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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 the appropriate rights holder for Aboriginal 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
The rights holder for Aboriginal rights and title
Determining the proper Aboriginal rights and title holder is a complicated but important task. The task should begin within Indigenous communities and according to their own histories and laws. Cowichan Tribes affirms the significance of determining the proper rights holder for s. 35 rights, including who can represent the rights holder and how to connect a historic collective to its successor community as a modern rights holder. Identifying the proper rights holder is ultimately about delineating who is entitled to the rights held by the people of an Indigenous collective.
Background on Rights Holders
The nature of determining the proper title holder has been addressed in Delgamuukw v. British Columbia and Tsilhqot'in v British Columbia. The plaintiffs in Delgamuukw were 51 hereditary chiefs (39 Gitksan and 12 Wet'suwet'en) who brought an action for Aboriginal title on their own behalf and on behalf of all members of the Gitksan and Wet'suwet'en Houses.4 The Supreme Court of Canada clarified that Aboriginal title is held communally "by all members of an aboriginal nation."5
As a live issue in Tsilhqot'in, clarification was provided on the matter of deciphering the proper rights holder. Both the trial and appeal courts rejected that Aboriginal title is held at a band level in the context of the Tsilhqot'in.6 Because of the communal nature of land ownership and the Aboriginal perspective of the Tsilhqot'in, the trial judge found that the proper rights holder "is the community of Tsilhqot'in people."7 Affirming the importance of Indigenous Nations' own histories, laws, and cultures, the Court of Appeal further noted that "the definition of the proper rights holder is a matter to be determined primarily from the viewpoint of the Aboriginal collective itself"8 and concluded that "While band level organization may have meaning to a Canadian federal bureaucracy, it is without any meaning in the resolution of Aboriginal title and rights for Tsilhqot'in people."9
The Rights Holder in Cowichan Tribes
In Cowichan Tribes, the court found the "Cowichan Tribes, Stz'uminus, Penelakut, Halalt and Lyackson are the modern-day successor groups to the Cowichan as an Aboriginal people and the proper claimant and rights holder."10 By considering the historical community of the Cowichan Nation and its distinct identity through oral histories, historical records, ethnographic records, and expert opinions, the court concluded the plaintiff bands are the successor groups of the 11 local groups that existed in the 1790s and 1846.11
In its analysis, the court considered various matters, including the distinct collective identity,12 how the 11 groups lived together in the same geographic area,13 and the common way of life.14 The court addressed a common way of life through shared language,15 customary dwellings,16 social organization for seasonal harvesting,17 customary law,18 and canoeing practices and travel.19 From the operations of warfare and how community travelling functioned to everyday living, the court addressed the historic ways in which the Cowichan Nation organized itself as a collective community. Based on these considerations, the court found that the descendants of 11 groups that make up the Cowichan Nation are the proper rights and title holders.20
Implications and Conclusions
Deciding the proper rights holder is significant for an Indigenous Nation advancing claims regarding its rights and title. It determines who is entitled to exercise rights and represent communities. Equally as important is that the decision of who is the proper rights holder also draws limitations on who is not entitled to such rights. Cowichan Tribes affirms that the nature of rights holders is that it does not neatly map onto existing Indian Act bands.
Cowichan Tribes indicates the importance of Indigenous Nations drawing upon their histories, cultural practices, and governing institutions to articulate their laws regarding the appropriate rights holders for their community. There is important work to support Nation building and the governance of communities to prepare for articulating the proper rights holder for their communities. Ultimately it is Indigenous Nations' own laws – as expressed through fishing sites, traplines, stories, names, chieftainships, songs, and dances – that govern the context-driven question of who the proper rights holder.
Determining the proper rights holder for Aboriginal rights and title should begin with Indigenous communities' own cultural practices, laws, and values. Cowichan Tribes serves as a reminder that there is important work to be done regarding articulating how Indigenous legal orders have governed the scope and application of community-based rights and practices, which are now being recognized and affirmed as Aboriginal rights. Moving towards recognition means that there are important considerations for Indigenous communities to draw on their governing principles, stories, and oral histories to determine who is the proper rights and title holder for s. 35 interests.
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 Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC). [Delgamuukw]
5 Delgamuukw at para 115.
6 Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 at para 469; William v British Columbia, 2012 BCCA 285 at paras 55–57 and 149–151, Rev'd on other grounds Tsilhqot'in v British Columbia, 2014 SCC 44.
7 Tsilhqot'in BCSC 1700 at para 470.
8 Tsilhqot'in BCCA 385 at para 149.
9 Tsilhqot'in BCSC 1700, at para 469.
10 Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490 at para 523. [Cowichan Tribes]
11 Cowichan Tribes at para 506.
12 Cowichan Tribes at para 297.
13 Cowichan Tribes at para 431.
14 Cowichan Tribes at paras 467, 471.
15 Cowichan Tribes at para 471.
16 Cowichan Tribes at para 476.
17 Cowichan Tribes at para 486.
18 Cowichan Tribes at para 488.
19 Cowichan Tribes at para 489.
20 Cowichan Tribes at para 523.
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