112: The Cowichan Tribe Case: Unprecedented Uncertainty of BC Property Rights with Cassels Brock & Blackwell's Thomas Isaac

00:00:00 Matt Glen

Welcome back to the Cologne Real Estate Podcast.

00:00:00 Taylor Atkinson

Podcast. I'm your mortgage broker host,

00:00:01 Matt Glen

broker host, Taylor Atkinson. And I'm your real estate agent host, Matt Glenn. Merry Christmas, Taylor. Merry Christmas. You guys got down from Big White this weekend? How was it? It was awesome. We stayed at Big White. Best client. I actually had that awesome place listed. He let us stay at his chalet on Feathertop in Big White for the weekend. Stayed there with my family. It was fantastic. Such a nice place. Big white was awesome. Snow was out. We watched the fireworks on Saturday night. We let him, our two and a half year old Julian stay up late for the fireworks. And like, I don't think fireworks have ever landed so well with an audience member. He just screaming, laughing. He loved it so much. It was actually very awesome to see.

00:00:40 Taylor Atkinson

It blows me way up there every weekend. they do the family carnival like they really go after that family crowd it's awesome i love it man so we were up there for the weekend we didn't ski we did everything else back in our like man we need to get a place up here like you have one but like it is so nice and like we didn't even do the thing that you're supposed to do there and it had such a great weekend so it was awesome it was such a good weekend and happy to kick off the holiday that way yeah wicked how was your weekend you were doing nothing but good things for the community yeah yeah we had our fourth annual uh

00:00:47 Matt Glen

i love it man so we were up there for the weekend we didn't ski we did everything else back in our like man we need to get a place up here like you have one but like it is so nice and like we didn't even do the thing that you're supposed to do there and it had such a great weekend so it was awesome it was such a good weekend and happy to kick off the holiday that way yeah wicked how was your weekend you were doing nothing but good things for the community yeah yeah we had our fourth annual uh

00:01:11 Taylor Atkinson

charity Christmas event. We hosted a Barn Owl. We do a silent auction, which Big White actually donated a basket for us to auction off, which was awesome. A lot of local businesses donated. So yeah, we funders a bunch of money that way. We did our shuffleboard tournament, had a baby delivery bedding pool because one of the ladies is, well... probably given birth today. Like there's, I think there's six hours left in the betting pool, but she's, she's getting induced today. So yeah, lots of fun ways to fundraise some money for local families in need. I haven't tallied it up yet, but we're probably close to about 5 ,000 bucks this year, which is just awesome. So good for you for doing that.

00:01:48 Matt Glen

good for you for doing that. I want to say community is better because you're an idiot. Proud of you. That's awesome. Thank you. Likewise. Well,

00:01:53 Taylor Atkinson

I can't take all the credit. Emily does a ton of the work for it. Yeah. You know, so her as well. Yeah. We get to just. do something fun and get back to the community. And yeah, lots of good friends that get humbled by the process. So yeah, it's awesome. Speaking about being humbled and, you know, trying to navigate something, you know, that's somewhat sensitive and difficult. Today we hosted Tom Isaac, an extremely knowledgeable lawyer that practices Aboriginal law across the country and has spent his entire career doing so. So, you know, I think anyone that has been following the news in the last six months has probably seen Cowichan Tribe. court case going on, specifically mostly to Richmond. So far, but it does seem to be bleeding to the rest of the province, for sure. It is definitely going to impact the rest of the province. We're very grateful to have Tom on the show. He articulates what's going on incredibly well to kind of summarize what has happened and what is, you know. Yeah, because we've talked to him on Tuesday and there's been some news since,

00:02:57 Matt Glen

there's been some news since, right? A lot, yeah. So we'll just kind of start by saying this has been... one of the longest court cases in Canada,

00:03:00 Taylor Atkinson

we'll just kind of start by saying this has been... one of the longest court cases in Canada, although we're only really hearing about it from the news side, you know, recently, but 513 hearing days over the last five years. And the court's decision was to award Aboriginal title, which essentially they're saying can coexist with fee simple private ownership. And it just by law, it just cannot. So Tom kind of dives into that. And essentially, you know, from that decision, we have 18 months until Everything can be submitted. It would likely then go to the Court of Appeal, which is the next level up. And then from there, if it needs to, it goes to the Supreme Court of Canada. And a similar case has happened in New Brunswick. And again, last week on, I believe it was Thursday or Friday, they actually announced that they would not be moving forward with awarding Aboriginal title. So they would be keeping fee simple in place.

00:03:57 Matt Glen

place. So similar court case, just farther along, kind of a different result in New Brunswick than what we have in BC.

00:04:02 Taylor Atkinson

Yeah. Yeah. And I think Tom alluded that that would kind of set the precedent in BC now. Yeah. Totally different provinces, totally different, you know, decision capacity. So, you know, I don't want to say like it's going to happen here because it happened there, but it was interesting to see that. In our episode,

00:04:18 Matt Glen

our episode, Tom was looking forward to what was coming out of New Brunswick. So we have that answer.

