Cowichan Tribes v. Canada (Attorney General), 7 BCLR (7th) 1, 2025 BCSC 1490

B.M. Young J. – #

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C. INDEFEASIBLE TITLE UNDER THE LAND TITLE ACT #

The above discussion dealt with the basis for my determination that the Cowichan’s Aboriginal title was not displaced by the Crown grants of fee simple interest, as well as my determination that Cowichan Aboriginal title and fee simple titles can coexist on the Cowichan Title Lands.

In this case, the Cowichan do challenge the validity of the fee simple interests in the Claim Area that are held by Richmond and Canada. Specifically, the plaintiffs seek a declaration that the fee simple titles and interests in the Richmond Tl’uqtinus Lands and the Federal Tl’uqtinus Lands (except in respect of the YVR Fuel Projects lands) are defective and invalid, in whole or in part.

Accordingly, I turn now to Richmond’s defence that and of the LTA bar a declaration that Richmond’s fee simple titles in the Cowichan Title Lands are defective and invalid, in whole or in part (the “Richmond Fee Simple Declaration”) irrespective of the merits of the plaintiffs’ claim. Canada does not argue that the LTA bars the relief the plaintiffs seek.

1. Richmond’s position #

Richmond is the registered owner of fee simple interests and holds a Certificate of Indefeasible Title with respect to each of the lands Richmond owns in the Claim Area. With respect to Richmond’s land, I found Aboriginal title over Lots E and K.

Richmond says and of the LTA are a complete statutory defence to the Richmond Fee Simple Declaration. Regardless of the Cowichan’s Aboriginal title, Richmond is indefeasibly entitled to its land and there is an absolute bar and estoppel in this action to the extent it seeks the Richmond Fee Simple Declaration.

Richmond says is at the heart of the LTA, as it provides that a person registered in the Land Title Office as the owner of a fee simple interest in a property is indefeasibly entitled to that fee simple interest, subject only to certain narrow exceptions. Richmond relies on Heller v. The Registrar, Vancouver Land Registration District and Heller in which the Court of Appeal explained that “indefeasible” means “cannot be defeated, revoked or made void”: at 160. of the LTA compliments by precluding an action for recovery of land against a registered owner.

Accordingly, by virtue and of the LTA, Richmond is indefeasibly entitled to its registered fee simple interests in the Cowichan Title Lands. The Richmond Fee Simple Declaration cannot be made because it would dispossess Richmond of lands it currently owns.

Richmond says whether the Crown grants were made without authority is irrelevant, because of the LTA cures any defect in the original Crown grants.

Richmond also says that the Legislature was competent to “legislate away” Aboriginal title through the LTA prior to 1982. As I previously set out in my discussion of extinguishment, the Province had no such jurisdiction. I consider this argument no further.

Richmond acquired Lots E and K through municipal tax sales. Richmond argues that the historical Municipal Act, as amended, is a complete defence to the Richmond Fee Simple Declaration. Even if the plaintiffs were correct that the municipal statutes vested land in Richmond, the Claim Area was purged and disencumbered of any Aboriginal title the plaintiffs’ ancestors had through the municipal tax sales in the 1920s and 30s. The facts surrounding the tax sales are set out in Part 7 and I address the applicability of this defence in that section.

2. British Columbia’s position #

BC submits that the LTA applies to the Claim Area and the relief sought as a matter of statutory interpretation. BC says the LTA is consistent with the BC Terms of Union, the , 1867, and does not infringe Aboriginal title, or if it does, any infringement is justified.

BC says that the independent validity of the current fee simple titles is guaranteed by the LTA and those titles are therefore a limit on the content of any Aboriginal title. Additionally, the honour of the Crown should weigh in assuring the property rights of fee simple title owners flowing from a Crown grant: at para. 5.

As a matter of statutory interpretation, the LTA applies. The point of the Torrens system is to ensure the security of titles registered under it; title is validated by public registration that is independent of the interests of the prior owners. BC says the LTA must capture the broadest range of challenges to title so as to accomplish this purpose.

The LTA is valid provincial legislation. The fee simple interests derived from the Crown grants are independently valid, and their validity is also guaranteed by the LTA, regardless of any defect in the Crown grants. BC says a declaration that the plaintiffs are entitled to the Lands of Tl’uqtinus as against BC would be contrary to the LTA because a declaration that the plaintiffs are entitled to lands registered in fee simple to a third party would undermine the guarantee of indefeasibility in and contravene .

BC submits that “persons” under are any parties that might bring a challenge against a registered title in court. BC further submits in regard to that an indefeasible title is not only protected against actions for recovery of land brought by “persons”; it is protected against any entity that might bring a challenge.

The Court should not exercise its discretion to issue a remedy undercutting the title registration system. BC says that, as the LTA guarantees indefeasible title through registration, ruling it inapplicable would deprive others of their interests to which the legislation applies, and undermine the foundations of the system impermissibly, creating uncertainty and dispute.

3. Plaintiffs’ position #

The plaintiffs submit that the LTA does not apply to Aboriginal title and/or does not apply to the relief sought in this case. There is nothing in the text, context, scheme or object of the LTA, nor the intention of the Legislature, that indicates the LTA was intended to or does apply to Aboriginal title. There is no reference in the LTA to “Aboriginal title” at all.

The Court in found that Aboriginal title, held collectively sui generis, “lies beyond the British Columbia land title system and fee simple ownership”: at para. 88(a). Further, Aboriginal title is not a registrable interest under the LTA: see , leave to appeal to SCC ref’d, 20380 (1 June 1987); at paras. 63-64.

The plaintiffs say if the LTA were to apply to Aboriginal title, it would be tantamount to extinguishment, which is beyond the jurisdiction of the Legislature. Additionally, there is no clear and plain intent in the LTA to extinguish Aboriginal title.

The plaintiffs rely , the United Nations Declaration on the Rights of Indigenous Peoples, UNGA, 61st Sess, UN Doc A/RES/61/295 (2007) GA Res 61/295 [UNDRIP] [*BC *] in support of their position that the LTA does not apply to Aboriginal title.

The plaintiffs agree that the provincial land title system is intended to provide certainty and security as to title to land. They do not dispute that, generally, registered interests are indefeasible under the LTA. However, the plaintiffs say the LTA is not a bar to the relief sought and there is no indication that the LTA applies to Aboriginal title lands. In the alternative, if the LTA does apply, to the extent it displaces Cowichan Aboriginal title, it is an unjustified infringement. In the further alternative, it is constitutionally inapplicable and of no force or effect as against the Lands of Tl’uqtinus.

With respect to Richmond’s argument that any Aboriginal title was extinguished by virtue of being “purged and disencumbered” there is no indication that, when enacting any of the historical Municipal Acts, the Province considered Aboriginal title, considered it might conflict with its municipal regulatory scheme, or intended to resolve the conflict by abrogating Aboriginal title. I address this issue in Part 7.

D. ANALYSIS #

I now consider whether and of the LTA apply to preclude a challenge to the validity of the fee simple interests in the Cowichan Title Lands. As above, Richmond advances this as a defence to a declaration that its fee simple titles are defective and invalid, in whole or in part. The same relief is sought in respect of Canada’s fee simple titles but Canada does not advance this defence. BC submits that the fee simple titles in the Cowichan Title Land are valid, including by virtue of the operation of these sections of the LTA. Although the plaintiffs do not seek this relief against any third party private landowners, I consider BC’s submissions on this issue.

1. The Torrens System #

I begin with some brief background about the Torrens system drawn largely from BC’s submissions. BC and Richmond provided lengthy submissions on the historical development of the Torrens system. However, it is the current LTA and its effect on Aboriginal title and the relief sought in this case that are at issue here.

British Columbia’s land title legislation is a form of Torrens system: an innovation upon earlier land conveyancing where a person’s title to land is validated by public registration independent of prior owners’ interests. The public register is to serve as the definitive statement of the state of title, and anything “behind the register” is intended not to affect the state of title: Taylor (2008), The Law of the Land: The Advent of the Torrens System in Canada, at pp. 9-10.

A person’s title under a Torrens system is independent of the title held by any prior owner. There is no more chain of title. If a purchaser makes a deal with the registered owner of a property and registers their newly acquired interest in the property, that purchaser may become indefeasibly entitled to the property regardless of how the seller or anyone prior came to be the owner: Taylor at pp. 9-10.

The foundations of the Torrens system in British Columbia are maintained under the current LTA. Part 3 of the LTA in particular sets out the effects of registration. This part provides that interests in land are only transferrable by registration, and that registration creates an indefeasible entitlement protected against actions for recovery of land. The current Torrens system is further reinforced by an insurance mechanism that limits the remedies available to a party deprived of an interest in land.

