Recently I described how, beginning in 1888, B.C. ignored a decision of the highest court in the British Empire that forbade provinces from using land that was subject to “Indian title” as a source of revenue until that title had been ­extinguished by treaty.

We are living with the consequences of that decision and its aftermath.

The Colony of British Columbia could have made treaties, but did not. After B.C. became a province of Canada in 1871, only Ottawa could do it.

But until the early 1990s B.C. opposed all federal attempts to initiate a treaty process in the province, and Ottawa’s advocacy was tepid.

The issue in the Cowichan Tribes case can therefore be described as follows: Since B.C. joined Canada in 1871 it has been constitutionally unable to extinguish Aboriginal title directly, for example by treaty or legislation.

Has it also been unable to do so indirectly, such as by ignoring the title issue and simply granting land to individuals and corporations without taking possible Aboriginal title into account? Because that is what B.C. did.

If the Supreme Court confirms the recent decision in favour of the Cowichan Tribes, the result will be that there will be land here that has been granted to third parties, but that is also subject to unextinguished Aboriginal........

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