00:04:21 Taylor Atkinson

have that answer. Yeah. Yeah. You know, one of the quotes from the judge and I'll just paraphrase it was essentially, you know, if they awarded Aboriginal title, that would be the. you know furthest thing from reconciliation like that is just not the way forward and you know we kind of understand the irony of this situation and you know we don't take it lightly like it's there's just no there's no solution like how do you provide reconciliation on on something like this it's just a very difficult scenario so yeah matt and i are you know we just want to provide the content on our platform and speak with someone that knows a lot more about this than us so that's why we had tom on the shelf

00:05:01 Matt Glen

Yeah. And then Tom also in our show is calling on Premier Eby to start making some statements and helping out a bit. And so our show is on Tuesday and on Wednesday, sounds like he did. So from Eby says, to face such dramatic, overreaching and unhelpful court decisions as we have seen over the past couple of months is deeply troubling. Premier said, we will fix this because the uncertainty this case creates is toxic to the work we have to do with First Nations and businesses and the economy that we have to grow. It is hard to understate the damage that could be done or has already been done to the public support for the delicate, critical, and necessary work we have to do with First Nations. So it sounds like David E .B. is kind of pissed about the rulings and wants to get them figured out.

00:05:41 Taylor Atkinson

Yeah, and he's also gone on record again, this was very recently, that the province of B .C. will be offering $150 million to basically back financial institutes so they have the security to either refinance or complete on purchases in the Richmond area. No idea how that actually plays out. I think it's just a confidence play, right? It is. Yeah. I mean, someone could say that the damage is kind of done. Anyone that has ownership in Richmond right now is probably struggling for resale or lost value or just like that uncertainty is going to cause a lot of stress. Even if the banks could refinance, like let's see appraiser going to think about this. Well, yeah, like with the comps, it's just going to affect the comps in the area, right? Like things are not going to. likely sell. Tom Isaac actually points out, you know, it might be a little bit of an opportunity. There was some optimism from him in terms of like, this will get settled because the alternative is, is impossible to think about. Well,

00:06:36 Matt Glen

and also where does it stop? Is it just like, man? Yeah. It could be like a total, like major shift in real estate Canada.

00:06:46 Taylor Atkinson

And this is like we said at the beginning, this is applicable. across the province you know we have i think what tom was saying is you know some of the the longest history and most amount of first nations tribes in canada so i think we have the most tribes right like there's like 200 yeah there's over 200 yeah so all of them have their treaty claims we're blessed with the culture but this is something that needs a lot of attention and it probably hasn't been getting a lot of attention or maybe some of the wrong attention so anyways i think You know, we'll just let you guys listen to Tom. He's fantastic. He also states that, you know, you can sign up for his newsletters and blogs that he gets out there. He's also on the news quite a bit. So he is. Yeah. Yeah. Super fortunate to have him. Yeah. So yeah, give it a listen and hopefully you guys have a great Christmas and New Year's and we'll see you guys in 2026.

00:07:36 Matt Glen

Yes, sir. All right. This episode, like every episode sponsored by Century 21 Insurance Realty, best brokerage in the Okanagan, not just the Okanagan. We're talking and surrounding areas, Kamloops, Kootenays, East Kootenays. Yeah, we're the brokerage that's everywhere. Also, we're growing. We just kind of merged with executive property management. So we have now have a quite a sizable property management division as well. So if you are a investor looking for a property manager to help with you with your portfolio, or if you're a buyer or seller looking for an agent, or if you're an agent looking for a brokerage, Century 21 is a place to call. You can even just call me and I'll love talking about it. So enjoy the show, you guys. Merry Christmas. See you in 2026.

00:08:23 Taylor Atkinson

Okay. Tom Isaac, thank you for joining us on today's show. We've been patiently kind of waiting to have a guest of your caliber. Can you just quickly kind of give us a background of who you are and what you're currently practicing?

00:08:35 Thomas Isaac

Sure. Sure. So, well, my name's Tom Isaac. I'm a lawyer. I've been practicing in Aboriginal law for... a long time, and I started my career in the public service. My first job was with the government of Saskatchewan, and then went up to the Northwest Territories and helped set up Nunavut, and then I was Chief Treaty Negotiator in British Columbia. And for the past 25 years, I have focused on an Aboriginal law practice in every province of territory of Canada. work primarily for industry and public governments. Not all those mandates are public. Very proudly have started working with some Indigenous governments on, you know, the right matters where we can add value. And so I've been doing this my whole career. I've published a lot in the area. I appear in a lot of courts across the country. We have a large group. Awesome. Have you done any work within the, like, West Cologne? Any of you been there? Oh, yeah. Yeah. I'm very familiar with the Kelowna area. I've worked on some infrastructure projects without getting into the details. And yeah, I know that area very well. Just bought a condo in Kelowna. They're trying to help. And actually very proud to now be at least a partial resident of Kelowna. At least my son going to UBC is. I'd like to hear that. Yeah, no, it was great. And I mean, there was a point when I was in Kelowna, that whole area, probably twice a month for at least three or four years. Oh, really? And, you know, you've got, well, West Bank First Nation, got some very good memories of working with them very productively, I might add,

00:09:54 Matt Glen

really?

00:10:03 Thomas Isaac

on helping build out infrastructure for all people who live in the area.

00:10:08 Taylor Atkinson

Yeah. Well, I think, I mean, to jump on today, because we have so much information to cover, can we just kind of talk about Cowichan Tribe versus Canada? what has happened over the last few months. Obviously, this has been quite a long court decision, I guess, to summarize it, but can you just give us high level what's going on and we can discuss it from there?

