The Longest Trial, A Big Impact: Cowichan's Aboriginal Title Victory

Following one of the longest trials in Canadian history, the Supreme Court of British Columbia (the Court) released its landmark decision in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, holding that the historical descendants of the Cowichan people¹ (the Plaintiffs or Cowichan) have Aboriginal title over a portion of the total claim area sought at the south shore of Lulu Island, in Richmond, British Columbia (the Cowichan Title Lands). This is the first time in Canadian history Aboriginal title has been established over lands that include fee simple/private ownership, resulting in significant uncertainty for governments, fee simple landowners, and Indigenous communities with overlapping title claims.

While the focus of this blog will center on the Court's decision pertaining to the finding of Aboriginal title, the 863-page decision also established the Plaintiffs' Aboriginal right to fish the South Arm of the Fraser River for food, which is not limited to any species or season.

The Plaintiffs' Aboriginal title claim

Aboriginal title refers to the inherent Aboriginal right to manage and occupy land. In finding that the Plaintiffs have Aboriginal title over the Cowichan Title Lands — an area of land currently owned by Canada, the Vancouver Fraser Port Authority (the VFPA), Richmond and private third parties — the Court applied the legal test set out by the Supreme Court of Canada in Delgamuukw v. British Columbia ² to the Plaintiffs' claim:

Sufficiency of occupation

The Plaintiffs established sufficient occupation of the Cowichan Title Lands on June 15, 1846, the date of the British Crown's assertion of sovereignty. The Court found the Cowichan people historically occupied the Cowichan Title Lands, where they lived and fished in the summer season, and used and managed as part of their traditional way of life.³ The Court was satisfied that the occupation of the Cowichan village year-after-year demonstrated a permanent and regular presence, that the Cowichan physically occupied the land through construction of permanent structures, and that the land was inexorably linked to the Cowichan's way of life.⁴

Continuity of occupation

The Plaintiffs did not need to prove they continuously occupied the lands. The Court concluded that the continuity aspect of occupation will be fulfilled where a claimant group establishes that they are the descendants of the Aboriginal rights-holding groups, and can also establish pre-sovereignty occupation (which the Cowichan established in this case).⁵

Exclusivity of occupation

The Court found the Cowichan exercised effective control over the Cowichan Title Lands prior to and as at 1846. The Cowichan were the only Indigenous group to occupy these lands, and they used intimidation and force to keep other Indigenous groups out of these lands. Thus, the Cowichan exclusively occupied the Cowichan Title Lands.⁶

Crown appropriation and disposition of the Cowichan Title Lands

Having determined that the Cowichan held Aboriginal title over the Cowichan Title Lands, the Court then assessed how those lands have been dealt with by the Crown in order to assess the validity of today's fee simple interests in those lands. This was necessary because the Cowichan sought a declaration that the current fee simple titles and interests in the Cowichan Title Lands owned by Canada and Richmond were defective and invalid. Specifically, the Court considered a 1853 promise made to the Cowichan by the Crown, the Crown's appropriation of the Cowichan Title Lands and actions taken by the Crown to set aside those lands for the Cowichan, whether the Cowichan's title was extinguished or displaced by fee simple title holders, and the guarantee of fee simple interests afforded by the B.C. Land Title Act (LTA).

Crown promise and appropriation of Cowichan Title Land

The Court found that, in 1853, the Crown made assurances to the Cowichan to treat them with humanity and justice if the Cowichan remained at peace with the settlement, a promise that engaged the honour of the Crown.⁷ Subsequent to that, Crown issued a proclamation declaring that all lands in B.C. belonged to the Crown. In addition, administrative procedures were established at the same time to establish reserves at the site of existing "Indian villages" and protect those areas from being staked by European settlers. As a result, these lands were not available for sale. The Court found the Crown never completed the process of creating a reserve on the Cowichan Title Lands, but that failure did not undo the administrative protections that were attached to the land.⁸

Continued appropriation of Cowichan Title Land and authority to issue Crown grants

