loading . . . What a record-breaking lawsuit reveals about tensions between private property and Indigenous rights The site of the former Tl’uqtinus village, on the Fraser River, is now occupied by a shipping terminal and a fuel depot for Vancouver’s airport. **Photo courtesy of Brian Thom**
As the dust settles from Quw’utsun (Cowichan) Nation’s landmark win in court — which declared it holds title to a small former village site on the Fraser River — the debate it sparked has scarcely stopped over whether Aboriginal title can co-exist with private property rights.
On Aug. 7, Supreme Court of B.C. Justice Barbara Young largely agreed with the plaintiffs, ruling that title to 7.5 square kilometres of land around Tl’uqtinus, a former seasonal fishing village in what’s now known as the City of Richmond, belongs to five First Nations that make up Quw’utsun.
The province, municipalities, legal experts, other First Nations and opposition politicians have all since weighed in — with one party leader arguing the decision is no less than a “huge, huge problem” for the province.
“Indigenous rights and private property rights cannot co-exist,” John Rustad, leader of the BC Conservatives, told delegates at the Union of B.C. Municipalities convention last month.
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Last Sunday, Rustad’s outcry went further — demanding the province’s premier pause all “negotiations” with Indigenous communities because “the ruling has created immediate and serious uncertainty about the security of private property ownership,” according to a letter posted online.
The First Nations Leadership Council — which includes all three organizations representing First Nations in the province — condemned Rustad’s framing of the ruling as “dangerous and cynical.”
“Aboriginal title and fee simple private ownership can and do co-exist,” it said in a statement Monday. “Reconciliation through recognition of this legal and political fact is not a threat to the stability and prosperity of British Columbia; it is the foundation on which it is built.”
Meanwhile the province, City of Richmond and Musqueam Nation all announced they plan to appeal the ruling.
“Tl’uqtinus is very important to us,” said Luschiim (Arvid Charlie), a former Cowichan Tribes councillor and history expert, during his testimony. “It’s our home.
“It’s very important to be able to live there again … like we used to, to harvest our resources again like we used to.”
## **Tl’uqtinus has ‘a very special history’**
The court case took more than five years and 513 days of hearings to resolve — more than any previous Canadian case — and Quw’utsun Nation included evidence from dozens of Elders and other expert witnesses, as well as many historical documents, to argue whether it held title over Tl’uqtinus.
In his testimony, Luschiim shared extensive background on the cultural significance of Tl’uqtinus village, how his nation used it, and his own experience fishing on the Fraser River as a child.
He even offered a detailed account of how the Quw’utsun people journeyed there from across the Salish Sea.
In its landmark Aug. 7 ruling in Cowichan Tribes v. Canada, the Supreme Court of B.C. included this map, demarcating the former boundary of Tl’uqtinus village (red line) on the south arm of the Fraser River in Richmond, B.C. **Courtesy of Brenda Underwood (Cowichan Tribes) and Ken Brealey (University of Fraser Valley geography department)**
The ruling also affirmed the nation’s right to fish in the waters near Tl’uqtinus for food. That important harvest was something Luschiim previously told The Discourse his people had been doing there for generations.
“Our people would go up the Fraser River to do their fishing and catch fish by the thousands,” he said in a 2022 interview.
But not all Indigenous communities saw the ruling as a victory.
Both Musqueam Indian Band and Tsawassen First Nation unsuccessfully opposed Quw’utsun’s claims to the former village site, arguing that Musqueam families had instead given permission to their Quw’utsun relatives to stay only temporarily at Tl’uqtinus during fishing seasons.
“Cowichan’s work around that declaration was being very sensitive to the history of Tsawwassen and Musqueam, and frankly the other communities who have relationships to the Lower Fraser,” said Brian Thom, anthropology chair at the University of Victoria, where he studies the intersection of Indigenous legal orders, governance, and land rights with colonial state powers.
“But the Cowichan village site — it’s got a very special history.”
## **The complex history of Tl’uqtinus**
Luschiim explained that Tl’uqtinus was an important hub for the Quw’utsun Nation.
Its members not only fished there, he testified, but also once used the village as a jumping-off point to travel further up the Fraser River — reaching Yale and even as far as Kamloops to trade goods with nations far inland.
Those traders would take along dried clams to exchange for materials for knives and arrowheads.
The Quw’utsun people’s pre-colonial presence on what is now called the Fraser River was so significant, Luschiim said, that some other Indigenous peoples once called it “Quw’utsun Sta’lo” (Cowichan River in the Hulʻqʻumiʻnum language).
Colonial expedition journals from 1824 also noted that the nearby Snohomish people called it the “Coweechin River,” according to the B.C. Supreme Court ruling.
“In the early times when they built Fort Langley,” Luschiim said, when we were coming home, the diary from one of the men there says over 500 canoes came down in one day.”
To cross the Salish Sea from Vancouver Island, the Quw’utsun used canoes attached together with planks of wood, similar to a catamaran boat.
Once they arrived at Tl’uqtinus, those planks would then be used to build walls around the village, and others to carry supplies further on the journey.
Quw’utsun canoes sit ashore at the mouth of the Cowichan River on Vancouver Island. **Photo courtesy of Edward Sheriff Curtis/Library and Archives Canada**
Luschiim and other Knowledge Keepers testified that Tl’uqtinus is a stl’ulnup — a sacred ancient homeland once defended by the Quw’utsun people collectively — one of many that also included the Gulf Islands, according to thousands of years of oral history.
“We gathered by the thousands, Cowichans,” he told the Discourse. “And the Cowichans [were] a larger group than what’s called Cowichans today, which then would have also included the Snuneymuxw and Qualicum First Nations.”
In her decision, Young concluded that “Cowichan” referred to multiple groups who travelled seasonally to the Fraser River, and to Tl’uqtinus specifically, as a collective.
She concluded the village was regularly occupied by Cowichan families through the 1800s.
Looking back over his life, Luschiim remembered Elders teaching him traditional Quw’utsun techniques for fishing during visits to Tl’uqtinus, using two canoes and a net.
The waters by the village, he said, provided the perfect place to practice this fishing method, since the river moved more slowly there.
“I think about how Elders shared knowledge with me, sitting … on a bank [at] Tl’uqtinus,” he said. “Not only me, but other Elders — we’d be able to share knowledge with our family, the young ones.”
## **Differences between territorial title and spot title**
Having Canadian courts declare who holds Aboriginal title to an area of land isn’t simple, however.
When a First Nation wants to pursue such a case in court, it must carefully weigh how it will frame its legal arguments, Thom explained.
Specifically, the plaintiff must determine exactly which facts it wants the judge to uphold in court.
In the Quw’utsun Nation’s case, Thom said, what stood out to him was just how precise their legal approach was.
“They asked for a super-narrow declaration of title,” he said, summarizing this broader approach.
Instead of asking the court to “solve the whole problem” of a large traditional territory, Thom summarized, the judge was asked only “to examine this one pretty small area: the footprint of the village, its immediate surroundings, and the associated fishing rights on the Fraser River.”
That approach, known as a “spot title” strategy, allowed them to focus their arguments solely on the Tl’uqtinus village site.
To prove their claim, the nation presented many layers of historical, oral, archeological and ethnographic evidence for that single “spot” of specific land.
Previous landmark Aboriginal title cases have asked the courts to rule on much larger traditional territories, often covering thousands of hectares.
Instead, Quw’utsun’s legal focus set aside any broader territorial claims, keeping focus “razor-sharp on the footprint of the village” they once occupied and used, Thom said.
A 1854 map shows a “Cowitchen Village” on the lower Fraser River in what is now Richmond, B.C. **Map courtesy of The National Archives/University of Victoria**
An example of this was in the 1973 case of _Calder v. Attorney-General of B.C._, led by Frank Calder and other Nisga’a Elders.
They sued the province, arguing successfully that colonization had never extinguished Nisga’a title to their territories.
That ruling did not fully settle questions around land ownership, but it laid the foundation for Ottawa’s comprehensive land claims process, one major way First Nations can formally claim title to territory.
The question of territorial title was later revisited in the 2014 ground-breaking _Tsilhqot’in v. British Columbia_ case.
In that major case, the Crown unsuccessfully argued ownership of Aboriginal lands should be restricted only to narrowly defined locations — such as a fishing rock, a salt lick used for hunting, or the footprint of a village, Thom explained.
“The Supreme Court finds on the facts in Tsilhqot’in that ownership is not a spot title relationship, it is a territorial title relationship,” he said.
“But those facts are specific to each individual First Nation.”
## **Misconceptions about Indigenous territory**
Thom told The Discourse that wider society often misunderstands issues around Aboriginal title.
As he sees it, that’s because of deep-rooted European settler biases.
Many Canadians view concept of “territory” as a large contiguous, or connected, area; but anthropologists like Thom see territory as being more about a relational web of alliances, mythological and resource sites — and, as in the case of Tl’uqtinus, even places that might be far from the rest of a First Nation’s current lands.
Thom is working on an experimental mapping project, Problematic Polygons, which helps visualize what territorial relations looked like around the Salish Sea.
The project relies on publicly available ethnographic information, which Thom acknowledged is a relatively small dataset.
So, even though the resulting map is not a definitive representation of Indigenous territory, it helps provide an alternative to the typical way anthropologists have mapped Coast Salish lands.
Traditional anthropology maps used polygons — continuous, jagged geometric shapes — contained within lines that form boundaries to mark where nations share common languages or historic ties to geographic areas.
But researchers like Thom have shown that concepts of kinship, travel, descent and sharing make those boundaries more fluid than can be captured by a simple geometric shape.
Land claims by Coast Salish governments have tended to support the idea that territory is “a nest of overlapping and interlocking lines,” rather than fixed borders like with modern nation-states.
## **Cowichan Valley itself faced similar colonial process**
That misunderstanding of territory is at the heart of land conflicts between Indigenous land ownership and colonial ideas of land tenure — tensions rekindled by the recent court ruling.
It’s not just a tension that’s emerged on the Fraser River, however. On Vancouver Island, how the Cowichan Valley was subdivided by the Crown historically was similar.
As early colonists prepared for European settlement across B.C., British land surveyors created detailed maps of the Cowichan Valley, which they then split into subdividable parcels.
This record of state-declared land-ownership boundaries — known as a cadastre — is then laid over existing maps to demarcate private property.
“It creates this other system of property relations,” Thom explained, “and then this enforceable system that people actualize through their practices on the ground.”
The result of this colonial process, he said, is that it “starts to exclude people.”
Over time, in the case of Vancouver Island Hul’q’umi’num peoples, they saw places they once occupied and used freely “twist and shrink and diminish,” he said.
A composite map of the Cowichan Valley details how surveyors divided up local land into privately owned parcels. **Map courtesy of Brian Thom**
Between 1859-1860, British Columbia’s Governor James Douglas ordered that Indigenous settlements not be sold by the Crown, and instead be set aside to create reserves.
At that time Quw’utsun people continued to occupy Tl’uqtinus and its surrounding lands, Justice Young agreed, therefore it was an “‘Indian settlement’” as colonial officials understood that term.
Despite that, the village was never established as a Quw’utsun reserve.
Parts of the land were instead bought by Richard Moody, the Colony of British Columbia’s first Chief Commissioner of Lands and Works — the same senior colonial official tasked with creating Indigenous reserves on village sites.
Over subsequent years, more of the land around Tl’uqtinus was sold off to other high-ranking officials, too.
“Every village has its own story,” Thom said. “Sometimes these things are more literally gunboat violence.
“And sometimes it’s through slow bureaucratic processes, or more neighbourly conflicts where people are having fights over the fences.”
## **‘A pretty darn high threshold’ for future cases**
Even though the Quw’utsun case is far from settled — with appeals already filed that could drag it on for years — undoubtedly First Nations across the country are scrutinizing the nation’s landmark victory using “spot title” land claims.
Because their legal strategy focused on the question of who exclusively occupied Tl’uqtinus in 1846 — the year the British Crown legally asserted its sovereignty over the province — other places could face similar claims.
That could even include other Quw’utsun settlements.
Yet older sites, such as Ye’yumnuts in the Cowichan Valley, could face tougher challenges proving spot title in court — thanks to the same “high threshold” needed to win the Tl’uqtinus case, Thom said.
Ye’yumnuts is over 2,000 years old — millennia before the British arrived in the area. As a result, there are few historical documents about it.
Archaeologists are shown excavating Ye’yumnuts, then known as Somenos Creek, in 1994. **Photo courtesy of Commemorating Ye’yumnuts**
Quw’utsun would be “hard-pressed to share the same kind of stories” about the history of Ye’yumnuts as they did for Tl’uqtinus, Thom believes.
“We’d probably have a harder time telling that story for that village site.”
Thom told The Discourse he worries the latest ruling may have set too high a standard to prove spot title in future cases.
Having to meet such a tough bar could make the process of having title recognized by courts even more slow, costly and burdensome for other First Nations.
“There’s just so much work that needs to be done to show title to the level of proof that the judge saw” in the case of Tl’uqtinus, he said.
“The standard of proof — in terms of what is title and what isn’t — just seems to now be a pretty darn high threshold.”
Within Quw’utsun Nation, there are roughly “half-a-dozen” village sites with histories and evidence similar to Tl’uqtinus, Thom said, “obvious village cases that have very, very similar parallels.”
One such place is currently known as Kin Park in Chemainus.
“We should be able to just look at these … and have an orderly process to declare title there as well,” he said.
_With files from Shalu Mehta._ https://thediscourse.ca/cowichan-valley/quwutsun-nation-court-case
