This article originally appeared in the Times Colonist.
By Karen Restoule, April 1, 2026
A lot of the anger and frustration since the release of the Cowichan decision late last summer — a decision that found Aboriginal title in parts of Richmond — is fuelled by the assumption that this is an “Indian problem”. It isn’t.
The root of the problem that has sent homeowners in Richmond and across B.C. into a frenzy can be traced back to an act that could be described as “Crown misconduct.”
On Sept. 3, 1863, Colonel Richard Moody, then the Chief Commissioner of Lands and Works responsible for administering Crown lands in B.C., discreetly sold himself parcels of land along the Fraser River that Crown authorities knew to be part of a Cowichan settlement.
Corrupt governance, followed by more than a hundred years of lazy governance, is the real cause of our present difficulties.
The 1800s brought about treaty making in Canada, as the Crown worked to expand settlement westward. Treaty 8, negotiated with folks in Alberta, expanded to include northeast B.C. From 1850 to 1854, the Douglas Treaties were negotiated. But treaty making stopped there, leaving roughly 80% of British Columbia’s land base legally unresolved.
Since then, the Crown simply hasn’t bothered to truly finish the project of confederation by responsibly settling the underlying land questions in the westernmost province.
Across much of Canada, treaties were negotiated to lay out the terms that would manage the First Nations-Crown relationship in a specific territory.
By contrast, in the years that followed Treaty 8 and the Douglas treaties, B.C. didn’t believe that it needed to resolve questions of land with First Nations; it refused to recognize Indigenous land title. B.C. governments operated on the assumption that the Crown already owned all the land.
That theory hit a wall in 1973 when the Supreme Court of Canada confirmed the existence of Aboriginal title within Canadian law with the Calder decision.
From there came Delgaamuukw, first filed in 1984, making its way to the country’s top court where the SCC confirmed that Aboriginal title is protected by Section 35 of the Constitution Act, 1982, and laid out the legal test for how it must be proven.
It also laid out the test to justify the infringement of Aboriginal title, noting that this is indeed a high bar test.
These and other court and civil challenges resulted in B.C. leadership creating the B.C. Claims Task Force in 1990 to study and recommend government action.
This led to the creation of the B.C. Treaty Commission in 1992, which was meant to focus on negotiated resolution rather than conflict-driven litigation.
Few treaties were concluded; the B.C. Treaty Commission can point to only three modern treaties: Tla’amin Final Agreement (2016), Maa-nulth First Nations Final Agreement (2011), and Tsawwassen First Nation Final Agreement (2009).
This issue of land uncertainty has remained relatively untouched since the 1990s, with governments apparently unbothered to prioritize resolution, it not being politically expedient to do so, and with a big focus on the social aspect of reconciliation, there was no need to pay attention to the nuts and bolts.
That is, up until recent months.
It wasn’t too long after the Cowichan decision that the finger-pointing began: to the use of land acknowledgements to brainwash the courts into ruling in favour of First Nations in legal land disputes, to the local municipality for not notifying the impacted private property owners, to the antics of the Eby government for embedding the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into provincial law — which critics argue has opened the door to the erosion of Crown land and private property rights — and more.
While it’s possible that these things created the preconditions, a closer look at the Cowichan decision reveals a deeper source of this chaos.
In the 19th-century the Cowichan people had a long-standing settlement at Tl’uqtinus along the Fraser River.
Crown authorities were aware of their presence in that territory. The Cowichan and their lands ought to have been protected by the Crown.
The land should have been set aside as a reserve. Instead it was surveyed and sold by the very Crown agent responsible for administering the Crown lands – to himself.
That parcel of land is now held by private owners, municipalities, government agencies – all operating under the assumption that the land had been legally obtained by the Crown. They, wrongly, trusted that previous governments had done their due diligence.
Courts are being asked to solve legal land issues that governments should have resolved, not exacerbated, a long time ago.
The Crown has skirted its responsibility, everyone else is stuck trying to clean up their portion of a mess they didn’t make.
Karen Restoule is Director of Indigenous Affairs at the Macdonald-Laurier Institute, a Senior Advisor at Oyster Group, and host of the Breakthrough Nation podcast. She is Ojibwe from Dokis First Nation.
