Cowichan Tribes v. Canada

Cowichan Tribes v. Canada is a ruling by the Supreme Court of British Columbia that says the Cowichan Tribes had established Aboriginal title to approximately 750 acres in the city of Richmond. Where the Cowichan had established Aboriginal land title, the Court declared that the land titles of the Canadian federal government and the City of Richmond were "defective and invalid."^[1]: 8 Also, the Court ruled that the government's granting of fee simple titles (i.e., private ownership titles) on the land "unjustifiably infringe" on the Cowichan Aboriginal title.^{[3][2][1]: 8}

The Court did not invalidate the fee simple titles of landowners in the claim area, as the Cowichan did not seek that. However, it declared that Cowichan Tribes has Aboriginal title over those lands and Aboriginal title is a "prior and senior right" to other property interests, whether the land is public or private.^{[4][5][1]: 403 [6]} The ruling is important because it is the first time that a Canadian court has granted remedies that include the invalidation of fee simple title on the basis of a claim of Aboriginal title.^[7][8]

The trial was the longest in Canadian history, concluding 11 years after legal proceedings began, and 6 years after the trial started.^[9][10][11] The cost of the trial was estimated to be $100 million.^[12]

The judgement has potentially widespread implications for private property ownership in the province of British Columbia, and perhaps elsewhere in Canada.^[12]

The Cowichan Tribes were the plaintiffs in the case. The defendants were the federal government (Attorney General of Canada), the province of British Columbia (B.C.), the City of Richmond, the Vancouver Fraser Port Authority, the Musqueam First Nation, and the Tsawwassen First Nation.^[1][13]

Although they were not a party in the trial, the court's decision affects the ownership title of approximately 150 private landowners (45 in the area affected by the decision, and approximately 100 within the rest of the claim area).^[14][15][16] The Court rejected a request by the City of Richmond, the province of B.C., and the federal government to require the Cowichan to provide formal notice to affected landowners.^[14][17][18] Some landowners have asked the Court to reopen the case, and to name them as a party in the litigation.^[14][15] Before the decision, the property in the area claimed was worth an estimated $1.3 to $2 billion, and included a port terminal; airport jet fuel facilities; industrial, commercial, and agricultural businesses; and residential properties.^[19][20][21]

In August 2025, a B.C. Supreme Court judge ruled that the Cowichan Tribes had established Aboriginal title to 732 acres in the City of Richmond, and the Cowichan were granted recognition of an Aboriginal Right to fish the south arm of the Fraser River.^[22][3][19] The judge declared that land titles held by Canada and Richmond were "defective and invalid", meaning that if the Cowichan's win is upheld on appeal, they could take control of the land and use it as they see fit.^[2]

Importantly, the Court determined that wherever Aboriginal title is found to exist, it is a "prior and senior right" to other property interests, whether the land is public or private.^{[4][5][1]: 403 [3][2]} The judge also ruled that where Aboriginal and fee simple title exist for the same parcel of land, the government's grant of fee simple title "unjustifiably infringed" on the Cowichan title.^{[22][23][4][5][1]: 403, 651} ("Fee simple" title is as close to absolute ownership title as exists in the Canadian system of property law.)^[7]

The court rejected the argument that the Land Title Act could shield fee simple title from Aboriginal title claims, finding that Aboriginal title exists outside the land title system. The judge relied on B.C.'s Interpretation Act which requires legislation to be interpreted in a way that does not diminish Aboriginal rights. The Court noted that interpreting the Land Title Act to override Aboriginal title would conflict with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which was incorporated into B.C. law in 2019 in its Declaration on the Rights of Indigenous Peoples Act.^{[10][1]: 414–415 [24]}

The Court did not invalidate the land titles held by fee simple landowners, as the Cowichan did not seek that.^[7] However, as the ruling said that Cowichan Tribes has Aboriginal title, the City of Richmond told affected landowners that this "may compromise the status and validity" of their land ownership.^[3]

The judge suspended for 18 months her declaration that the land titles held by Canada and Richmond are defective and invalid, so the Cowichan, Canada, and Richmond "have the opportunity to make the necessary arrangements."^[6] She wrote that her declaration "will change a long-established status quo" and have significant impacts for Richmond and third-party lessees on the lands that the government of Canada owns, and that "much remains to be resolved."^[2]

The test for Aboriginal title was whether the Cowichan could prove sufficient and exclusive occupation of land as of just prior to the date of assertion of Canadian sovereignty, with that date being 1846.^[12][8] (In 1846 the British government declared sovereignty over what later became British Columbia by entering into the Oregon Treaty with the U.S.)^[5]

In 1846, the ancestors of the Cowichan, who then numbered around 1000 people, used the area in dispute (a portion of Lulu Island in the city of Richmond) for a few months each summer for fishing. Their permanent home was on Vancouver Island. To meet the test of "exclusive" occupation required to establish Aboriginal title, the Cowichan had to prove that they effectively used intimidation and force so that other Indigenous groups, like the Musqueam and Tsawwassen (who both opposed the Cowichan claim), would have been reluctant to use the claimed area when the Cowichan were away.^{[12][8][1]: 105 [22]}

The Colony of B.C. started issuing fee simple titles in the Richmond area in the 1860s.^[5] Around this time the government started, did not complete, a process of creating a reserve for the Cowichan.^[8][22][6] The Cowichan that had fished in the area during the summer left by about 1870, and there has been no connection between them and the area since. Various courts have ruled that there is no need for continuous occupation.^[5]

In determining the specific areas which had been exclusively occupied by the Cowichan in 1846, the judge relied on witnesses who gave oral evidence handed down from their ancestors, referred to as hearsay evidence in legal terms. Such evidence is generally inadmissible in common law, but the Supreme Court of Canada has permitted its use for Aboriginal peoples to substantiate their cases.^[5]

Cowichan Tribes Chief Cindy Daniels said "As stated in our 2016 declaration of reconciliation, our land and resources objectives are to recover and restore our village and surrounding lands, re-establish our permanent residence and river access, re-establish our cultural practices including those that support food security and sustainability, realize economic development and re-establish the truth of our history in that region."^[23]

The chief negotiator for the Cowichan, Robert Morales, said the Cowichan did not want to displace "the ordinary British Columbian from their land, understanding that that's a pretty serious position to take."^[20] Rather, the dispute was over land held by corporations and governments.^[20][25] Nevertheless, the court found that the granting of fee simple title was invalid, so the titles that follow from that are invalid, regardless of what the Cowichan sought.^[6] Also, the Cowichan position could change if their leadership changes.^[26]

One of the key issues in the case was whether Aboriginal title was extinguished when the fee simple titles were created. The City of Richmond was the only party at the trial to argue that the post-Confederation "Crown" (i.e., government) grants of fee simple title issued over the area between 1871 and 1914 necessarily extinguished Aboriginal title.^[20] The mayor of Richmond said there is an expectation that "any legitimate defence which can protect the people should be taken."^[20]

The federal government abandoned the extinguishment defence in 2018.^[27] Lawyers for B.C. were guided by a "civil litigation directive" established by Premier David Eby when he was provincial attorney general, which states the province will not advance arguments based upon the unilateral extinguishment of Aboriginal rights.^[27] While the court rejected the extinguishment argument, finding that Crown grants were made without constitutional authority (Canada's 1982 constitution does not include private property rights, but includes Aboriginal rights and title),^[24] the stance of the defendants may have influenced the outcome, since the court works with the arguments presented.^[28][27][20]

The judge noted that B.C. argued "the content of any Aboriginal title rights that the Cowichan may have today is necessarily limited by the fee simple interests."^[27] The trial judge said some of the province's arguments were rejected since they were inconsistent with B.C.'s own legal acts.^[12] Specifically, the judge's decision was influenced by the province of B.C.'s decision (in April 2024) to recognize Aboriginal title to Haida Gwaii (an archipelago on B.C.'s west coast where around half the population of 5000 are Haida).^[12][4] Also noted was the province's passage of the Declaration on the Rights of Indigenous Peoples Act which requires B.C. law to be consistent with the UNDRIP, which says Aboriginal groups have the right to own, use, develop, and control any lands that they traditionally occupied or used.^[4][13][10]

The mayor of Richmond says that, in the past, if you held fee simple ownership "you didn't have to worry about an Aboriginal claim against your property. Now that line is gone".^[9] With the ambiguity over ownership, land values have declined.^[26] Experts in valuation say the properties in the claim area no longer have value, and are not saleable.^[14] Some homeowners have experienced difficulty getting a mortgage, although the province said it would provide financing for homeowners and business owners, if needed.^[29][19][30] The lead lawyer for the Cowichan Nation said fee simple land sales in the claim area would need the consent of the Cowichan to go ahead, and "it would be with some accommodation from the Crown (government) to the Cowichan Nation."^[31][32]

The Court appears to contemplate some circumstances in which Aboriginal title and fee simple title might co-exist, with Aboriginal tile as a "burden" on fee simple land.^[7][12] By contrast, the City of Richmond says "Aboriginal title and fee simple title cannot co-exist" since "There cannot be two competing rights of exclusive ownership and possession of the same land."^[17][33]

