BC Supreme Court's recent Cowichan Decision

On August 7, 2025, the British Columbia Supreme Court (the Court) released the landmark decision, Cowichan Tribes v Canada (Attorney General) (Cowichan). The plaintiffs (the Cowichan Tribes) brought forward a claim for Aboriginal title to their traditional lands, the Lands of Tl'uqtinus (the Claim Area), and a claim to exercise their Aboriginal right to fish the south arm of the Fraser River. The defendants included the federal Crown, the Province of British Columbia (the Province), the City of Richmond (Richmond), the Vancouver Fraser Port Authority (VFPA), and two BC First Nations. 

The decision has attracted considerable media attention, largely due to the Court’s declaration that certain grants of fee simple title in BC are “defective and invalid”. This pronouncement has sparked widespread uncertainty, prompting scrutiny of the province’s land tenure system and raising broader questions about the stability of land ownership frameworks across Canada. 

This publication provides a high-level overview of some of the key elements of the Court’s reasoning and findings, with a particular focus on land-related issues (excluding the issue of fishing rights). It also addresses several frequently asked questions that have emerged since the decision’s release.

Importance & Background of the Decision

The Cowichan decision is the product of a 513-day trial, including hearings spanning over 11 years – making it the longest trial in Canadian history. 

The Claim Area, located on the south shore of Lulu Island, includes lands granted to or owned by the federal Crown, Richmond, the VFPA, and private fee simple landowners. The Cowichan Tribes relied on extensive oral histories, lay witnesses, expert testimonies and historical documents and records to support their claim of having a connection to the Claim Area, sufficient to establish Aboriginal title. As a result of the evidence provided, the Court concluded, among other things, that various grants of fee simple title in BC given to the federal Crown and Richmond are "defective and invalid". 

The decision marks a pivotal moment in the Aboriginal law landscape. Specifically, the decision advances the understanding and recognition of Aboriginal title under section 35(1) of the Constitution Act, and, if upheld on appeal, will set a profound legal precedent for future cases to be brought by other Indigenous peoples to apply to grants of fee simple land interests.

Aboriginal Title 

The Court rigorously applied the established legal test for proving Aboriginal title, which requires plaintiffs to demonstrate both sufficient occupation and exclusive use of the lands during the relevant time periods.

It found that the Cowichan Tribes satisfied the requirement of sufficient occupation by presenting compelling evidence of a permanent village housing approximately 2,250 people, along with physical occupation of other areas within the Claim Area. The evidence showed regular use, management, and cultivation of the land as part of their traditional way of life.

The Court also held that the Cowichan Tribes demonstrated exclusive use of the lands. The evidence established that, during the relevant periods, the Cowichan Tribes exercised effective control over the area, with no indication of other groups occupying the land. The Court accepted that the Cowichan Tribes had both the capacity and the intention to exclusively control their village and surrounding lands.

Accordingly, the Court recognized their Aboriginal title to a portion of the Claim Area (the Cowichan Title Lands). Moreover, the Court determined that the Crown infringed such Aboriginal title and that such infringement was not justified. 

BC's Land Title System 

The Land Title Act of BC (the Land Title Act) is predicated on the concept of indefeasible title (i.e., the concept that a registered owner of land has absolute and secure ownership) and ensures that once a title is duly registered in the land titles office, it is deemed final and conclusive. The defendants argued that the Land Title Act could shield fee simple title from Aboriginal title claims. 

The Court rejected this argument, finding that Aboriginal title exists outside the land title system. It relied on the Interpretation Act, which requires legislation to be interpreted in a way that respects and does not diminish Aboriginal rights. The Court also noted that interpreting the Land Title Act to override Aboriginal title would conflict with the United Nations Declaration on the Rights of Indigenous Peoples, which British Columbia has committed to uphold.

Ultimately, the Court concluded that the provisions of the Land Title Act do not protect fee simple interests from Aboriginal title claims. It held that the Province lacked the authority to extinguish the Cowichan Tribes’ Aboriginal title through Crown grants of fee simple land, and that such grants did not legally displace or eliminate the Aboriginal title.

Other Noteworthy Defences Raised and Rejected

Several of the defendants raised a limitations defence. This defence asserts that the Cowichan Tribes' claim should be dismissed because it was not filed within the legally prescribed time limit. The Court dismissed this argument on the basis that limitations legislation does not preclude courts from issuing declarations regarding the constitutionality of Crown conduct, as established from previously binding case law. Therefore, the Cowichan Tribes' claim was not time-barred. 

Additionally, one of the defendants, Richmond, raised the equitable defence of bona fide purchaser for value in response to the Cowichan Tribes' claim. This defence asserts that the properties in question were acquired through legitimate transactions, thereby extinguishing any prior interests in the land. In assessing this defence, the Court examined historical records from the 1930s and found that Richmond had acquired the lands for nominal consideration, which did not reflect their fair market value at the time. Consequently, the Court rejected this defence, concluding that Richmond was not a bona fide purchaser for value in the relevant period.