Di Castri calls indefeasibility of title a “cardinal principle” maintained through amendments under the LTA, which also simplified and modernized the system: Victor Di Castri, Registration of Title to Land, (Toronto: Thomson Reuters, 2023) at 1.14.

2. Do ss 23 and 25 of the LTA bar a declaration that Richmond’s fee #

simple interests in Cowichan Title Lands are defective and invalid?

I turn first to determine whether, as a matter of statutory interpretation, and of the LTA apply to preclude a declaration that Richmond’s fee simple interests are invalid. The LTA is a provincial statute of general application and whether it applies to Aboriginal title is first a matter of statutory interpretation.

The modern rule of statutory interpretation requires that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”: see quoting Elmer Driedger, Construction of Statutes (2nd ed. 1983) at 87.

Subsection 23(2), reproduced in part below, provides that indefeasible title is conclusive evidence as against the Crown and all other persons that the registered owner is indefeasibly entitled to a fee simple estate to the land described in the title, subject to certain exceptions:

(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following:

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Subsections 23(2)(a)-(g) enumerate certain exceptions, none of which are applicable.

Section 25 of the LTA, reproduced in part below, provides for the protection of registered owners against actions for recovery of land, subject to certain exceptions:

25(1) In this section, “courts” includes a person or statutory body having, by law or consent of parties, authority to hear, receive and examine evidence.

(2) An action of ejectment or other action for the recovery of land for which an indefeasible title has been registered must not be commenced or maintained against the registered owner named in the indefeasible title, except in the case of

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(3) In any case other than those enumerated by way of exception in subsection (2), the production of a subsisting state of title certificate must be held in all courts to be an absolute bar and estoppel to an action referred to in subsection (2) against the registered owner named in the certificate, despite a rule of law or equity to the contrary.

Subsections 25(2)(a)-(g) set out a list of exceptions, none of which are applicable.

Section 2(1) of the Interpretation Act provides that it applies to every enactment unless a contrary intention appears:

2(1) Every provision of this Act applies to every enactment, whether enacted before or after the commencement of this Act, unless a contrary intention appears in this Act or in the enactment.

Section 8.1 of the Interpretation Act provides that every enactment must be construed as upholding, and not derogating from, Aboriginal and treaty rights:

8.1(1) In this section:

”Declaration” has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act;

”Indigenous peoples” has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act;

”regulation” has the same meaning as in the Regulations Act.

(2) For certainty, every enactment must be construed as upholding and not abrogating or derogating from the aboriginal and treaty rights of Indigenous peoples as recognized and affirmed by section 35 of the Constitution Act, 1982.

(3) Every Act and regulation must be construed as being consistent with the Declaration.

With respect to s. 23 of the LTA, the plaintiffs plead it does not and was not intended to apply to the plaintiffs and to Aboriginal title and rights holder generally, as Indian Act bands and Aboriginal title and rights holders are not ‘persons’ under the LTA.

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I accept that the purpose of s. 23, and the Torrens system generally, is to ensure the security of registered title as broadly as possible. However, given the nature of Aboriginal title, and the plain text of s. 23(2), I do not find that the Legislature intended s. 23(2) to provide that an indefeasible title under the LTA is conclusive evidence that the registered owner is indefeasibly entitled to an estate in fee simple as against Aboriginal title claimants and holders.

Section 23(2) must be read in accordance with the whole of the LTA. Generally speaking, the LTA and the Torrens system deal with estates and interests which derive from a Crown grant of fee simple. Aboriginal title is not derived from Crown title; it is grounded in an inherent right of Indigenous peoples to the ancestral lands they used and occupied prior to the Crown’s assertion of sovereignty. Aboriginal title is not a registrable interest under the LTA and does not fit within the confines of the Registrar’s powers under it. Aboriginal title is “upstream” certificates of indefeasible title: Skeetchestn at para. 50. No caveats, lis pendens, or certificates of pending litigation can be registered to alert purchasers to the existence of an unproven claim to the land by Aboriginal people. I acknowledge BC’s submission that the fact that Aboriginal title is not a registrable interest under the LTA is a different issue than whether Aboriginal title holders are “a person” under s. 23(2). However, it is instructive in considering the scope and scheme of the LTA, which is largely aimed at a system of registration for Crown derived interests.

BC and Richmond advance arguments respecting the interpretation of ss. 23 and 25 of the LTA which would preclude relief for Aboriginal title holders through a statute that does not recognize it. In cases such as this, where the Crown has taken the land or assumed control of it and granted it to third parties, recognition of Aboriginal title would be hollow, as its exercise may never be possible. I question how an Act that does not permit the registration of Aboriginal title could effectively extinguish the right of an Aboriginal people, where Aboriginal title is not a registrable interest.

