On August 7, 2025, the British Columbia Supreme Court released a significant decision on Aboriginal title in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490.
This case has profound implications for Aboriginal title, particularly concerning lands submerged by water.
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 Title Over Submerged Lands
Like many coastal Indigenous communities, the Cowichan Nation has distinctive water-based practices and cultural values. On this basis, the Cowichan Nation asserted Aboriginal title not only over drylands, but also to submerged lands.
To date, the law on Aboriginal title in submerged lands has been unsettled. The court considered carefully the Cowichan Nation's water-based or water-adjacent practices, including: the intertidal and fluvial space as a harbour to launch and land canoes;4 cleaning and processing fish along the shoreline immediately adjacent to the village;5 cold-water bathing;6 and waterfront pit cooking.7 The court also emphasized that there had been erosion of drylands (for example, waterfront beaches and foreshores) and areas that were once dry are now covered by water.8
The court found that the Cowichan Nation had established Aboriginal title to a narrow portion of the claimed submerged lands over which they had a clear history of direct use – specifically, the portion that was dryland in 1846 but, due to erosion, is now covered by water. The court held that Cowichan Nation's Aboriginal title hugged the shoreline and would not interfere with public rights of navigation to an unreasonable extent, if at all.9
Implications
The court's recognition of Aboriginal title over submerged lands is significant. Despite only declaring Aboriginal title to a narrow strip of submerged land based on the evidence, the court did not foreclose a more expansive application of Aboriginal title to lands submerged by water.10
Cowichan Tribes opens up an important opportunity for coastal First Nations to draw on their oral histories regarding waters and articulate their water laws to assert Aboriginal title to submerged lands.
There remain many questions to be answered on this issue, including how territorial aquatic Aboriginal title exists with the public right of navigation and fishing; how the Crown may justifiably infringe an Aboriginal right to submerged land; and what incidental rights or opportunities arise for First Nations that hold Aboriginal title to submerged lands.
It will likely take many years to fully appreciate and understand the full implications of this decision as the decision is being appealed.
We gratefully acknowledge JFK's 2025 Summer Student Andrew Ambers a for his significant contributions as a co-author of this post.
JFK Blog Series about Cowichan Tribes
Interested in learning more? Here are JFK's other blog posts about the Cowichan Tribes decision:
- Landmark Decision in Cowichan Tribes Case
- Cowichan Tribes: Courts Continue to Favour Negotiation Over Litigation to Resolve Major Aboriginal Rights Issues
- Cowichan Tribes: Insights on Establishing Aboriginal Title
- In Landmark Cowichan Tribes Decision, BC Supreme Court Addresses Coexistence of Aboriginal Title and Private Property
- Cowichan Tribes: Court Affirms Flexible Approach to Aboriginal Right to Fish
- Cowichan Tribes: Who holds Aboriginal rights and title?
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 1629.
5. Cowichan Tribes at paras 1631, 1644.
6. Cowichan Tribes at para 1632.
7. Cowichan Tribes at paras 1632, 1644.
8. Cowichan Tribes at para 1649.
9. Cowichan Tribes at paras 1627, 1653.
10. Cowichan Tribes at para 1652.
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