizes have legitimate interests and concerns on these lands. It, like many other Nations, has proven that it is able and willing to work with diverse interests, so long as these understand that their interests are interwoven with Quw’utsun jurisdiction (just like all of us are so used to doing when it comes to Crown jurisdiction). But an invitation for us to live together in this way seems one that many are unwilling to accept.

The site of the former Tl'uqtinus village. Photo courtesy Brian Thom