If upheld after appeal, the ruling would mean that a Court may invalidate fee simple title if indigenous bodies can prove Aboriginal title to the fee simple parcel in B.C.^[7] A leading expert in Indigenous law in Canada, Thomas Isaac, notes: "The judge expressly states in the decision that, in B.C., you cannot rely solely on your title as unquestionable evidence of ownership of land", and he adds that the judge did not restrict this to the Cowichan title land.^[6][34]

The Cowichan ruling has created uncertainty regarding private land ownership in B.C., where there were half a dozen active land claims cases at the time of the ruling in August 2025. There may be many more, according to a member of the B.C. legislature, who says the public has not been fully informed about Aboriginal title claims.^[14][35] Other cases have not yet gone to trial, for example, the Shuswap (Secwépemc) Nation is seeking a declaration of Aboriginal title to an area that includes the city of Kamloops.^[14][29]

The case could have implications in other parts of Canada, according to B.C. Premier David Eby, and observers say "the floodgates have been opened" for more Aboriginal title claims.^[36][6] An Algonquin First Nation has filed a similar title claim in Quebec Superior Court.^[37] In 2024, a court in New Brunswick ruled that if the Wolastoqey Nations can prove Aboriginal title, that title would apply over all lands within the claim area (more than 50% of the province), including private lands.^[38][12]

Investment is likely to decline due to uncertainty around private property ownership, and some businesses are planning to relocate out of the Richmond land claim area.^{[19][28][33][39]} This could have an impact on economic activity and tax revenue.^[28][10]

Beyond the loss of public land and property by the City of Richmond and the Government of Canada, the ruling may affect regulatory authority, such as whether the City of Richmond, or the Cowichan, have the right to zone, expropriate, and levy taxes.^[14] At the provincial level, it is unclear whether B.C. laws, for example, the Motor Vehicle Act, will apply to privately-owned land where there is also Aboriginal title. A 2014 Supreme Court of Canada decision suggests that whether a particular law applies may depend on whether the legislature wanted it to apply and, if yes, whether the law constitutes a "meaningful diminution" of Aboriginal title (in which case it may need to meet tests for "justification", "rational connection", "minimal impairment" and "proportionality of impact".)^[40]

All seven parties involved in the case have said they will appeal the verdict.^[11] The Cowichan are appealing because the court's decision recognized only 40% of the 1,846 acres they claimed.^[6][2][19]

The Musqueam and Tsawwassen First Nations are appealing the "devastating" decision because the area overlaps with their own traditional territories.^[6][37]

The City of Richmond said it would appeal as it opposed the Court's "unprecedented" decision "which compromises the entire land title system in British Columbia."^[41]

B.C.'s Attorney-General said the province would appeal, and that "A private property right sits above [Aboriginal] title."^[26][42] However, political commentators say adopting this stance during the appeal would imply a change in approach, as the province did not make this argument during the trial.^{[11][26][43][44]}

The government of Canada, like the province of British Columbia and the City of Richmond, has said it is appealing because the decision could pose significant unintended consequences for private property owners.^[6] Although not part of the appeal process, some private landowners in the claim area have asked the federal government to refer the matter to the Supreme Court of Canada with "some respectful and fair questions, including whether Aboriginal title was extinguished when private land was created over a century ago".^[33]

The appeal is unlikely to take less than a year to resolve, and could take two or three years. Given the uncertainty and lack of legal clarity from the judgement on how Aboriginal title and private property interact, the case is likely to move on to the Supreme Court of Canada.^[12]

• British Columbia
• Canada
• Cowichan Tribes
• Musqueam First Nation
• Richmond, British Columbia
• Tsawwassen First Nation
• Vancouver Fraser Port Authority (Port of Vancouver)

• Calder v. British Columbia (1973)  – Recognized that Aboriginal title exists in Canadian law.
• Guerin v. The Queen (1984)  – Established that the Crown has a fiduciary duty to Indigenous peoples regarding reserve lands.
• R v. Sparrow (1990)  – The first Supreme Court case to interpret Section 35 of the Constitution Act (1982), and established the "Sparrow Test" (to determine whether a government action infringes on an Aboriginal right and whether that infringement is justified for conservation or public interest).
• Delgamuukw v. British Columbia (1997)  – Established the framework which set the legal test for Aboriginal title.
• R. v. Marshall (1999)  – Expanded the interpretation of historic treaties and Indigenous economic rights, and said treaty rights are not unlimited and can be regulated for conservation or other compelling public objectives.
• Tsilhqot'in Nation v. British Columbia (2014)  – Found that Aboriginal title can apply to large, contiguous areas used seasonally or semi-permanently.

• Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490