Quw’utsun Nation Decision Creates Opportunity for W̱SÁNEĆ
In February of 2025, the Chiefs of Tsartlip and Tseycum First Nations, the Minister of Crown-Indigenous Relations, and the Minister of Indigenous Relations and Reconciliation signed ŦE,ITḴEN,IST I SȽEW̱ ÁL,NOṈET SĆȺ,Í (Moving Forward and Speaking the Truth and Peace of Mind at Last) Joint Statement, recognizing that W̱SÁNEĆ Nation is the beneficiary of and successor to the North Saanich and South Saanich Treaties of 1852. This monumental statement, which validates W̱SÁNEĆ Nation’s oral history and worldview in relationship to the Treaties for the first time, came after years of hard work by W̱SÁNEĆ Leadership Council (W̱LC), British Columbia and Canada.
ḰEḰEYIȽĆ (Arbutus)
Similarly, Quw’utsun Nation’s recent landmark decision, Quw’utsun Nation v. Canada, recognized their Aboriginal Title for the first time. There, the Supreme Court of BC held Quw’utsun Nation holds Aboriginal Title to almost 7.5 square kilometres of land including the traditional village of Tl’uqtinus and its surrounding lands, that the Crown did not have jurisdiction to sell or appropriate these lands to settlers, and that, consequently and with some small exceptions, Canada and Richmond’s fee simple titles and interests in the lands are “defective and invalid.”
In the process of making its decision, the Court found the Plaintiffs – including Quw’utsun (Cowichan) Tribes, Stz’uminus First Nation, Penelakut Tribe, Halalt First Nation, and others both on their own behalf and on behalf of all descendants of Quw’utsun Nation – are the “descendants of the historic Cowichan people” and their modern-day successors. With that as their foundation, the Court further found that the Plaintiffs established historic use of the lands at issue and that the Crown sold or otherwise allocated the entirety of the land at issue to settlers without Quw’utsun’s knowledge.
The Court held that the Crown sold Quw’utsun’s land without first addressing their interests in the land – in violation of Article 13 of the BC Terms of Union.
As a remedy, the Court held that BC must work to reconcile the Crown’s sale and appropriation of the land with Quw’utsun’s Aboriginal Title.
While reached in different ways, the outcomes achieved by W̱SÁNEĆ’s ŦE,ITḴEN,IST I SȽEW̱ ÁL,NOṈET SĆȺ,Í and the outcome of Quw’utsun Nation v. Canada run parallel and support one another. Where the former was achieved through negotiation, the latter was achieved through litigation. Where the former happened quietly, the latter has become a global talking point. Nonetheless, in each, the next steps are clear: the Crown and BC must reckon with what this recognition of Aboriginal Title means going forward – for Quw’utsun for W̱SÁNEĆ, for the Crown and BC, and for the third-party settlers living on the land. Certainly, in the case of Quw’utsun – barring reversal of the decision upon appeal – and hopefully in the case of W̱SÁNEĆ, this reckoning will happen at the negotiating table.
However, there is one key difference between the circumstances of Quw’utsun and W̱SÁNEĆ that could have a significant impact on negotiations. In the Quw’utsun case, the members of the Quw’utsun Nation came together to prove they together are the descendants of the historic Quw’utsun people and consequently are the legitimate holders of Aboriginal Title, W̱SÁNEĆ have not come together in the same way. Instead, only Tsartlip and Tseycum First Nations are signatories to ŦE,ITḴEN,IST I SȽEW̱ ÁL,NOṈET SĆȺ,Í.
This current lack of a united front could prove to be an obstacle in negotiations, which, former MLA and current Director of Intergovernmental Relations and Negotiations for W̱JOȽEȽP Adam Olsen warns, are often thwarted by the Crown. “Too often,” he says, “negotiations stall because the Crown refuses to move beyond minimal concessions.”
Negotiations are likely to be challenging in these cases, given the extent to which the acknowledgment of Aboriginal Title in ŦE,ITḴEN,IST I SȽEW̱ ÁL,NOṈET SĆȺ,Í and Quw’utsun Nation v. Canada conflicts with the fee simple interest held on the same land by colonial entities – such as the City of Richmond – and the countless families who built their lives there.
While the Court’s findings in Quw’utsun Nation v. Canada make it clear that the grant of fee simple interest to these entities and individuals was invalid, the finding does not clearly establish how to move forward in a way that acknowledges Aboriginal Title without upending the lives of the countless people who currently live on these lands. Further, there are currently no government policies to guide this type of decision. Thus, it will take significant negotiation to determine how to move forward in a way that adequately honors Aboriginal Title.
Despite the challenge, negotiation – rather than litigation – is the preferred outcome. As Olsen wrote, “The best way to protect private property rights, and create certainty for all, is to resolve Aboriginal Title across the province through negotiation, not litigation. That means committing the resources, political capital, and imagination to reach agreements.”
To ensure the best possible outcome in negotiations regarding W̱SÁNEĆ’s Aboriginal Title, W̱LC hopes all W̱SÁNEĆ Leaders will create a united front, just as the Plaintiffs did in the Quw’utsun Nation case. W̱LC believes this will strengthen W̱SÁNEĆ’s position in negotiations, make it easier to demonstrate the extent of W̱SÁNEĆ’s Aboriginal Title, and prepare W̱SÁNEĆ to head to Court as Quw’utsun Nation did if necessary.
The position W̱SÁNEĆ and Quw’utsun are now in has been a long time coming, making this moment a powerful opportunity to come together and create long-lasting change. In the words of Olsen, the Quw’utsun Nation decision is “not an outlier but part of a legal trajectory the Crown has been warned about for decades.” He added the Crown can no longer delay directly reckoning with Aboriginal Title, as it is no longer a “legal abstraction.” As jurisprudence advances, everything from infrastructure projects and resource development to land-use planning and community relations will be implicated. “Every day the province delays,” says Olsen, “the financial and political costs rise. The Attorney General’s office does not have another 150 years of legal runway ahead of them.”
Through the ŦE,ITḴEN,IST I SȽEW̱ ÁL,NOṈET SĆȺ,Í, W̱SÁNEĆ achieved recognition of rights and title mirroring those achieved by the Quw’utsun (Cowichan) Nation in Quw’utsun Nation v. Canada. With such a major achievement in hand and the momentum of the Quw’utsun Nation case advancing Indigenous rights throughout BC, there is an opportunity for W̱SÁNEĆ to come together to push forward recognition of W̱SÁNEĆ’s rights and title.
W̱LC looks forward to working together to explore this pivotal moment to further the interests of W̱SÁNEĆ, reclaim stewardship of the land, and create a future where all W̱SÁNEĆ can flourish once again.
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