The Court found there was continued appropriation of the Cowichan Title Lands for the purpose of eventual creation of Indian reserves through 1871 (when B.C. was admitted to Canada under the British Columbia Terms of Union). The Plaintiffs successfully established that all Crown grants, except for one, were made without statutory authority since these lands were appropriated Indian settlement lands.⁹ The Court concluded that the legislation in effect at the time required land to be unappropriated to be validly granted, and thus the Crown did not have the authority to issue grants on previously appropriated lands. Further, the Court concluded that the post-Confederation Crown grants were made without constitutional authority, as the British Columbia Terms of Union constitutionally limited the enabling statutes for those grants. As such, British Columbia (the Province) exceeded its constitutional authority every time it issued a Crown grant of fee simple interest in the Cowichan Title Lands.¹⁰

Cowichan's Aboriginal Title was not extinguished or displaced

The Court also found that the Province lacked the jurisdiction to extinguish Aboriginal rights and the Crown grants did not permanently displace the Aboriginal title interest.¹¹ The Court held that Aboriginal title and fee simple title may coexist and, where they do, reconciliation of those competing interests should be between the Aboriginal rights holder and the Crown.¹² The Court considered the previously unsettled law and ultimately determined that Aboriginal title is a "prior and senior right to land" which burdens fee simple titles.¹³ The existence of the fee simple titles does not supersede Aboriginal title and instead coexists alongside the Cowichan's title rights. The Court confirmed that the Aboriginal right holders may seek remedial action to exercise associated rights where and when necessary; otherwise fee simple title continues to exist and be exercisable.¹⁴ Thus, holders of fee simple interests may still exercise their rights on the land unless the Aboriginal title holder takes remedial action.

Fee simple interests in Cowichan Title Lands

The Court then considered the indefeasibility provisions in the LTA raised by Richmond as a defence to Cowichan's claim for Aboriginal title. The Court held that Aboriginal title is sui generis and arises from possession before the assertion of British sovereignty, whereas fee simple interests are derived from Crown title and arise afterward.¹⁵ The LTA provisions did not intend to capture the unique nature of Aboriginal title.¹⁶ Additionally, if the indefeasibility provisions were to apply to Aboriginal title, it would bar Indigenous people from seeking the return of their land.¹⁷ For these reasons, the Court rejected Richmond's argument.

Prima facie infringement of Aboriginal title and lack of justification

After finding that the Cowichan hold Aboriginal title over the Cowichan Title Lands, the Court considered whether the Crown's historical conduct interfered with the Cowichan's Aboriginal title. In doing so, the Court applied the infringement and justification framework set out by the Supreme Court of Canada in Tsilhqot'in Nation v. British Columbia.¹⁸ The Court determined that each of the four activities set out below were a prima facie infringement of the Cowichan's Aboriginal title that were unjustifiable.

Crown grants of fee simple interest

The Court found the Crown grants of fee simple interest issued in relation to the Cowichan Title Lands were a meaningful diminution of the Cowichan's Aboriginal title. These grants provided title holders with the rights of possession, the right to exclude, the right to transfer, and the rights to control, use, and profit from the land.¹⁹ The Crown grants directly deprived the Cowichan of access to the Cowichan Village and disrupted their access and ability to fish on the Southern arm of the Fraser River.²⁰ The fee simple interest adversely interfered with and continued to interfere with the exercise of the Cowichan's Aboriginal title to the Cowichan Title Lands and is a prima facie infringement of Aboriginal title. The Court held that this was an unjustifiable infringement, as it was incompatible in nature with the fiduciary duty the Crown owed to the Cowichan, and the Crown breached its duty to consult obligations when the Crown grants were contemplated.²¹

The province's vesting of Richmond with fee simple interests via tax sales under the Municipal Act

The Court found the Province's vesting of Richmond with fee simple interests in the Cowichan Title Lands by operation of the legislated tax sale process in the historical Municipal Act, as amended, continued the Cowichan's exclusion from the rights and benefits associated with their Aboriginal title to the Cowichan Title Lands. Although the disposition of Cowichan Title Lands to Richmond was not a result of a direct transfer by the Province, the Court was satisfied that the transfer through the Province's legislation was a direct action impeding on the Cowichan's Aboriginal title.²² The Court found this to be a meaningful diminution of the Cowichan's ownership rights in respect of the Cowichan Title Lands, and a prima facie infringement of their Aboriginal title. The Court found this infringement to be unjustified as the Province failed to lead evidence to demonstrate that the Cowichan were consulted, that the Municipal Act, as amended, was backed by a compelling and substantive objective, or that the breach aligned with the Crown's fiduciary duty owed to the Cowichan.²³

