Courts Continue To Favour Negotiation Over Litigation To Resolve Major Aboriginal Rights Issues

The British Columbia Supreme Court recently released Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490, a landmark Aboriginal title and rights judgment.

The Cowichan Tribes decision includes a number of important findings about the remedies available in Aboriginal title cases and the role of remedies, which is the focus of this blog post.

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

Remedies – The Role of Declarations

The court emphasized the importance of declarations in changing the status quo and advancing reconciliation.⁴ These declarations are not just symbolic; they serve as a corrective measure, highlighting breaches of Aboriginal and Treaty rights by the Crown⁵ and are intended to foster productive dialogue and negotiation between the parties.

Contrary to much of the media reporting to date, the court's declaration of Aboriginal title in this case does not in itself displace fee simple title: fee simple interests can exist on Aboriginal title lands.⁶ The court instead declared that the honour of the Crown requires the Crown to negotiate the reconciliation of the overlapping interests in the land, that is, the overlapping Aboriginal title and fee simple title interests.⁷ In doing so, the court made clear that once Aboriginal title is established, the "usual remedies" for breaches of interest in land are available, subject to adaptation accommodating the special ("sui generis") nature of Aboriginal title and the Crown's fiduciary obligation to the Aboriginal title holder.⁸

Implications

The judgment reflects a continuing trend in courts favouring negotiation over litigation to resolve major Aboriginal rights issues. Justice Young wrote here that "litigation is the antithesis of [the] healing environment" required to advance reconciliation and redress of past harms.⁹ The court noted that negotiation continues to be the preferred process to advance reconciliation.

The court was also forced to contend squarely with the conflict between established Aboriginal and Treaty rights and title. Justice Young acknowledged the overlapping Indigenous rights and claims at issue in this case, including the existence of Tsawwassen's modern Treaty and Musqueam's claim that the Cowichan Nation claim area is part of its traditional territory.¹⁰ The court held that the declaratory relief granted reflected the possibility that courts may make findings (and declarations) that conflict with modern treaties.¹¹ In this case, the court found that Tsawwassen's modern Treaty did not give Tsawwassen's interests priority over the Cowichan Nation's established Aboriginal title and fishing rights, despite recognizing that the declaration issued by the court may impact Tsawwassen's Treaty fishing right.¹²

This finding by the court again highlights the value of negotiated solutions over litigation to resolve complex Aboriginal rights issues. Justice Young remarked that nation-to-nation discussions and negotiated settlements are necessary not just for Indigenous-Crown relationships but also for reconciling overlapping claims by Indigenous Nations:

The fact is other Coast Salish groups have asserted and/or established claims, rights and interests around the lower Fraser River, as that area has been frequented by many Indigenous groups since time immemorial. The various claims and rights in that area, including the Cowichan Nation's, reflect that reality. No doubt many nation-to-nation discussions and negotiations are to come with respect to land and resources in the south arm of the Fraser River.¹³

This landmark decision is a significant step forward in recognizing and affirming Aboriginal title and rights in Canada. However, the full implications of the decision will unfold over time, especially as the case is being appealed. If the parties to this case move into negotiations, it will be telling to observe which parties are at the negotiation table and how the Crown approaches the issue of overlapping claims by the Indigenous communities in this case.

JFK Blog Posts 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: A Significant Development on Aboriginal Title and Submerged Lands
• 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 paras 3554, 3628-9, 3637, 3721.

5. Cowichan Tribes at paras 3534, 3544.

6. Cowichan Tribes at para 3589.

7. Cowichan Tribes at paras 43-4, 3584, 3586, 3589-91, 3692-4.

8. Cowichan Tribes at paras 2205-6.

9. Cowichan Tribes at para 3727.

10. Cowichan Tribes at para 3547.

11. Cowichan Tribes at para 3547.

12. Cowichan Tribes at para 3548.

13. Cowichan Tribes at para 3549.

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