Cowichan Tribes to propose solution protecting private property in January: lawyer

VICTORIA – The lawyer for the Cowichan Tribes said they will make a proposal in January that protects private property rights in the landmark Aboriginal title case that the B.C. Conservatives have said calls into question who controls British Columbia.

Lawyer David Rosenberg said that if it has “the right attitude,” the incoming Conservative government will find it easier to resolve the Cowichan case than to repeal the Declaration on the Rights of Indigenous Peoples Act, known as DRIPA.

The 2025 Cowichan ruling on a portion of Crown, city and private land in Richmond, B.C., found that Aboriginal title is a “senior interest” compared with fee-simple title, and sections of B.C.’s Land Title Act that establish fee-simple title as “indefeasible” do not apply to Aboriginal title.

It has triggered concerns about the impact on private property rights and values, but Rosenberg said the tribes will go to court in the new year with a solution to respect and protect private property and its value, as well as Cowichan Aboriginal title.

“That is what negotiations are supposed to be leading to,” he said.

He said the case has nothing to do with the repeal of DRIPA, which premier-designate Lorne Doerkson has said is his top priority after Saturday’s election victory.

Rosenberg said Doerkson’s election could be seen as a fresh start in resolving the Cowichan case. 

“That a new government could come to the issue with a positive attitude, and show some leadership, and take the high road, and say, ‘We’re going to recognize Aboriginal title and we’re going to protect property interests,'” he said.

While Rosenberg said it could be easier to resolve the Cowichan case, former B.C. Conservative leader John Rustad said DRIPA can be repealed quickly, while the Cowichan Tribes case could drag on for years.

Rustad, who didn’t seek re-election, said last year that “Indigenous rights and private property cannot coexist,” and called on the Supreme Court of Canada to resolve the conflict as soon as possible.

He said in an interview on Monday that the case cannot be allowed to drag on because of the uncertainty it has created around private property rights.

Rustad said the incoming government must argue in its appeal for the extinguishment of Aboriginal title, something the previous government did not do in the original case. 

“Private property is the foundation of society,” he said. “If you are going to take private property rights, which the court is now in the process of doing, you completely undermine society,” he said.

Extinguishment, however, does not rule out some agreement that would compensate First Nations, said Rustad, who was the Aboriginal relations minister under the former B.C. Liberal government. 

But Rosenberg said neither British Columbia nor the federal government could extinguish existing Aboriginal title, unless the Constitution were amended, and he warned against conflating DRIPA with the Cowichan Tribes case. He added that the City of Richmond had argued for extinguishment, and was unsuccessful.

“I don’t believe the repeal of DRIPA would in substance affect what the court ordered,” he said, referring to the ruling that British Columbia must negotiate in good faith how to reconcile fee-simple interests with Cowichan Aboriginal title.

Rosenberg said the tribes’ proposal on private property will be filed when the court hears requests for the Cowichan judgment to be stayed pending appeal.

The Conservatives’ resounding election win, in which they secured a two-thirds majority, has raised concern among First Nations leaders.

The First Nations Leadership Council said Monday that B.C. is at a crossroads with the incoming government that could result in either a “battleground” or reconciliation.

Doerkson said at a postelection news conference on Sunday that he is “completely committed to working with First Nations” but would stick with his election promise to repeal DRIPA.

He said the declaration act brought in by the New Democrat government had caused more problems.

“So, I am committed with working on a great path forward of respect, partnership, friendship and conversation.”

Rustad said the situation facing the new government is how to reconcile private property rights with outstanding Indigenous rights. 

“The Indigenous question is the elephant in the room,” Rustad said. “You cannot get your economy going without finding a path forward, working with First Nations, which means you can’t do all these other things that you want to do.”

The leadership council, made up of executives from three main First Nations groups in B.C., said in a statement that it was ready to work with the government to advance reconciliation and uphold rights and title. 

Grand Chief Stewart Phillip of the Union of British Columbia Indian Chiefs said outgoing Premier David Eby’s loss on Saturday was “hugely disappointing.”

“We are at a historical crossroads: Battleground B.C. or reconciliation through the principles and road map of the Declaration Act,” he said.

B.C. Assembly of First Nations Regional Chief Terry Teegee said in the statement that some provincial politicians in the recent past have campaigned on anti-Indigenous racism.

“We call on premier-designate Doerksen to uphold a zero-tolerance policy for racism, discrimination or hatred in his caucus, including holding his members accountable for some of the reprehensible statements made during the election,” he said.

First Nations Summit Chief Shana Thomas said no economic projects in the province could happen without involvement of First Nations.

A statement from the office of the clerk of the legislative assembly said swearing-in ceremonies can’t take place until the election results are certified and provided by the chief electoral officer, which is expected Nov. 18.

This report by The Canadian Press was first published Oct. 26, 2026.