On August 7, 2025, the Supreme Court of British Columbia released a significant decision on Aboriginal title in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490[Cowichan Tribes].
This blog post discusses how the court addressed the relationship between Aboriginal title and private property, discussing the practical and legal implications for Indigenous peoples, British Columbia, and Aboriginal law more broadly. 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 plaintiffs1 asserted Aboriginal title over approximately 1,846 acres of lands encompassing a traditional summer village of Tl'uqtinus on the south arm of the Fraser River, in what is now the City of Richmond, British Columbia, and to its surrounding lands and submerged waters. After 513 days of trial, the court decided largely in favour of the Cowichan Nation, finding that the plaintiffs had established Aboriginal title over a portion of the claim area (the "Cowichan Title Lands"). The Cowichan Title Lands are outlined in black in this map:
Key Outcomes
The court largely found in favour 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
Key Concepts: Aboriginal title and fee simple
A significant part of the Cowichan Tribes decision turns on the distinction between two concepts: Aboriginal title and fee simple.
- Aboriginal title. This is unique, constitutionally protected Aboriginal right held by an Aboriginal collective, which includes the right to exclusive use and occupation of the land, the right to determine how the land is used, and the right to enjoy the economic fruits of the land.4
- Fee simple. This is a form of property ownership, derived from the Crown's asserted ultimate ownership, that entitles the holder (for instance, a private party or a Crown entity) to exercise every conceivable act of ownership with respect to the land.5
The issue in Cowichan Tribes
Before British Columbia joined Confederation, Governor James Douglas "appropriated" lands, including the area at issue in Cowichan Tribes, to create reserve lands later on.6 Over several decades, beginning in 1871, Crown fee simple grants were issued over the whole of the area that Cowichan Nation claimed Aboriginal title to.7 Gradually, the federal Crown (including the Vancouver Fraser Port Authority), the City of Richmond, and various private parties acquired land in fee simple located in the Cowichan Title Lands. Cowichan Nation never consented to any of the Crown grants of fee simple interest.8
Once the Cowichan Nation had established Aboriginal title in the Cowichan Title Lands, the court had to grapple with the existing fee simple property interests in the area. It focused on the relationship between Aboriginal title and fee simple land interests, since some of the lands were held by Crown entities in fee simple.
Aboriginal title and fee simple (including private property) can coexist
Before Cowichan Tribes, the law was not settled about what happens to parcels of Aboriginal title lands that are also held in fee simple.9 Together, various cases suggested that Aboriginal rights and title are not absolute and must be considered in relation to the rights of others. Cowichan Tribes builds on, and refines, this emerging legal principle.
The court recognized that Aboriginal title and fee simple interests can coexist, but that the exercise of rights associated with these types of interests often conflicts.10 Historically, this conflict resulted in the exclusion of the Indigenous peoples from their lands, rendering them trespassers on their own territory.
The court firmly rejected the Crown's position that Aboriginal title and fee simple interests are fundamentally incapable of coexisting.11 Rather, the possibility of coexistence depends on the circumstances, including how the Indigenous community wishes to exercise Aboriginal title and how fee simple landowners wish to exercise their rights.
Cowichan Tribes clarified several complex legal issues, including that:
- Aboriginal title lies beyond British Columbia's land title system. The Land Title Act does not prevent Aboriginal title holders from challenging fee simple interests.12
- The Crown grants of fee simple in the Cowichan Title Lands to other third parties were made without proper authority (constitutional or statutory).13
- The Crown unjustifiably infringed Cowichan Nation's Aboriginal title when it transferred the land (by way of Crown grants) to third parties.14
- Fee simple interests in the Cowichan Title Area held by British Columbia and the City of Richmond are invalid and defective.15
- Courts must consider the importance of reconciliation in evaluating equitable defences available to landowners who hold fee simple interests in Aboriginal title lands.16
- Reconciling fee simple land interests with Aboriginal title requires a nuanced approach that considers Indigenous laws, common law, and equitable principles.17
Reconciling Aboriginal title and private property
Cowichan Nation did not challenge the validity of private property interests in the area or seek remedies against these private parties.18 Because of this, the court provided only general comments on their coexistence with Aboriginal title.
If the Cowichan Nation seeks remedies against private landowners in the future, the court was clear that this will be dealt with on a case-by-case basis. For now, the private landowners' fee simple interests continue to exist in the Cowichan Title Lands.19
British Columbia has a duty to "negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties," given prior occupation by the Cowichan Nation's ancestors, the constitutional nature of Aboriginal title, and the honour of the Crown.20
Cowichan Tribes is clear: British Columbia has a constitutional responsibility to facilitate the reconciliation of Indigenous land rights and fee simple land interests through negotiation, regardless of who owns those interests.21
What does this mean?
The court's ruling is a step forward toward reconciliation and justice for Indigenous peoples and highlights the complexities of reconciling Aboriginal title with the existing land title system.
Cowichan Tribes could have far-reaching implications for the recognition of Aboriginal title and the reconciliation of property rights in Canada. The full implications of the decision will unfold over time, especially as the case is being appealed.
This decision is an important step forward for Indigenous Nations whose lands were illegally taken up by the Crown. It sets a precedent for future cases, reinforcing the importance of acknowledging and respecting Indigenous connections to their traditional lands.
The decision sets out a clear framework for reconciling Aboriginal title and fee simple interests in land, including private property. The court's comments on the Crown's obligation to engage in negotiations to reconcile competing interests will hopefully set in motion new negotiations between the Crown and First Nations, particularly in British Columbia, where large portions of the province could be subject to Aboriginal title, given the sparsity of treaties.
We gratefully acknowledge JFK's 2025 Summer Student Devin Galway for his significant contributions as a co-authors of this post.
Footnotes
1. The plaintiff bands (Cowichan Tribes, Stz'uminus First Nation, Penelakut Tribe, and Halalt First Nation) represented, and were found to be, the successors of the 11 communities of the Quw'utsun Mustimuhw (the Cowichan) who historically occupied the claim area. Lyackson First Nation was also represented by the plaintiffs as a descendant of the Cowichan Nation; Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490 [Cowichan Tribes].
2. Cowichan Tribes at para 3724.
3. Cowichan Tribes at paras 3637-8.
4. Tsilhqot'in Nation v British Columbia, 2014 SCC 44 at para 121.
5. See e.g., Skeetchestn Indian Band and Secwepemc Aboriginal Nation v Registrar of Land Titles, Kamloops, 2000 BCCA 525 at para 72.
6. Cowichan Tribes at para 1838.
7. Cowichan Tribes at para 1838.
8. Cowichan Tribes at paras 2330, 2070.
9. Cowichan Tribes at para 2330.
10. Cowichan Tribes at para 2337.
11. Cowichan Tribes at para 2174.
12. Cowichan Tribes at para 2255.
13. Cowichan Tribes at para 3035.
14. Cowichan Tribes at para 3631.
15. Cowichan Tribes at para 3636.
16. Cowichan Tribes at para 3083.
17. Cowichan Tribes at para 3075.
18. Cowichan Tribes at para 43.
19. Cowichan Tribes at para 3588.
20. Cowichan Tribes at paras 3697, 2189.
21. Cowichan Tribes at para 3724.
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