In Cowichan, the Cowichan Tribes did not challenge the validity of private landowners’ fee simple interests.  In line with this, the Court declined to make findings or declarations regarding the status or validity of privately held fee simple titles and made clear that any implications for those interests would need to be resolved in future cases where private owners are parties: “the Cowichan have not challenged the validity of the private fee simple interests and those interests are valid until such a time as a court may determine otherwise or until the conflicting interests are otherwise resolved through negotiation”. The Court further recognized that if subsequent proceedings arise that do directly affect fee simple interests held by private owners, those owners will have full opportunity to participate, make submissions, and defend their interests.

Noteworthy Declarations Made by the Court

The Court made several critical declarations, including: 

1. the Cowichan Tribes hold Aboriginal title to a portion of the Cowichan Title Lands, which includes submerged land;
2. the Crown grants of fee simple interest in the Cowichan Title Lands unjustifiably infringed upon the Cowichan Tribes' Aboriginal title; and
3. except for the federal Crown's fee simple title and interests in specific lands, such as the Vancouver Airport fuel delivery project lands, the fee simple interests of the federal Crown and Richmond in the Cowichan Title Lands are defective and invalid.

Conclusion

While the Court refrained from ordering restitution, it directed the federal and provincial governments to engage in good faith negotiations to reconcile Crown-granted fee simple interests held by third parties (excluding private landowners who were not parties to the litigation) within the Cowichan Title Lands.

This decision underscores the paramount importance of Aboriginal title, in BC in particular, and sets a significant precedent for future cases involving conflicts between unresolved Aboriginal title and fee simple interests in land. 

FAQs

How will the Cowichan decision impact real property and Crown royalty interests in BC?

Significantly, the Court directly addressed the legal uncertainty for private landowners on unceded territories where Aboriginal title is established. The decision notes “a declaration of Aboriginal title may give rise to some uncertainty for the fee simple title holders, and it may have consequences for their interests in land”.

The Court observed that the “relationship between Aboriginal title and fee simple title remains unsettled” in Canadian law and acknowledged that “any uncertainty with respect to the plaintiffs’ Aboriginal title rights in respect of land encumbered by privately-held fee simple interests will have to be resolved at a later date”.

The Court further explained that “courts will adopt a case-by-case approach in considering the impact of fee simple interests on constitutionally protected Aboriginal interests in land” and that, until specifically adjudicated or resolved by negotiation, both interests continue to coexist, though not always harmoniously.

Additionally, Aboriginal title includes rights to the lands and its resources, challenging the Crown's authority to grant sub-surface rights without Indigenous consent. If conflict arises between the granting of Aboriginal title and sub-surface rights, with a Crown royalty arising from the minerals extracted, additional uncertainty may arise.

The Cowichan case addressed highly complex legal and historical issues, with evidence specific to the Cowichan Title Lands and particular time periods. As such, it does not establish a definitive approach for how courts will resolve similar challenges in the future, especially where the evidence and factual context differ.

What impact will Cowichan have on real property in Alberta?

The Cowichan decision is fundamentally premised on the unceded status of the lands at issue. The Court repeatedly emphasized that its findings and remedies depend entirely on the fact that the Cowichan Title Lands were never surrendered, ceded by treaty, or otherwise lawfully extinguished. Aboriginal title was recognized because the plaintiffs demonstrated continuous and exclusive occupation, and no treaty or act had ever extinguished their title.

In contrast, substantially all of Alberta is subject to historical treaties, specifically Treaties 4, 6, 7, 8 and 10 pursuant to which Indigenous signatories ceded land to the Crown. The Court in Cowichan explicitly distinguished between unceded lands and those subject to treaty, noting that treaty lands represent a full settlement of Aboriginal rights and title claims. As a result, the decision does not provide a precedent for similar outcomes in Alberta, where Aboriginal title has been lawfully extinguished.

However, evolving interpretations of treaty rights may still give rise to disputes over land use, resource access, and Crown obligations. While Alberta’s treaty framework reduces the likelihood of fee simple challenges, it does not eliminate the potential for land-related litigation.

How will Cowichan impact banks and other real estate lenders?

Because lenders typically secure loans by registering security interests against land titles, any uncertainty surrounding ownership or competing claims – especially those grounded in Aboriginal title – poses a direct threat to the validity and enforceability of such security interests. Even the perception of ambiguity can undermine confidence in the stability of land-based collateral, with real consequences for financial risk and market integrity.

In areas of unceded land, where Aboriginal title has not been extinguished through treaty or other legal mechanisms, financial institutions may need to reassess the risk profile of lending against certain properties or attributing lending value to mines and minerals extracted from such properties. This could necessitate enhanced due diligence processes, including legal reviews of potential Aboriginal title claims, to ensure that loan security is not compromised.

While such concerns are more pronounced in BC due to its unique legal landscape, they underscore the broader importance of clarity and certainty in land tenure systems for the functioning of real estate markets and the stability of secured lending.

What should I do if I have questions about Cowichan?

At this stage, the full impact of Cowichan remains uncertain. The federal government and the Province of British Columbia have expressed their intention to appeal the Cowichan decision. Further clarity is expected as appellate decision(s) are released and additional cases make their way through the courts. These developments will help define the scope and implications of Aboriginal title, particularly in relation to registered land interests and property transactions.

We are actively monitoring these developments and remain committed to keeping our clients informed of any significant changes. If you have questions or concerns about how this may affect your business, property interests or secured lending transactions please contact us. Our team is well-positioned to provide timely, practical advice tailored to your specific circumstances.