00:10:27 Thomas Isaac

Sure. There is a lot, so I'll try to be very brief. The claim was originally filed in 2014. The trial ended in 2023. So nine years later, 513 days of trial time. I believe now they say it's the longest trial, civil trial in Canadian history, and then almost two years to get the reasons from the court. So the claim ultimately at the end of the day was for approximately 1 ,800 acres of land in the city of Richmond, a declaration of Aboriginal title on those lands. Aboriginal title is a right to the land. It's the Aboriginal right to land. It's not an interest in land. We'll talk about that maybe a bit later. It's a right to the land. And then at one point, before I get to the decision, this is important, I think. At one point, some folks came forward and said, hey, shouldn't we give notice to the other folks within the 1 ,800 acres that aren't named? So you have Canada, BC named the airport authority, Thawasson, Musqueam, and the city of Richmond. And the court decided no. We don't need to give notice to the other landowners, and those owners include businesses, some large, some small, and private homeowners. We don't need to do that because the decision won't affect them. Remember that. We're going to come back to that in a few minutes. So fast forward to August of this year and the reasons come out. And the judge found that there is Aboriginal title on 800. of the 1 ,800 acres. So you've got now black line around 800 acres. The judge said, I'll give 18 months before my decision takes effect. And in the meantime, British Columbia, you need to go negotiate with the Cowichan to sort out all these other private landowners that were part of the litigation, but whose land now is encumbered, as the judge put it, with Aboriginal Title. The judge said that the Land Title Act on the 800 acres doesn't apply. Think about it. You own land right now. You rely on the Land Title Act, and specifically it's Section 23 and 25. The whole Land Title Act's important, but as a lawyer, I like the whole act, but it's 23 and 25, and what those sections basically say is, see this, this title? This means something against the whole world. including the government, that you own this land. What the judge says in the decision is that on the 800 acres and off the 800 acres, the Land Title Act doesn't apply. But she doesn't invalidate the title, interestingly. So she says, you get to keep your title. This is how I describe it. I'm just going to erase everything on the page. Because the guts of the title, like what makes the paper valuable is the Land Title Act. The judge, interestingly, also says that the decision doesn't affect private parties until the Cowichan or another First Nation goes to obtain the land and take possession of the land. I say with the greatest of respect to the court that I believe that's incorrect on its face, that in fact, those folks on the 800 acres were affected immediately upon the release of the decision from the court that said, all that land that's held privately can't rely on the Land Title Act anymore. One other comment I'll make. The judge says, look, when the Cowichan decide if they want to go to court at some point and they want to obtain that land, the private landlords can defend it and they'll have their title. But remember what I told you earlier, so what's the first defense fee? You have to be a lawyer to figure this out. You're going to reach for your title and go, oh, judge, they're not entitled to my land because I got this certificate of title from the government of BC that says I'm indefeasibly entitled to this land. And the court will go, yeah, but the guts of your title have been erased because you can't rely on the Land Title Act. So all you're left with is a piece of paper that is evidence that you once had indefeasible title. That is not an exaggeration. I will just say it is not hyperbole. I am not trying to fearmonger on your show. That is what the judge and the decision said. It's not open for argument. In fact, the court was quite articulate on this point. Final point I'll make. Remember I said the 800 acres. The judge, interestingly, also said, oh, by the way, a precedent that's going to flow for my decision. is that my analysis of the effects of title on private land, the fact that they can coexist according to the judge, applies throughout all of BC. Now, I didn't say that. I'm telling you that's what the court said. I've got the paragraphs here somewhere, right here, in six different places. Now, why do I stress that to you as a final comment? There's a lot of focus on the city of Richmond, and I get it. The claim was in the city of Richmond. But strictly speaking, The only material relevant parts of the city of Richmond are the 800 acres that title has been declared on. The other comments about the Land Title Act and the precedent, they are not restricted to the city of Richmond. The media is sort of focused on, well, the city of, oh my goodness, city of Richmond. Look, I don't want to downplay for the poor folks that are directly affected in the 800 acres. And quite frankly, practically speaking, the city of Richmond is wearing this, practically speaking. But the judge did not restrict in any way the comments about the precedent for the entirety of the province to Richmond. That applies to every square inch of the province, according to the judge in Cowichan. And again, I'm not trying to fear monger. The judge is actually quite clear in the decision on it. So I'll stop there. I know that was a bit for both. ran through i think the guts of the decision so just quickly so when was the decision and then so she's given 18 months from her decision before so we're roughly just over a year out yeah we're four months and yeah maybe a year out the province has said it's going to seek a stay that is like stopping the effect of the decision until the appeal is heard as far as i know they have not done anything to give effect to that

00:16:56 Matt Glen

just quickly so when was the decision and then so she's given 18 months from her decision before so we're roughly just over a year out yeah we're

00:17:07 Thomas Isaac

four months and yeah maybe a year out the province has said it's going to seek a stay that is like stopping the effect of the decision until the appeal is heard as far as i know they have not done anything to give effect to that And the fact that we're in December and this decision was rendered in August, I will just share with you, I think is appalling. I think we're in an emergency situation. It's my view. I'm not an elected politician. I'm not democratically elected. But as an observer of all this, I don't know how much more serious this can get in a province, let alone British Columbia, without on an emergency basis saying we need guidance from the British Columbia Court of Appeal on this as quickly as possible. So hopefully they'll file their stay motion. soon and get this case rolling and moving so do we know kind of what the purpose of this was like what was the couch and tribe trying to achieve was it like reconciliation because it doesn't seem like you know going after private land was really on their strategy like have they communicated in their case like what exactly the outcome they were desired for well look i'll say two things on that

00:17:55 Taylor Atkinson

kind of what the purpose of this was like what was the couch and tribe trying to achieve was it like reconciliation because it doesn't seem like you know going after private land was really on their strategy like have they communicated in their case like what exactly the outcome they were desired for well

00:18:13 Thomas Isaac

look i'll say two things on that They have been saying publicly, it's been reported in the media, that they're not after people's private property, to put it colloquially or plainly. They're not after people's private property. Here's the problem with that. And by the way, I'm not suggesting they're trying to be misleading. I mean, they can say it the way they want. Aboriginal title is the exclusive right to land. Okay? If you ask for Aboriginal title and somebody says, here it is, should you be surprised that you get the way? So, you know, it could have done this other ways. And so they could have said, we want damages. That's compensation. Like we want money for breaching or infringing our title. They could have asked for that. That's what we want.

