The Cowichan decision confirms Aboriginal title in an urban area, with significant implications for fee simple landowners and the Crown across British Columbia
Introduction
On August 7, 2025, the BC Supreme Court issued a long-awaited decision in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490.1 The case involved a claim by the Cowichan (Quw'utsun mustimuhw)2 for about 1,846 acres of Aboriginal title and fishing rights, both in the south arm of the Fraser River in Richmond. The Court sat for 513 days of trial – likely the longest trial in Canadian history – and the Court's decision consists of some 3,728 paragraphs over 863 pages.
This case is unique in several respects. Perhaps most importantly, it is the first Aboriginal title claim decided in an urban context where the title area claimed includes lands held by private landowners in fee simple. Prior cases such as Tsilhqot'in Nation v. British Columbia, 2014 SCC 44,3 related to a more rural context and expressly excluded claims to private lands.
In this case, the Court found that the Cowichan had successfully proved Aboriginal title to a portion of the claim area, in significant part relating to a former village site known as Tl'uqtinus on the south arm of the Fraser River on the southern shore of what is now known as Lulu Island (across from Tilbury Island). In reaching its decision, the Court clarified that:
- The Province has no jurisdiction to extinguish Aboriginal title, and any grants of fee simple interest to third parties therefore do not and cannot displace or extinguish Aboriginal title;
- Similarly, Aboriginal title is not subject to the provincial land title system, which governs fee simple interests in private lands; and
- The fact that the Cowichan had been dispossessed of their lands, which had been promised to them but instead granted to settlers and eventually vested in third parties (including the City of Richmond and the Vancouver Fraser Port Authority) in what became an urban context, was relevant, but did not operate as a bar to the Cowichan establishing Aboriginal title.
The Court also declared that the Cowichan possessed an Aboriginal right to fish for food in the south arm of the Fraser River, protected under section 35(1) of the Constitution Act, 1982, and that Crown actions unjustifiably infringed this right.
The Province has already announced an intent to appeal the decision and seek an interim stay.
Regardless of the outcome of any appeal, this decision is a significant landmark in the case law on Aboriginal title in confirming the potential for it to exist in a context that requires the courts to directly grapple with the existence of private property rights in developed, urban areas. If the Court's reasoning in the case is upheld, further consequential effects could be felt across BC, for example uncertainty regarding fee simple interests, placing a renewed focus on the Crown to engage with Indigenous peoples on the question of unresolved Aboriginal title claims, within city limits and beyond.
Meeting the test for Aboriginal title
To prove Aboriginal title, a claimant must demonstrate that at the time British sovereignty was asserted in Canada (1846) the claimant had sufficient and exclusive occupation of the lands at issue, pursuant to the test provided by the Supreme Court in Tsilhqot'in Nation and Delgamuukw v. British Columbia, [1997] 3 SCR 1010.4
After examining the documentary and archival record, and hearing Indigenous oral history and traditional evidence and expert evidence on various topics including archaeology and cartography, the Court concluded that the Cowichan historically moved from Vancouver Island and occupied Tl'uqtinus in summer months. This seasonal occupation of a permanent village was found to be sufficient occupation to ground Aboriginal title, including to a portion of beach lands now submerged as a result of erosion. In other words, the decision reaffirms the instruction from Tsilhqot'in Nation that a claimed area need not be inhabited year-round for occupation to be sufficient.
The Court also clarified that there is no general requirement of present occupation to prove Aboriginal title, meaning that Indigenous peoples may legitimately advance title claims to areas the contemporary community may have never occupied.
Aboriginal title and private lands
The defendants argued, among other things, that the Cowichan's Aboriginal title had been extinguished or "displaced" by fee simple grants. The claim area overlapped several fee simple interests held by different private landowners. Given this, the defendants argued, the mere presence of an "incompatible" fee simple interest makes proving Aboriginal title impossible, citing various enactments including sections 23 and 35 of the BC Land Title Act, RSBC 1996, c 250 which provide assurances with respect to indefeasibility of title.
No Provincial authority to grant fee simple interests
The Court noted that the history of the specific lands at issue was important because they had been "appropriated" or tentatively set aside as reserve lands for the Cowichan around 1860 but were instead sold to new settlers.