The Province'svesting of soil and freehold interests under the community charter

The Court found the vesting of additional administrative responsibilities for the roads to Richmond allowed Richmond to exercise possessory rights which directly interfered with the Cowichan's ability to exercise their Aboriginal title.²⁴ The Court applied the holding in Tsilhqot'in²⁵, that direct transfer of Aboriginal property rights to a third party is an infringement of Aboriginal title due to the diminishing effects on the Aboriginal ownership rights.²⁶ Therefore, the vesting of soil and freehold interests was a prima facie infringement on the Cowichan's Aboriginal title. The Court determined this was an unjustifiable infringement as the Province did not raise the defence of justification, and its argument that the vesting did not impact the Plaintiffs was rejected.²⁷

Canada and VFPA's activities on Cowichan Title Lands

The Court recognized that Canada's assignment of authority to the VFPA, permitting or compelling them to operate port activities such as leasing, licensing, or developing land-use plans on Cowichan Title Lands, are prima facie infringements that interfere with the Cowichan's ability to exercise their Aboriginal title.²⁸ The Court found that this infringement was unjustified as Canada and VFPA had breached the duty to consult the Cowichan with respect to the infringing activities,²⁹ and the activities were inconsistent with the Crown's fiduciary obligations. In particular, Canada and the VFPA failed to demonstrate that the incursion was necessary to achieve the goals of their port-related activity, such that the activities occurring on the Cowichan Title Lands could not occur elsewhere.³⁰

Defences

After determining these infringements of Aboriginal title were unjustified, the Court evaluated certain defences advanced by the defendants. Both the Province and Richmond raised limitation period defences, arguing that the Plaintiffs' claims were statute-barred. However, the Court found the jurisprudence indicated that "reconciliation must weigh heavily in the balance"³¹ in the Aboriginal law context when considering the applicability of limitation statutes.³² The Court also highlighted how limitations legislation cannot bar declaratory relief which pertains to the constitutionality of the Crown's conduct.³³ Based on this, the limitations defence did not apply to the majority of the declarations sought by the Plaintiffs.³⁴ The Court also found that the only declaration that was subject to a limitations defence was not statute-barred because the Crown grants of fee simple interests are continuing breaches of the Cowichan Title Land, such that a new cause of action arises every day in which the Cowichan are dispossessed from their land.³⁵

The Province and Richmond also advanced the equitable defences of laches and Bona Fide Purchaser for Value Without Notice (BFPFVWN). The Court ultimately found that neither of these equitable defences were available to the Province, stating that they cannot invoke the defences on behalf of third parties (the private fee simple title holders within the Cowichan Title Lands). The Court highlighted that allowing the Province to advance these defences on behalf of third parties would be unfair to the private landowners without their own opportunity to lead evidence or present arguments.³⁶

The Court found further that Richmond was not a purchaser for value, as the lands were vested to it by operation of the Municipal Act, and, on this basis, the BFPFVWN defence must fail.³⁷

Remedies and declarations

The Court evaluated the relief sought; namely, declaratory relief to give effect to the legal rights that had been established.³⁸ The Court highlighted how declarations would aid in resolving the longstanding land disputes, and how the Plaintiffs did not seek exclusive use of the Cowichan Title Lands, or to displace private owners on the land through this action. The Court highlighted that what the Plaintiffs choose to do in future negotiations or litigation based on the declarations made in the present case, did not alter the Court's determination that declaratory relief is appropriate.³⁹

The Court made the following declarations to bring a degree of finality and clarity to the Cowichan's claim and to do justice between the parties⁴⁰

• The descendants of the Cowichan Nation have Aboriginal title to the Cowichan Title Lands within the meaning of s. 35(1) of the Constitution Act, 1982 (the Constitution)
• The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in certain highway lands in the Cowichan Title Lands, unjustifiably infringe the Cowichan Nation's Aboriginal title to these lands
• Except for Canada's fee simple titles and interests in the YVR Fuel Project lands,⁴¹ Canada and Richmond's fee simple titles and interests in the Cowichan Title Lands are defective and invalid
• With respect to the Cowichan Title Lands, Canada owes a duty to the descendants of the Cowichan Nation to negotiate in good faith reconciliation of Canada's fee simple interests in the Vancouver Airport Fuel Delivery Project Lands with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown
• With respect to the Cowichan Title Lands, the Province owes a duty to the descendants of the Cowichan Nation to negotiate in good faith reconciliation of the Crown-granted fee simple interests held by third parties, and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown and
• The descendants of the Cowichan Nation have an Aboriginal right to fish the south arm of the Fraser River for food within the meaning of s. 35(1) of the Constitution