00:18:59 Matt Glen

Just play devil's advocate. They probably have asked for that. This has just been the most successful thing so far.

00:19:06 Thomas Isaac

Well, fair enough. But you asked the question, what were they seeking? Yeah. They were very articulate and clear. They want title. Look, I agree with you. There's other ways to do this, but the point I'm trying to make is they could have done it differently. It's their right not to, I'm not questioning the right, but to say, well, we don't want people's private property. Well, you asked for title. What did you think you were going to get?

00:19:30 Taylor Atkinson

to get? So I guess the main issue with the outcome is if you have Aboriginal title, you cannot have fee simple. Like is that the conflict?

00:19:39 Thomas Isaac

I would say that's the law currently in Canada. Both fee simple and aboriginal. So I've had a few people try to correct me online by saying, well, you know, Tom has said fee simple is an exclusive right to land. There are car votes. Of course there are car votes. The crown can expropriate land. It's like aboriginal title. I get news for everyone. It's not absolute either. The crown can also. justifiably infringed title, by the way. We might want to talk about that because that's interesting. But when I say they're both exclusive rights, there are caveats on both, okay? But they're essentially, if I say you've got indefeasible title to your land, that's against the whole world. That's as close to an exclusive right to land as you get. If I say you have Aboriginal title, by definition, the court has said it's not even crown land anymore. That's the court. The Supreme Court of Canada is saying that. So, How can you have two exclusive rights to one parcel of land? You can't. It's an obvious point.

00:20:38 Matt Glen

Do you know, has anybody tried to sell a property on here or even refinance one? Like, has anybody actually tried going through the channels to do it? So there has been some media reporting.

00:20:45 Thomas Isaac

there has been some media reporting. Yeah. And I want to be very clear, you know, to you guys that I've not been able to do due diligence on the, you know, I want to be very careful. I think it's really important for me to be as accurate as I can be. Yeah. I've not done my own personal due diligence. There was one person, I know one guy was saying he couldn't get his mortgage renewed. I will tell you, I know that Montrose has been public in the media, and I have no reason not to believe them in terms of the direct effects. I think that was just this week, in fact, that they were in the media saying that financing and lenders and all sorts of issues. But here's what I can tell you. I know of two examples, firsthand knowledge. of two commercial purchases in the eight -digit range, okay, the tens of millions, of two commercial parcels, two separate deals, not on the 800 or the 1 ,800 acres, trying to be really clear, but within the city of Richmond. Both of those deals fell apart because the purchasers walked away, and in both of those instances, the only reason that was given was a lack of certainty in British Columbia's land title system and the Cowichan decision. Now that's my firsthand knowledge. So I can tell you that definitively, you know, talking to colleagues and know the firsthand. Yeah. I think if you take the media reporting and what's out there and you discount it by 50%, there seems to be a lot going on. I think if you err even on the side of caution, and remember, we're only a few months into this. Nobody's even heard this podcast yet. That's right.

00:22:25 Taylor Atkinson

right. I think from a financing point of view, I've seen the media exposure on that as well. Hard to say, right? Lenders don't really want to comment on something that's not solidified either, but in terms of like the value or damage from the resale, for sure. Even just that lack of confidence from a buyer. Absolutely, that's going to affect it.

00:22:46 Thomas Isaac

Anyone suggesting this hasn't affected the market. Look, we could debate how much. And I don't do what you guys do, right? I don't pretend to be. I just buy properties for myself. And there is a buying opportunity right now in all of British Columbia, which isn't great in some ways. But anyone suggesting that there has not been a direct and immediate effect on the market, come on. Like, look, we can debate how much. Again, maybe about my pay grade to debate it. Absolutely a direct effect. I mean, the softening in the market seems to be on a weekly basis from what I'm observing. And I'm not blaming that all. And I'm not blaming Cowichan Triarch First. Also, I'm not blaming First Nation. I'm not going to put that all in the decision. I think that's unfair to put that on our courts. I would say the government of BC needs to be much more bold on what its next steps are going to be,

00:23:33 Matt Glen

are going to be, though. Obviously, we're super interested in the real estate implications. But what about things like policing on that land or like bylaws? Because I know like from our neck of the woods, when you get into the West Bank First Nations, there can be different laws when you go into reserve. Like, is this reserve land? Yeah, it's not reserve land.

