The August ruling in the British Columbia case of Cowichan Tribes v. Canada marks a sea change in real property law and Indigenous rights law in Canada. In a 288,000-word decision, Justice Barbara Young ruled that the Cowichan Tribes hold Aboriginal title to as many as 1,846 acres of prime land in downtown Richmond, B.C., owned by the federal government, the City of Richmond, the Vancouver Fraser Port Authority and numerous private landowners.
At the heart of the decision is the historical fact that more than 150 years ago the British government sold the land to white settlers without properly dealing with Indigenous rights.
The case upsets the long-standing certainty of private property rights under the “fee simple” title system in British Columbia. This form of land ownership is common across Canada and has long been thought to be the highest and strongest form of ownership.
But that’s no longer the law. The Cowichan Tribes decision affirms that Aboriginal title is a constitutional interest protected under the Charter, and it carries enforceable rights to land that override the government land registration system.
The provincial land registry system in B.C. and the rest of Canada is built on the principle that once your name is on title, ownership is guaranteed by the province. The Cowichan Tribes ruling turns this law upside down by declaring that land registries cannot override Aboriginal title.
Although the affected private landowners were not parties to the litigation, and the ruling does not specifically invalidate title to their lands, it affects them by creating an uncertainty over their ownership.
By ruling that Aboriginal title overrides provincial law, the decision could affect many other unresolved Indigenous land claims in B.C. and elsewhere in Canada.
Under the Cowichan Tribes decision, British Columbia owes a duty to the descendants of the Cowichan (Quw’utsun) and other tribes to negotiate in good faith a reconciliation of the land ownership held by private citizens “in a manner consistent with the honour of the Crown.”
In the wake of the decision, Richmond Mayor Malcolm Brodie circulated a notice to affected landowners saying that the decision “could negatively affect the title to your property” and that “Aboriginal title to your property … may compromise the status and validity of your ownership.”
Within days of the release of the court ruling, all of the parties to the litigation, including the plaintiffs, filed appeals.
The hearing of the Cowichan Tribes case began in 2019 and consumed 513 days. If the parties cannot reconcile the claims and compensate the Cowichan Tribes, it could be years before the case winds its way through the British Columbia Court of Appeal and the Supreme Court of Canada.
B.C. Attorney General Niki Sharma did not hold back in her criticism of the court’s decision. In announcing an appeal she said, “We disagree strongly with the decision. British Columbia will be filing an appeal and seeking a stay to pause implementation until the appeal is resolved.
“This ruling could have significant unintended consequences for fee simple private property rights in B.C. that must be reconsidered by a higher court.
“Our government is committed to protecting and upholding private property rights, while advancing the critical work of reconciliation. … The province prefers to resolve land claims through negotiation — where we can protect property rights directly — rather than risk considerable uncertainty through court decisions.”
My five key takeaways from the case are:
• Aboriginal title can override and invalidate fee simple ownership. Owners of private lands now find their title subject to overlapping claims, forcing governments to reconcile the claims by First Nations, or compensate them.
• Aboriginal title in land is now declared to be a constitutional property interest, not just a political or moral claim. It carries with it the right to exclusive use, control and benefit from the land — including resources like minerals, fish and timber.
• Canada and British Columbia must negotiate in good faith with the Cowichan Tribes. Reconciliation is now an enforceable duty of the Crown.
• Title to affected private properties in Richmond, B.C., is no longer certain. Land registries cannot override Aboriginal title.
• The floodgates have been opened for future Aboriginal title claims.
