The British Columbia Supreme Court recently released Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490, a landmark Aboriginal title and rights judgment.
In this post, we address the decision's approach to proof of Aboriginal title.
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 the 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
The Court's Approach to Proof of Title
A key aspect of the court's decision was its approach to proving Aboriginal title. The court found that the Cowichan Nation demonstrated sufficient occupation of the summer village site through regular use, management, and cultivation of the land as part of their traditional way of life. Importantly, the court recognized that the use of a seasonal village could still constitute sufficient occupation for establishing Aboriginal title, emphasizing that permanent structures and regular, annual travel to the village communicated ownership. 4
The court's analysis of exclusive occupation was more complex due to the presence of multiple First Nations in the surrounding region, including the Musqueam Indian Band and the Tsawwassen First Nation. For instance, the Musqueam claimed a historic hunting and harvesting camp on the southwestern portion of Lulu Island and that it had regulated entry into the region.5 Despite these complexities, the court found the weight of the evidence demonstrated the Cowichan Nation's intention and capacity to exclusively control their village.
Conclusions and Future Implications
One of the central questions in the proof of Aboriginal title is whether such claims must be resolved on a site-specific or territory-wide basis. In Tsilhqot'in v. British Columbia, the Supreme Court of Canada expressly endorsed a territorial approach, recognizing Aboriginal title over a large tract of land (1750 square kilometers), emphasizing that claimants need not have used the land intensively to prove sufficient occupation.[6] The Cowichan Tribes decision, however, focused on a detailed consideration of the borders of the village site and the extent of regular use of the surrounding area.7
As such, some may read the Cowichan Tribes decision as a return to a site-specific approach to Aboriginal title claims. However, as a matter of law, Cowichan Tribes does not necessarily depart from the territory-based approach endorsed in Tsilhqot'in. The site-specific analysis is at least in part a product of the limited scope of the Cowichan Nation's claim and the court appeared cautious not to foreclose a territorial approach.8
The judgment also raises novel questions regarding shared territories and overlapping claims of Aboriginal title. It remains unclear how to reconcile multiple communities' claims that overlap, especially when one presents evidence based on site-specific use and another on territorial use. The court did not address the possibility of jointly held Aboriginal title for lands historically co-occupied by multiple Nations, leaving this issue unresolved.
Given the complex nature of proving Aboriginal title, it is likely that the Cowichan Tribes decision will be appealed to the British Columbia Court of Appeal and potentially the Supreme Court of Canada. The appeal process could take several years, and absent a negotiated solution, the legal landscape regarding Aboriginal title may continue to evolve.
We gratefully acknowledge JFK's 2025 Summer Student Andrew Ambers his significant contributions as a co-author of this post.
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 1245.
5 Cowichan Tribes at para 25.
6 Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 at para 56.
7 Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 at para 2.HH
8 See, e.g., Cowichan Tribes at para 546.
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