00:23:51 Thomas Isaac

So reserve land is run under the Indian Act system, which is a statute, a law. Aboriginal title is constitutional. And here is what I'm going to be very clear. I'm going to use direct words from the Supreme Court of Canada. If it's Aboriginal title, it belongs to the First Nation. It is no longer crown land. Direct quote. It's not crown land anymore. The First Nation would have full jurisdiction on that land. For the most part, unless the province and the federal government wants to justifiably infringe on that land. And then in that case, the courts have been very clear that the ability to justifiably infringe on Aboriginal title land, now I'm using direct quote, fairly broad. But our governments don't like using that language because it might offend someone. What I would say to all of you, I don't hesitate to use the language. I try to be respectful. There are lots of indigenous friends. This is the legal toolkit we've been given in this country. That's the one tool government has to balance aboriginal title rights with the rights of the rest of us in British Columbia. So if you have a government going, we'll never argue justifiable infringement. Never. Well, now you don't have a toolkit. Do you understand? That's the only tool you've got in the toolkit. Save and accept for an agreement. And the way British Columbia drafts its agreements, I wouldn't want to be relying on their agreements. I said it. It's true.

00:25:25 Taylor Atkinson

Will this be escalated at a federal level? Like if the appeal, say, isn't successful or if it is, does it just continue on? So in British Columbia,

00:25:33 Thomas Isaac

British Columbia, of the British Columbia Supreme Court, that was the decision in August. Then we have the British Columbia Court of Appeal. That was a decision last week, for example, on Nundrup and the Drupalat Law. That's the highest court in British Columbia, is the British Columbia Court of Appeal. What it says is final in British Columbia, subject only to the Supreme Court of Canada. In order for it to go to the Supreme Court of Canada, leave must be sought. What does that mean? It's not an automatic right of appeal. In British Columbia, there's an automatic right of appeal to the British Columbia Court of Appeal. If you want to appeal from the British Columbia Court of Appeal to Supreme Court of Canada, I mean, essentially you have to ask the court. And the court will go, yes, I'll hear your appeal, or no, we won't, and here's the reason. They usually don't give a reason why. They'll just say, we won't hear the appeal. And so do you think it would get to that level? Do you think they would hear the appeal? No, I've been doing this too long to know not to give a definitive answer on that. I think anybody giving a definitive answer wouldn't be worth too much on that. Look, this is obviously a really, really critical issue. It raises fundamental issues about where we're going, not only in British Columbia, but in Canada. And, you know, my assumption would be this would have a very good chance of having leave granted. But, you know, I've said that before about decisions and I've been wrong. But just right now, like today, looking at it. I would say it's got a good shot regardless of which way the court of appeal were to go on this. But this is the part of the challenge with our justices. We just don't know because we've got, you know, leave to appeal first is what you'd have to see. Do you know anything about the situation in Kamloops?

00:27:11 Matt Glen

you know anything about the

00:27:12 Thomas Isaac

situation in Kamloops? What's happening? Well, look, I mean, there's a focus on Kamloops that you've got to claim over the city of Kamloops. But yeah, I don't think people realize that all of British Columbia is claimed, right? That's my next question is like, is there any? Yeah. So, and again, with all due respect to Kamloops and all my friends in Kamloops, all of British Columbia has either get a formal legal Aboriginal title claim on it, or it has an assertion of an Aboriginal title claim with the potential for litigation to be launched at some point. Now, this isn't a loan. I mean, the province is covered.

00:27:50 Matt Glen

covered. But in countless, did they hear what happened in Richmond and decide to bring it forward to court? Or like, why is countless in the news then? I think people are just noticing. I think,

00:27:58 Thomas Isaac

think people are just noticing. I think, look, I don't want to speak for people, but what I take from that is I think people are just starting, which I think is very good and healthy in a democracy. And for reconciliation, people are going, hey. Isn't there a claim on their site? All I'll say is everybody needs to take a look at the municipal boundaries because they're going to find out that the entire province is claimed. I don't care what city you're in. You're going to have some form of assertion of Aboriginal title on it. I mean, there wouldn't be any part of the province I would point to that doesn't have some form of assertion of title or maybe a settled treaty. It might be a settled treaty area. Just to be clear, we have treaty aid area. Yeah. And we have, of course, our modern treaties of the Twasen Agreement, NISCA, for example. But yeah, no, the province is completely claimed. So I'm sitting in Vancouver. It's got an assertion of average. I live in West Vancouver. It's got an assertion. Kelowna, like everybody's got a claim title. What are we waiting for again? The decision? No, we've already heard the decision. We're waiting for it to come into effect. We're still waiting for an order to be filed. So we get the decision. The way Canada works is you now have to have an order from the decision. Then you can seek to appeal. We're now, what, four or five months in, no order. Now, why the province hasn't insisted on all the parties on an emergency basis, with maybe the judge sitting at the head of the table saying, we're getting in a room, we're finalizing the order as soon as possible within 30 days. Why? Because this is an emergency. We have a public interest in ensuring that British Columbia, all British Columbians, Indigenous and non -Indigenous, have some predictability in their justice system, and we get this in front of our highest court as soon as possible. I haven't ordered yet, and I don't know when it's coming. I suspect it's 2026 sometime. This to me is the big issue is there is a role for government to play here in terms of leadership and very disappointed with what I'm seeing. I mean,

00:29:58 Taylor Atkinson

mean, with that said, I guess, and this might be a tough question, but what would your... decision have been like if you were the judge or like what would you like to see the outcome now what i would have said is that the granting of feasible interest extinguished any aboriginal title that's what i would have said and it's possible and the crown should go back to the negotiation table even if there isn't a direct legal remedy in that instance the crown needs to do the right thing and negotiate a solution with whatever first nations one were to ultimately conclude that title or i could have said

