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On August 7, 2025, the British Columbia Supreme Court delivered a significant ruling in the case of Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490. This decision, which involved complex issues of Aboriginal title and rights, has far-reaching implications for Indigenous communities across the country.
In this post, we address the decision's treatment of Aboriginal fishing rights.
This is one of a series of blogs about the Cowichan Tribes decision. A complete list of blogs in this series is linked at the end of this post.
The Case at a Glance
The plaintiffs, successors of the historic Cowichan Nation, sought declarations of Aboriginal title over approximately 1,846 acres of land, including a traditional summer village on the Fraser River's south arm, now part of Richmond, British Columbia. They also sought a declaration for an Aboriginal right to fish for food on the south arm of the Fraser River.1 The case, which began in 2014, was a lengthy and complex legal battle with six defendants: Canada, British Columbia, the City of Richmond, the Vancouver Fraser Port Authority, Tsawwassen First Nation, and Musqueam Indian Band.
Key Outcomes
The court largely found in favor of the Cowichan Nation, granting six declarations including Aboriginal title to a portion of the claimed lands and an Aboriginal right to fish for food in the south arm of the Fraser River.2 The court found that the Crown had unjustifiably infringed Cowichan Nation's Aboriginal title through land grants to third parties, and as such the court declared that Canada and Richmond's fee simple titles and interests (except for an area known as the YVR Fuel Project Lands) are invalid. The court suspended this declaration for 18 months to allow the parties to negotiate an orderly transition of the lands.3
Aboriginal right to fish
The court affirmed the Cowichan Nation's Aboriginal right to fish for food in the south arm of the Fraser River. This decision was based on the application of the Van der Peet test, which requires demonstrating that the practice was integral to the distinctive culture of the Indigenous nation prior to European contact and that the claimed modern right is connected to, and reasonably regarded as a continuation of, the pre-contact practice. The court concluded that the Cowichan Nation met this test as it had gone to significant lengths to maintain its fishing practices despite significant colonial restrictions.4
The court dismissed arguments that the Cowichan Nation had only fished in the south arm of the Fraser River with the permission of Musqueam, Tsawwassen or other Indigenous Nations.5 The court concluded that in pre-contact times the Cowichan and Musqueam Nations coexisted and that the Cowichan Nation did not require permission to exercise its fishing practices.
The court also declined to limit the right to fish either temporally or to specific species, meaning the Cowichan Nation can fish for food at any time and for any species in the south arm of the Fraser River.6 Relying on R. v Nikal,7 the court concluded that in this case the Aboriginal right to fish for food includes the right to determine which species to fish, and when.8
Conclusion and Future Implications
The court's decision underscores the importance of judicial recognition of Aboriginal rights, which, while inherently held by Indigenous peoples, are practically easier to exercise once recognized by the courts. This ruling allows Cowichan Nation citizens to resume fishing in the south arm of the Fraser River, a practice that had been disrupted by colonial regulations. The decision also highlights the need for flexibility in legal tests to account for the impact of colonialism on Indigenous practices, as noted by the court in its discussion of the continuity element of the Van der Peet test.
The court's refusal to limit the right to fish to specific species or seasons also ensures that the Cowichan Nation can exercise their judgment in fishing practices, maintaining the flexibility and meaningfulness of their constitutionally protected rights.
The Cowichan Tribes' case is a landmark decision that not only affirms their Aboriginal right to fish but also sets a precedent for how courts may approach similar claims in the future. While the decision is currently under appeal by British Columbia, its implications for Aboriginal law and the recognition of Indigenous rights are profound and may ultimately be considered by the Supreme Court of Canada.
Footnotes
1 Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490 at paras 1-2 [Cowichan Tribes].
2 Cowichan Tribes at para 3724.
3 Cowichan Tribes at paras 3637-8.
4 Cowichan Tribes at para 3489.
5 Cowichan Tribes at para 3471.
6 Cowichan Tribes at paras 3505-3509.
7 R v Nikal, 1996 CanLII 245 (SCC) at para 104.
8 Cowichan Tribes at para 3506.
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