Earlier this month, after more than 500 days of trial, the BC Supreme Court issued the long-awaited decision in Cowichan Tribes v Canada.
The decision affirms the Cowichan hold Aboriginal title to their traditional village lands within the City of Richmond, including lands which are held in fee simple by private parties. Days later, the provincial government announced it would appeal the decision to the BC Court of Appeal.
Cowichan Tribes is a major victory for the Cowichan people who have fought for decades for the return of the village lands. As explained below, it could also mark a watershed moment for reconciliation in BC.
What Happened
In 2014, descendants of the historic Cowichan Nation, including the Cowichan Tribes, Stz’uminus First Nation, the Penelakut Tribe, and Halalt First Nation, brought an action for a declaration of Aboriginal title over lands in and around their traditional village, called Tl’uqtinus, and confirmation of their Aboriginal right to fish for food in the south arm of the Fraser River.
The area claimed by the Cowichan included lands owned in fee simple by Canada, the Vancouver Fraser Port Authority, the City of Richmond and third parties.
The Cowichan asked the Court to declare that the fee simple titles held by Canada, the Port Authority and Richmond are legally invalid because they derived from unlawful Crown grants which unjustifiably infringed Cowichan Aboriginal title. The Cowichan did not ask the Court to invalidate the fee simple interests of private landowners.
The claim was opposed by Canada, the Province of BC, the Port Authority, Richmond, the Musqueam Indian Band and the Tsawwassen First Nation. The trial took place over a five-year period from 2019-2023.
What the Court Said 
The Court held the Cowichan have Aboriginal title to a portion of the claim area, including Tl’uqtinus and a strip of submerged lands along the Fraser, and an Aboriginal right to fish for food in the south arm of the Fraser.
The Court found the Province’s grants of fee simple interests in the claim area unjustifiably infringed Cowichan Aboriginal title, and that the majority of Canada’s and Richmond’s fee simple interests in the claim area are defective and legally invalid. The Court suspended its declaration for 18 months to allow the Cowichan, Canada and Richmond to arrange an orderly transition of the Aboriginal title lands.
Why It's Important
More than ten years after the Supreme Court of Canada’s decision in Tsilhqot’in Nation, the relationship between Aboriginal title and privately held lands remains a highly contested area in Canadian law.
On the one hand, the recent Gaayhllxid/Gíihlagalgang “Rising Tide” Haida Title Lands Agreement demonstrates that Aboriginal title and private interests can co-exist. At the same time, critics have maintained that the exclusive nature of Aboriginal title is fundamentally incompatible with private, fee simple interests.
The Cowichan Tribes decision marks an important turning point in this debate.
The decision unequivocally affirms that Aboriginal title cannot be extinguished or “displaced” by provincial Crown grants. This is because Aboriginal title is a constitutionally protected interest grounded in Indigenous peoples’ prior occupation of their lands. Its existence predates both the Crown’s assertion of sovereignty and any Crown grants subsequently issued to private parties.
Critically, the Cowichan Tribes decision confirms the existence of Aboriginal title may invalidate fee simple interests issued without proper Crown authority.
Looking Ahead
Canadian courts have been clear about the source and origins of Aboriginal title. It exists because when Europeans arrived, Indigenous peoples were already living on and caring for their lands and waters as they had done for centuries.
What is less clear is the basis for Crown title in BC. Unlike Aboriginal title, Canadian courts have never provided an answer to how the provincial Crown came to acquire ownership or control over Indigenous peoples’ lands.
As a result, in the absence of a negotiated agreement or court order, the Province’s claim to ownership of Indigenous lands remains grounded in the racist and outdated Doctrine of Discovery. This in turn calls into question the legal validity of Crown title as well as subsequent Crown grants to private parties.
Instead of dealing with this issue head on, the Province has sought to avoid recognizing Aboriginal title over private lands, either by outright denial, costly court proceedings, or through the long-criticized BC Treaty Commission process.
The Cowichan Tribes decision could mark an end to this impasse. The decision clarifies the Crown can no longer avoid addressing the messy consequences which flow from the granting of fee simple interests on lands which are subject to Aboriginal title. Instead, the Crown has a duty to honourably negotiate with Indigenous peoples to recognize and implement Aboriginal title, including on lands subject to third-party interests.
As the Court recognized in Cowichan Tribes, Indigenous peoples should not be expected to forgo their rights to their homelands in the name of reconciliation. When Indigenous groups have been unlawfully dispossessed of their Aboriginal title lands, justice requires more than compensation and damages. Ultimately, justice – and certainty – may only be achieved through the return of land itself.
Kate Gunn is partner at First Peoples Law LLP. Kate completed her Master of Law at the University of British Columbia. Kate is co-author of Indigenous Peoples and the Law in Canada: Cases and Commentary.
Contact Kate and connect with her on LinkedIn.
First Peoples Law is a law firm dedicated to defending and advancing the rights of Indigenous Peoples in Canada. We work closely with First Nations to defend their Aboriginal title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their members.
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