00:30:08 Thomas Isaac

outcome now what i would have said is that the granting of feasible interest extinguished any aboriginal title that's what i would have said and it's possible and the crown should go back to the negotiation table even if there isn't a direct legal remedy in that instance the crown needs to do the right thing and negotiate a solution with whatever first nations one were to ultimately conclude that title or i could have said I find the title existed here, but it is justifiably infringed by the granting of a fee simple interest. Crown, you owe them some compensation. This isn't rocket science, and I say that with respect. I mean, putting people's private property on the chopping block isn't reconciliation. There, I said it. Stand by it. Sorry, but that's not all of us living together. And, you know, we are a settled country. I'm not moving from British Columbia. I got news for everyone. You know, so we've got to learn to live together. And our Indigenous friends, and I feel very strongly about this, have a right to justice. This country voluntarily amended its constitution. And until we do other amendments to our constitution, we're bound by that constitution. I've got lots of Indigenous governments. They have every right to pursue their claims. I want to be very clear about that. It's a free country. That's what makes our country great. There's an obligation on our public governments to govern and to lead and not hide behind double speak and triple speak. I travel the country, right? So we work across Canada. What's the biggest issue in Aboriginal law? And I have been giving the same answer for two decades. There is no problem in Aboriginal law. I mean, look, we got gray areas. The Cowichan decision, don't get me wrong. The lack of a long -term sustainable public policy framework within which to deal with these claims in British Columbia is palpable. And we all know it. And I'll say it. We all know it. We all feel it. How are we supposed to reconcile with 200 constitutionally protected governments? I haven't even talked about the Métis yet. You know, we better come up with it as opposed to first past the post. So, you know. A Haida agreement, great. Well, what about the other 150 First Nations? Are they getting 100 % of their asserted traditional territory? Don't they deserve reconciliation too? So how are we going to reconcile with 200 First Nations in this province in a way that is respectful to them and to their constitutional rights, but that also leaves us with a province that is governable? I'm not trying to be provocative by asking that. But that is the question. I'm sorry. That's the question. And I think most British Columbians, ultimately, I think they know that is the question. I've not heard anyone come forward with even a clue on what that looks like. And our public governments need to be the ones to do it, not First Nations. That's not on them. That's unfair. It's not on our courts to do that for us. It's not on industry.

00:33:10 Taylor Atkinson

It sounds like the lack of accountability on that side has now led to, you know. collateral damage for those private owners of that section. I mean, you're closer proximity, like geographically. Have you spoken to Richmond municipality or private owners? Like, is there just outrage or are we still kind of naive to the fact that this is going to say to mixed bag?

00:33:33 Thomas Isaac

say to mixed bag? British Columbia is an unusual political jurors that people don't like to speak up here. And I think what the concern is, is they're worried about what they'll lose. And I understand that. To be clear, I get that. But I don't think those same people understand what's at stake here. This isn't just about Cowichan. This isn't about, I'm not picking on Cowichan tribes. I've got nothing against the Cowichan nation, by the way. I wish them all the best. I do, and quite genuinely, this is about a much bigger issue of where is our province going? And do we actually want a functioning economy in this province? I'll put it another way to you, and this may be a bit more provocative, but I'll say it because I've been trying to think of how to put this. We have one third of the First Nations in our country in British Columbia. Suddenly look at that and say, that's a blessing. Are we lucky to have that many rich cultures in one jurisdiction? And I mean that quite genuinely, by the way. I don't mean that in any way sarcastically. But of course, there's a challenge with that. We've got 200. We've got one third of all. And our province has only settled some of the need for outstanding treaties and the claims, relatively small proportion. So do you want to know the perversity of that situation? In terms of affording reconciliation in a way where we can still keep a health care system and have roads and maybe someday buy some new ferries, we have a need to have more mines, more pipelines, more nuclear. more forestry, more mining, proportionately than any other jurisdiction in the country. I said it. It's true. How are we going to afford this? Again, this is the perversity of the situation we find ourselves in, that in order to meet the obligations that our public government has, the idea of weaning away from development, we're in the opposite situation. We need to be developing at a rate that exceeds any... other jurisdiction proportionally in the Federation, because we have a much bigger task in front of us. Yes, Nova Scotia, Prince Edward Island might have some outstanding claims. They are dealing with maybe a dozen First Nation, two on Prince Edward Island. We've got 200. The numbers don't work here unless you have the single most robust economy in the country. We've not come to grips with this and we're doing the opposite, it feels like. So please challenge me on what I just said to you, if you think I'd pray on this.

00:36:11 Matt Glen

No, so you're saying to ramp up the resource extraction and all that to pay for basically... Well, how are you going to do with that?

00:36:17 Thomas Isaac

Well, how are you going to do with that? So somebody needs to lay out to me the economic plan of how we're going to reconcile with all 200 plus First Nations and the Métis in British Columbia and still... be able to have healthcare, education, roads. Again, I'm not arguing against reconciliation. The opposite. I'm in favor of reconciliation. I'm a big supporter. But if we don't have the honest discussion of, well, okay, we've only got so much land. Land is finite in this province. How are we going to construct an economy that respects all those individual indigenous governments? and still allows us to have the capital and resources to do reconciliation properly. Well, I don't think you have to be, again, as I say, the country's chipping the bag to figure out, we don't have the answer to that question right now. All you have to do is look at the BC economy, and we haven't even dealt with the majority of First Nations yet in this province, remember. They're not at the table. They're not getting the attention. So I hate to rip the bandage off like that, but I think we're at a point no one else seems to be talking about it. So I'll say.