The Court found that a solemn promise had been made to the Cowichan in respect of the lands. When BC entered Confederation in 1871, the effect of section 13 of the BC Terms of Union was to preserve and extend the promised setting aside of lands, limiting the Province's ability to sell the land to any others without first dealing with the Cowichan interest. For this reason, the Court concluded that BC "exceeded its constitutional authority each time it issued a Crown grant of fee simple interest in the Cowichan Title Lands."5
Because of this constitutional constraint and certain language in land statutes at the time prohibiting land grants over "appropriated" lands, the Court reasoned, several of the fee simple grants made to private individuals had been made without statutory or constitutional authority.
No provincial authority to extinguish Aboriginal title
The Court also referred to a finding by Chief Justice Lamer from Delgamuukw to the effect that the Province has never had the constitutional authority to extinguish Aboriginal title. Following the enactment of s. 35 of the Constitution Act, 1982, Aboriginal rights and title cannot be unilaterally extinguished by either level of government – only justifiably infringed. Prior to 1982 Aboriginal title could be extinguished by federal statute if language demonstrating a "clear and plain intent" to do so was used.
Given the finding in Delgamuukw respecting the Province's authority, the Court reasoned that, even if the relevant legislation of the day had contained the required "clear and plain intent" to extinguish Aboriginal rights – which it did not – BC lacked the jurisdiction to extinguish Aboriginal rights in any event.
In this regard, the Court described Aboriginal title as "a senior interest in land vis-a-vis the fee simple titles which derive from the Crown grants"6 given its constitutional nature, rooted in prior occupation.
Co-existence of Aboriginal title and fee simple
The Court concluded that Aboriginal and fee simple title can co-exist, noting that neither species of title are absolute. However, it ultimately held that "the exercise of one form of title must yield to the other so long as they are both present on the same parcel of land."7 The Court also found that "where Aboriginal title and fee simple interests exist in the same land, the respective interests must be addressed within the broader framework of reconciliation. This is an exercise which engages the Crown, and which must be done with regard to the particular circumstances and interests at play."8
This result and reasoning suggests that, although a single parcel of land may be subject to both Aboriginal title and a private fee simple interest, when either party wishes to exercise rights associated with title or fee simple (e.g. development), a conflict may emerge that must be reconciled, whether at that time or prior to such a conflict arising. In calling for negotiations around this issue, the Court also appeared to suggest that the Crown ought to act to proactively address any potential for conflict in advance, within the broader framework of reconciliation.
In terms of the scope of the potential overlap between Aboriginal and fee simple title in BC, the Court made the following striking comments:
In my view, Aboriginal title currently lies beyond the land title system in British Columbia and the LTA Land Title Act] does not apply to it. It therefore cannot be said that a registered owner's title under the LTA is conclusive evidence that the registered owner is indefeasibly entitled to that land as against Aboriginal title holders and claimants.9
The intention behind the land title system in this province is to provide certainty and security with regard to land titles. My conclusion on the inapplicability of the LTA to Aboriginal title does not otherwise detract from the notion that registered interests are, subject to prescribed exceptions, indefeasible under that legislation.10
Notably, the Court appeared to acknowledge the potential for broader consequences to land titles in BC arising from this reasoning, specifically commenting that its determination that BC's land title system does not "extinguish nor bar an action for recovery of land for Aboriginal title holders is significant because it emphasizes the fact that there is a lot of unfinished business in this province."11
Unjustified infringement and ongoing wrong
The Court found that the granting of fee simple interests in the Cowichan's Aboriginal title area was not only unjustified but also emphasized that it resulted in ongoing "profound adverse consequences" – the dispossession of the Cowichan people from their homeland – which continue to this day.12 As a result, relying on the Saskatchewan Court of Appeal's decision in Peter Ballantyne Cree Nation v. Canada (Attorney General), 2016 SKCA 124, the Court found the presence of such fee simple interests is akin to an ongoing trespass by a physical object on the lands and therefore "gives rise to a fresh cause of action each day it continues."13 As a result, the Cowichan's claim could not be barred by a limitation period. In this case, the Court found in any event that limitation periods from historical legislation did not apply to the Cowichan's claim.
