Aboriginal Title, Private Property, and "The Academic Literature"
Part 4 in a Series on Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490
The Cowichan Tribes Aboriginal title decision, on which I am gradually putting out a series of posts, continues to draw attention and has already been described by some as probably the most significant case of the year from a Canadian court. Madam Justice Young’s decision that Aboriginal title can, in at least some circumstances, oust fee simple (private property) interests in land has wide-ranging implications (for more, see Part 1 of this series.)
Today, I’m going to delve a bit into how some of the legal analysis in this judgment is more limited than it will be on appeal.
The trial judge had to grapple with fact-finding from 500+ trial days, with vast amounts of evidentiary material. Appellate courts, which deal with questions of law and generally defer to trial judges’ factual determinations, will be able to focus on the law.
Some parts of the legal analysis in the trial decision show clear room for discussion of more material. One example that jumped out at me was in para 2192 where Justice Young starts off with what she considers that “The academic literature” has to say on the intersection of Aboriginal title and private property law.
She uses that term as if the academic literature all said one thing.
It does not.
Even though the range of academic opinion in Canada is often more limited than it could be and should be due to various pressures within the university context, there have been other views apart from those she cites.
Justice Young cites an article by John Borrows on Aboriginal title and private property. Borrows is a very eminent scholar, previously at the University of Victoria and now in an important chair at the University of Toronto, and well worth reading. However, Justice Young omits another prominent article on essentially the same topics by Malcolm Lavoie, a professor at the University of Alberta currently on secondment to be Alberta’s Deputy Minister of Justice. Lavoie’s article offers specific alternatives to Borrows’s arguments in the piece that Justice Young does cite, and Lavoie’s piece thus also warranted attention.
Beyond the example of another significant Canadian article right on point, it’s also worth noting that other jurisdictions have dealt with issues of title claims in urban areas, notably Australia. For example, a Noongar claim to Native title in the city of Perth in Western Australia gave rise to significant discussion there over a number of years. Now, it is important to note various contextual differences, including that the concept of Native title in Australia is not the same as the concept of Aboriginal title in Canada (Australian Native title is not necessarily exclusive ownership). Nonetheless, there would be further scholarship that is related to the questions at issue generally.
As a result, to speak of “The academic literature” (para 2192) in the way that Justice Young did is a misnomer and an error. Justice Young was more than occupied with all of the fact-finding necessary after 500 trial days. Appellate courts will need to delve deeper into a wider range of pertinent binding and persuasive authorities and pertinent legal scholarship.