Declaration 3 regarding invalidity of fee simple titles held by Richmond and Canada was suspended for 18 months to allow the parties time to make the necessary arrangements.⁴²

Discussion

While the Court seemed to rely on the fact that the Cowichan were not seeking to displace private owners of the lands subject to the title claim, the decision now leaves the affected private landowners and governments (as well as landowners and governments across the rest of Canada where Aboriginal title is asserted) with key outstanding questions. For example, practically, to what extent can the Cowichan now influence how the fee simple lands over which they hold Aboriginal title are used? What recourse, if any, do private landowners have against the government if the Court's declaration restricts their use and enjoyment of their land? What does a good faith reconciliation of fee simple ownership over Aboriginal title lands look like? Not surprisingly, the Province, federal government, VFPA, and Richmond have each commenced appeals of the Court's decision. Other Indigenous groups (the Musqueam Indian Band and Tsawwassen First Nation) have also commenced appeals, as has the Cowichan in respect of the Court's decision to recognize Aboriginal title over only a portion of the total land area the Cowichan claimed. Regardless of how these appeals are decided, we expect this case will ultimately be appealed to the Supreme Court of Canada.

Footnotes

1. The Cowichan Tribes, Stz'uminus First Nation, Penelakut Tribe, and Halalt First Nation and the Lyackson First Nation brought this action on their own and on behalf of the historic Cowichan Nation.

2. [1997. 3 SCR 1010, 1997 CanLII 302, para 143 [Delgamuukw.; and 2025 BCSC 1490, para 530 [Cowichan Tribes..

3. Cowichan Tribes, para 1244.

4. Cowichan Tribes, para 1245.

5. Cowichan Tribes, para 577.

6. Cowichan Tribes, paras 1537-1538.

7. Cowichan Tribes, para 1722 and 1818.

8. Cowichan Tribes, para 1837-1838.

9. Cowichan Tribes, para 2070.

10. Cowichan Tribes, para 2081.

11. Cowichan Tribes, paras 2118 and 2139.

12. Cowichan Tribes, para 2174.

13. Cowichan Tribes, para 2195.

14. Cowichan Tribes, paras 2207-2208.

15. Cowichan Tribes, paras 2183-2184.

16. Cowichan Tribes, para 2251.

17. Cowichan Tribes, para 2255.

18. 2014 SCC 44 at para 120 [Tsilhqot'in..

19. Cowichan Tribes, para 2314.

20. Cowichan Tribes, para 2330.

21. Cowichan Tribes, para 2661.

22. Cowichan Tribes, para 2370.

23. Cowichan Tribes, paras 2664-2665.

24. Cowichan Tribes, paras 2416-2418.

25. Tsilhqot'in, para 124.

26. Cowichan Tribes, para 2417.

27. Cowichan Tribes, paras 2668-9.

28. Cowichan Tribes, paras 2468, 2489, 2504, 2517, and 2525.

29. With the exception of the lease of the YVR Fuel Project Lands.

30. Cowichan Tribes, paras 2851-2852.

31. Citing Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14at para 141.

32. Cowichan Tribes, para 2942.

33. Cowichan Tribes, para 2958.

34. Cowichan Tribes, paras 2958-9.

35. Cowichan Tribes, para 2980.

36. Cowichan Tribes, para 3064. As the Cowichan did not challenge the validity of the private landowners' fee simple interests in this proceeding, these arguments may be raised by the private landowners in subsequent legal proceedings to determine the validity of their fee simple interests.

37. Cowichan Tribes, paras 3104-5.

38. Cowichan Tribes, para 3512.

39. Cowichan Tribes, para 3541.

40. Cowichan Tribes, para 3724.

41. The Cowichan did not seek a declaration that the fee simple titles and interest are defective and invalid in relation to the Fuel Delivery Project.

42. Cowichan Tribes, para 3638.

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