The Court's characterization of fee simple interests on Aboriginal title lands as an "ongoing wrong" may have significant implications for future claims by limiting the availability of any limitations defence. In summary, the Court reasoned that even if limitations legislation did apply to certain relief requested by the Cowichan (the Court found it did not), then the Cowichan's claim would not be statute-barred.
Declaration of title and invalidity of certain fee simple grants
Ultimately, the Court issued a declaration of Aboriginal title in favour of the Cowichan despite its potential effect on private landowners who were not parties to this litigation, concluding that "the existence of privately-held fee simple estates on the Cowichan Title Lands does not preclude, and should not preclude, a declaration of Aboriginal title."14 Notably, the Cowichan had not challenged the validity of third-party fee simple interests except for those held by Canada and Richmond.
The Court also granted a declaration that Canada and Richmond's fee simple interest in the Cowichan's Aboriginal title area were invalid, although it suspended that declaration for 18 months (during which time, the Cowichan, Canada, and Richmond can make "necessary arrangements"). With respect to the other fee simple interests in the area, the Court reasoned that arguments could be made in the future if a dispute arose, finding further support in Wolastoqey Nations v. New Brunswick and Canada et al, 2024 NBKB 203 for the notion that the Crown is under an obligation to negotiate and reconcile the relevant interests.15
Therefore, although the Cowichan did not seek to directly invalidate fee simple interests held by private landowners, the Court's declarations regarding the interaction between Aboriginal title and fee simple interests nonetheless introduce some uncertainty. While private fee simple interests may technically remain valid following a declaration of title, their continued existence and scope could be subject to future challenge or modification through litigation or negotiation, and the precise relationship between these interests and Aboriginal title will need to be further clarified in the relevant context.
Conclusion
As noted, the Court's decision in this case was made in a unique context and may have implications for fee simple title throughout BC, particularly in the context of urban and privately-held lands. While the lands at issue in this case were unique in a sense in that they formed part of lands "appropriated" for and promised to the Cowichan prior to Confederation (and therefore subject to the restrictions in Article 13 of the BC Terms of Union), the Court's reasoning that BC has never possessed the jurisdiction to extinguish Aboriginal title, before or after Aboriginal rights were constitutionalized in 1982, seems at odds with the purported certainty associated with the current Torrens system of private land ownership in BC.
The Court's reasoning on the potential for Aboriginal and fee simple title co-existing and being reconciled and what that means for private landowners and the Crown treads new ground in this area of law. If, for example, the Court's reasoning holds that prior BC land grants are inherently invalid because the Province's laws can have no effect on Aboriginal title, then the decision may well have broader implications for privately held lands in other contexts across BC.
The Court made several closing comments regarding "the process of healing relationships that required public truth sharing, apology and commemoration that acknowledges and redresses past harms," and the antithesis of such a healing environment: litigation.16 Coupled with the comments noted above regarding "a lot of unfinished business in this province"17 these final words from the Court in some ways echo those of Chief Justice Lamer in Delgamuukw regarding the "human costs" of that trial, emphasizing the need for negotiations aimed at reconciliation because "Let us face it, we are all here to stay."18
Footnotes
1. Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490 [Cowichan].
2. The modern day successor groups of the Cowichan are Cowichan Tribes, Stz'uminus First Nation, Penelakut Tribe, Halalt First Nation, and the Lyackson.
3. Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 [Tsilhqot'in Nation].
4. Delgamuukw v. British Columbia, [1997] 3 SCR 1010 [Delgamuukw].
5. Cowichan, supra note 1 at para 2081.
6. Ibid at para 2189.
7. Ibid at para 2205.
8. Ibid at para 2190.
9. Ibid at para 2259.
10. Ibid at para 2260.
11. Ibid at para 3550.
12. Ibid at para 2904.
13. Ibid.
14. Ibid at para 3543.
15. Ibid at para 3590.
16. Ibid at para 3727.
17. Ibid at para 3550.
18. Delgamuukw, supra note 4 at para 186.
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