00:37:27 Matt Glen

So obviously this is a pretty monumental decision in the court. And now you have people like you and more and more people talking about, well, we just need to start coming up with some money to just pay them to settle these old, obviously the unceded land and all that, all that lingering issues, right? Is that kind of what?

00:37:45 Thomas Isaac

Yeah. I mean, I'm not sort of saying just pay them. What I'm saying is that capital is finite. There's only so much land. We can only grow our economy so big, but it better be bigger than what it is today. And by a significant margin, all of us know how our standard of living has dropped. I talked to a lot of British, I talked to a lot of Canadians. Everybody is feeling it across the country. I haven't met a British Columbian yet that feels like their standard of living hasn't dropped in the past decade. That is not a partisan comment, by the way. I want to be very clear. It's just as a statement of fact. And there's a variety of reasons for that. But, you know, I don't mind paying taxes, but I want to see my taxes do something. We improve the downtown east side. We're settling treaties with more First Nations. We're treating those First Nations, not first past the post, but if you've got bad drinking water, we actually have money. to help those first nations we're promoting economic development we're getting jobs for british companies we're proud to call ourselves british colombians which i am as opposed to a resident of british columbia which i think our government wants us to call ourselves now if economically there weren't restrictions like obviously that's a huge a huge hurdle and there are no obvious solutions but let's just take that out of the picture for a second from a time frame point of view like this case was historically the longest in canada right

00:38:56 Taylor Atkinson

economically there weren't restrictions like obviously that's a huge a huge hurdle and there are no obvious solutions but let's just take that out of the picture for a second from a time frame point of view like this case was historically the longest in canada right potentially now that this is like case study, we have a precedent of it. How fast do other cases come up like this and are settled? Like how, how fast does reconciliation occur now that we have something to work off of? If we negotiate proper settlements,

00:39:27 Thomas Isaac

we negotiate proper settlements, I use the word proper deliberately, by the way, proper settlements that could be done more quickly. I'm a big fan of the treaty process. I think the treaty process is the ultimate objective in this province. That's my belief. Why? Because a constitution protects the rights and it's apples to apples. So when you say in a treaty, we will protect feasible rights, that means something constitutionally. You say it in a contract and, you know, so I would disagree that we can't do it a little differently right now. We could open this province up for development. We should be California North. I've always said that. We should be one of the strongest economies on the planet. I don't mean Canada. I mean British Columbia. We have chosen not to. And the question then is, okay, that's a choice I guess we've made. Some people have made. I certainly have a decision that was up to me. I'd be the opposite. Why? So I could actually treat all First Nations equally. treaties in a way that would be meaningful for First Nations so that they go out and buy land on the market. I would not take people's private property away. I do everything possible to protect people's private property. These are the kinds of core principles we need to land on. But we're not there today. But I would just say that that's all within the power of our public governments. Look, there's examples on the case law that are gray. It can take a long time to move through court. But our governments today have a whole suite of tools in front of them. They choose not to use them. And they will justify why they don't. And people will need to judge whether they've been successful in that. I would say we have not been successful. I think we should use the toolkit, do it transparently, and make this province prosperous. for Indigenous and non -Indigenous peoples as opposed to the first -past -post reconciliation. That's what I call it right now. You know, and I'm not going to name the First Nations because I wish them well and I'm happy to see them doing well. But we all know what I'm talking about. My Indigenous friends know what I'm talking about because many of them aren't first -past -the -post. They're not the ones that get the deputy ministers coming to visit them. We can't be running the province that way. We've got 200 -plus Indigenous governments in this province. They all deserve to be treated with respect, as do the non -Indigenous citizens of this province. So we need to rethink and recalibrate the way we've been doing business. And I'm not just blaming the Eby and the Horgan governments on this. It would be unfair of me to do that. I'm not. They've exasperated it. They really have. But this has been building for three decades through successive governments in British Columbia. of pushing off the big questions and not coming up with the ultimate goal. So you think if we negotiated earlier, it would have never got to court? Maybe not. I mean, there's a right in this country to go to court. And that's simply the reality of Canada. The issue is what do you do when you go to court? Do you go in there and vigorously defend the simple title and say, we either do it this way or we will amend the constitution to protect private property rights? To me, that would be leadership. That's what's needed. I don't think that's offensive to reconciliation. There'll be people that disagree with me. They're entitled to disagree with me, but we need to have a civil dialogue on this. I guess for people that are currently,

00:43:00 Taylor Atkinson

guess for people that are currently, I mean, we'll just maybe move out of Richmond, say Kamloops or West Kelowna or pretty much anywhere in the province. Well, I think it's more of a Kelowna issue than West Kelowna. Well, I'm just thinking if people... are nervous or cautious or want like a tangible takeaway from this to say, okay, here's what I can do to potentially mitigate anything moving forward to my fee simple. Is there anything like, is it just, Hey, I'm going to sell my house and get out of the market and vote for different, different government. Um,

00:43:32 Thomas Isaac

uh, so I'm not laughing at your question. It's just, I laugh.

00:43:37 Matt Glen

laugh. Yeah.