I also find that if the LTA were to apply, the effect of indefeasibility of registered fee simple title on Aboriginal title land would be tantamount to extinguishing the interests of Aboriginal title holders.

If the indefeasibility sections of the LTA were to preclude Aboriginal title holders from challenging the validity of fee simple interests or seeking declarations in respect of Aboriginal title lands held in fee simple, they would, in effect, bar Indigenous people from seeking the return of their land. This would amount to extinguishment by denying Aboriginal title holders the ability to exercise their rights, and would be inconsistent with the well-established principle that, prior to the enactment of s. 35, only Parliament could extinguish Aboriginal title, and since s. 35 was enacted, Aboriginal rights cannot be extinguished; they can only be regulated or infringed, where doing so can be justified: Van der Peet at para. 28. Accordingly, my determination that the Cowichan in their capacity as Aboriginal title holders are not “a person” within the meaning of s. 23(2) of the LTA is consistent with the constraints on the Legislature’s ability to extinguish Aboriginal rights.

I disagree with BC that an action for recovery of land is barred pursuant to the text of s. 25, regardless of who brings it or why. As with s. 23(2), if this reasoning is followed, it would mean that s. 25, in concert with s. 23, would serve to effectively extinguish the Cowichan’s Aboriginal title.

BC submits that s. 8.1 of the Interpretation Act affirms the Province’s commitment to non-derogation from constitutional rights and underscores the importance of UNDRIP in the interpretation of provincial laws. BC submits, and I agree, that the Interpretation Act is an interpretive tool applicable to provincial laws to ensure consistency with UNDRIP. Section 8.1 of the Interpretation Act applies unless a contrary intention appears and it cannot alter the plain meaning of unambiguous provincial legislation. As to the approach, the process in s. 8.1 of the Interpretation Act overlays the interpretative approach required under the Rizzo Shoes analysis; it is an umbrella that covers the statutory interpretation process: Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 at para. 417.

I find support for the view that the indefeasibility provisions in the LTA do not apply as against Aboriginal title in s. 8.1 of the Interpretation Act, which directs that legislation be interpreted in a manner that does not derogate from Aboriginal rights. To construe it otherwise would also be inconsistent with UNDRIP. A plain reading of the LTA indicates that it does not and was never intended to apply to Aboriginal title; indeed, it does not appear to contemplate Aboriginal title at all. Further, as it is beyond the jurisdiction of the Legislature to extinguish Aboriginal title, this interpretation of ss. 23 and 25 is consistent with the limits on the Legislature’s powers.

In my view, Aboriginal title currently lies beyond the land title system in British Columbia and the LTA does not apply to it. It therefore cannot be said that a registered owner’s title under the LTA is conclusive evidence that the registered owner is indefeasibly entitled to that land as against Aboriginal title holders and claimants.

The intention behind the land title system in this province is to provide certainty and security with regard to land titles. My conclusion on the inapplicability of the LTA to Aboriginal title does not otherwise detract from the notion that registered interests are, subject to prescribed exceptions, indefeasible under that legislation.

Alternatively, if the LTA does apply to Aboriginal title, I would nonetheless find that ss. 23 and 25 do not bar the relief sought in this case. As I later set out, I find the Crown grants of fee simple interest unjustifiably infringe the Cowichan’s Aboriginal title. Further, the Crown grants were made without constitutional authority, and arise from the failure of colonial and provincial officials to set aside the Cowichan Title Lands as an Indian reserve. Some of Richmond’s interest in the land, in Section 27, derives from the 1874 Crown grant to the Chief Commissioner of Land and Works, Richard Moody, who dishonourably took some of the Cowichan’s land for himself, rather than marking out an Indian reserve as Governor Douglas’ policy had directed. The declaratory relief the plaintiffs seek is aimed at addressing these historic wrongs, and registration of competing interests in the Cowichan’s land under the LTA cannot preclude the Cowichan from seeking relief, which, if granted, would enable the exercise of their constitutionally protected title.

Accordingly, I find ss. 23 and 25 of the LTA do not bar the Richmond Fee Simple Declaration. In other words, Richmond’s registered fee simple interests are not conclusive evidence as against the Cowichan that Richmond is indefeasibly entitled to those lands, nor does registration of those fee simple interests preclude the declaration the Cowichan seek.