VICTORIA — British Columbians were still reacting to the shock of the Cowichan Tribes’ Aboriginal title decision last August when the legal counsel for the winning side made a telling comment about the implications for private property owners.

There were about 150 owners of private property in the part of Richmond that B.C. Supreme Court designated as Aboriginal title for the Cowichan Tribes. Lawyer David Rosenberg, lead counsel for the nation, said, “I don’t think private property holder’s interests will be directly affected.”

In the event of a sale, “I fully anticipate — and this is me speaking again — that the seller or vendor will get what they are bargaining for, and the purchaser would also get what they are bargaining for,” Rosenberg told Jas Johal on CKNW.

However, he added an important caveat regarding the transaction: “It would be with the consent of the Cowichan Nation and it would be with some accommodation from the Crown to the Cowichan Nation.”

So the would-be buyer and the would-be seller would both need the consent of the Cowichan Nation before proceeding. And the government would probably have to accommodate the nation, by, say, paying compensation for the market value of the property.

Those presumed consequences are hard to reconcile with Rosenberg’s suggestion that private property holders would not be affected by the court’s finding of Aboriginal title.

Rosenberg framed his comments as his own opinion — “this is me speaking again.”

Yet, it was the stated opinion of the winning counsel in the case, delivered fresh on Aug. 11, just four days after the decision came down.

The opinion carried a lot of weight with landowners, not least Montrose Properties, private holder of some 1.2 square kilometres of land in the designated area.

Montrose included Rosenberg’s comments as part of the legal submissions in its effort to reopen the Cowichan case on grounds that it was excluded from the proceedings and not advised that its interests were at stake.

Read the full article at the Vancouver Sun: Lawyer’s opinion may not sway Aboriginal title case, but it hurts B.C. landowners