00:43:41 Thomas Isaac

Don't worry about it. I'm trying to be polite. I said no. No, the reason I'm thinking is that, I mean, the reality is the individual is almost powerless in this situation. And this is why I keep calling on our public governments, both the provincial and the federal government. The federal government's got to step forward on this too. This is about the economy in British Columbia. And we are part of the federation after all. And so I don't know what to say to that question. I understand it's the core question for your listeners. So I ultimately believe there's only one answer to this. So here's my answer. I ultimately believe that at the end of the day, indefeasible title has to stay indefeasible as a title. Now, why do I say that? I say that because the alternative is bleak. It would mean that we would be the only jurisdiction in any of the Western economies. Were your indefeasible titles defeasible? I don't have to tell both of you, I know what you do and your expertise or any of your listeners, what that means. That is bleak is probably an understatement. So I believe that ultimately the courts will do the right thing and say, no, no, no, no. This was never the intention of Section 35. You know, reconciliation has got to be a two -way street. It's not a one -way street. We know this already. And in the meantime, it's a buying opportunity as the market slumps. I'm not blaming it all on the Cowichan decision, to be very clear. I think we're already in a market slump. It doesn't help. And I'll stand by that. I don't think somebody can debate that with me. It doesn't help. But I think there's opportunities right now. And I think people have to make that individual decision where they're at. I mean, I feel for people maybe towards retirement that were waiting to sell their home. I'm worried to see what happens in 26. The lenders have not been vocal about it. I think in some ways that's a good thing. The problem is that the province takes that as acquiescence. This is the problem in British government. We've had this for three decades. And again, I'm not blaming the current government alone. I've been saying this. nuance and subtlety with this government get you nowhere. If it's not directed, that's the problem. Is there somewhere you can look up to see where there's a claim?

00:45:54 Matt Glen

can look up to see where there's a claim?

00:45:56 Thomas Isaac

There's no one site, but on the Government of British Columbia website under Indigenous Relations, they have their claims page. And you can see where First Nations claim throughout the province. And that's actually a great resource. The Treaty Commission is a great resource. And the Federal Crown Indigenous Relations website, that's where we go, quite frankly, to get. where the claims... I feel like there's an app opportunity here for someone to fire up an app that you just type in your address and see how many... Unfortunately, that's a good idea.

00:46:18 Matt Glen

like there's an app opportunity here for someone to fire up an app that you just type in your address and see how many... Unfortunately,

00:46:22 Thomas Isaac

that's a good idea. I wish I didn't have to say that. That's actually a good idea. I mean, the problem is, though, is look, we can live with assertions of title. I want to be clear. We've lived under assertions of title. First Nations have a right to assert title. The issue is what is our public government doing to have a game plan on how we're going to get... to ultimate reconciliation. We don't have that and we haven't had it and we need that and we need it pronto and we need leadership statements from our government on what they're going to do to protect our markets. And it's not enough to say, well, we're going to file an appeal. Yeah. Yeah. Great. Good. We're in an emergency situation and I think it demands an emergency action. I mean, this is why we have governments is that when we have an emergency, I don't know what you guys are feeling, but, you know, I talk to a lot of people. I meet a lot of people every week across the country. Lately in British Columbia, I live in BC, but I've been meeting a lot of people in BC lately. There's a hungry need for leadership right now. I think people would welcome really clear, crisp leadership from Premier Eby right now. I mean, very genuinely, even towards him. We need that right now in this regards which party you vote for. There's a hunger right now. for crisp, clear leadership and guidance about where this province is going. That would be welcomed, I think, by everybody. And I think that answers a bit of the earlier question, except then it's up to people to call their MLAs and go, please give some clearer guidance. What should people be looking out for? Like, what's the next step? Like, what's the next thing that's going to hit the news? We are waiting for a decision from New Brunswick. Very different case, but ultimately dealing with the role of private property in Aboriginal title. That decision is coming very, very soon. So, and that'll be from an appellate court. Remember I said the lower court and the court of... Well, in New Brunswick, the superior court is the New Brunswick Court of Appeal. The next court after that is the Supreme Court of Canada. That decision is coming soon. Second, the Cowichan decision, waiting for the order to be settled. And remember, Montrose has a motion to be added as a party to that. And so I believe that motion needs to be heard first. I believe I could be wrong on that, but we need to settle that order in Cowich before we can be talking about an appeal and interveners and all that business. So that's what I'd be watching out there. My law firm is castles .com, C -A -S -S -E -L -S. People type in my last name, Isaac, I -S -A -A -C. They'll get my bio. We produce a fair amount of material. You can add your name to our mailing list. And look, I really thank both of you, by the way. I mean it very genuinely in being able to talk about these issues. I think we need to encourage civil dialogue, respectful dialogue to our Indigenous friends and to our non -Indigenous friends. So we've got to work our way through this. But we need to start talking the truth about how we're all going to live together and have a prosperous, it's one thing to live together, but if it isn't prosperous and it's not attracting capital. It's not going to be a very nice living arrangement. You know, like living with a spouse, no income coming in. It can be a little pesty. Nice when there's lots of cash flowing around. Well, no, but it is. We need to start looking at our province that way. And look, I get there's tension on our environment and that, but we live in a capitalistic world and First Nations also and Métis also have a right to economic sovereignty. So we better start figuring this. this out so but thank you by the way i really appreciate the opportunity i hope i wasn't too obtuse i tried to use a bit more plain language that i the doctor but thanks to both of you oh you were awesome yeah really appreciate it we'd love to have you on in the future once yeah we kind of know more about this obviously

00:50:16 Taylor Atkinson

you were awesome yeah really appreciate it we'd love to have you on in the future once yeah we kind of know more about this obviously.