It’s a call for Canada to face its legal and moral obligations. Here’s what the ruling actually means
Recent commentary around the Cowichan Aboriginal title decision from British Columbia, which ruled that the Cowichan Tribes had never surrendered their territory and thus have Aboriginal title, has stirred confusion – and fear – about the state of private property rights in Canada.
But much of that debate misstates what the decision actually means for the country.
Cowichan is not a sudden shift of Canadian law. It’s a continuation of principles that have existed for decades, and a reminder of the Crown’s unfinished obligations to Indigenous peoples.
Negotiating in good faith with Indigenous Nations is not just a matter of legal necessity – it’s a chance to build a fairer foundation for the country we share. The Cowichan ruling is a positive step in this direction.
What the Cowichan decision really says
Yes, the court recognized that Aboriginal title can exist on lands now held in “fee simple” – private property (largely) registered under the provincial Land Title Act. But that idea is hardly new.
More than 25 years ago, the Supreme Court of Canada in Delgamuukw held that provincial land grants could not extinguish Aboriginal title. The logical result has always been that Aboriginal title continues to exist on privately held lands. The Wolastoqey Nations v. New Brunswick case recently confirmed that courts can issue declarations of Aboriginal title over such lands.
In Cowichan, the court also ordered the return of certain lands owned in fee simple by Canada and the City of Richmond. But this came only after a five-year trial – the longest in Canadian history – where all affected parties were full participants. The outcome reflected a careful weighing of fairness, not a wholesale disruption of ownership. This is again, consistent with existing law – notably, the return of privately owned lands in the recent Chippewas of Saugeen First Nation case.
What it does not do
The ruling does not undermine or invalidate the rights of any landowners who were not parties to the case.
Instead, the court directed the federal and provincial Crowns to negotiate with the Cowichan about how to reconcile Aboriginal title with existing fee simple title. Those negotiations must balance the rights of both the Aboriginal title holder and these landowners.
And the parties can choose solutions, such as compensation, voluntary land purchases or shared jurisdiction, that don’t disturb private property rights.
The suggestion that homeowners could suddenly lose their deeds is unfounded. It’s fearmongering that distracts from the real issue: the Crown’s long-delayed duty to reconcile Indigenous title with the system it created.
The Land Title Act still stands
Some commentary has suggested the Land Title Act no longer applies to Aboriginal title lands. That is inaccurate.
The court simply held that two narrow provisions of the Act do not block Aboriginal title claimants from seeking the return of registered lands. The broader framework of the Act – which guarantees title, governs mortgages and regulates property transactions – remains fully in force.
Because the Cowichan were not challenging the title of landowners not included in the claim, there was simply nothing those landowners needed to be notified of, and nothing for them to defend against. So, the court decided not to formally notify those landowners of the proceeding. That decision saved homeowners needless anxiety and cost.
If, in the future, the Cowichan brings claims against these owners, they would then have full opportunity to respond.
Why panic is misplaced
Some fear that Cowichan will unleash a flood of lawsuits against individual landowners. That’s alarmist.
Reconciliation between Aboriginal title and private ownership can and should be achieved through negotiation, not litigation. And there is nothing to suggest Indigenous Nations want to displace homeowners or seize all private property.
In fact, recent examples show the opposite.
The Haida Nation reached an agreement with Canada and British Columbia recognizing Aboriginal title while preserving private ownership. The Wolastoqey Nation in New Brunswick has clearly said it does not seek the return of lands from homeowners or small businesses.
These cases reflect a balanced, forward-looking approach: recognition without undue disruption.
The deeper issue
Aboriginal title claims arise from a simple truth – the Crown’s historical, unlawful taking of Indigenous lands.
It is well known that Indigenous peoples have a sacred, unique and deep connection with their territories. The Supreme Court of Canada has long affirmed that Indigenous peoples governed and occupied these territories before European settlement. Aboriginal title arises from this and is constitutionally protected.
Yet the Crown repeatedly granted land to settlers without addressing this underlying Aboriginal title. You can’t give away what you don’t own – a basic principle of property law. The Crown has known for generations that its title rests on unfinished business.
A moment for honesty and leadership
The Cowichan decision is not a crisis for Canada’s property system. It’s simply a reminder to the Crown to fulfill its constitutional obligations.
If governments rise to the moment, Cowichan could mark a turning point – not in who owns the land, but in how Canada honours the truth of how it came to be.
It’s high time for the Crown to take its responsibility to reconciliation seriously. Only then can we achieve a just resolution for the unlawful land dispossession that Canada is founded upon.
Photo courtesy of D.G. Brown, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons
