The Less Certain Future of Private Land in British Columbia

Some Initial Reactions to the BCSC Decision in the Cowichan Tribes case (2025 BCSC 1490)

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I have been intending to start a substack for a while now to use as an informal venue for my musings on legal developments (mostly). I’ll talk more in a future post about what I am trying to do in this “Law for Breakfast” newsletter. But we’ve ended up with breaking developments worth talking about in the Cowichan Tribes case, which the British Columbia Supreme Court (the trial-level court in British Columbia, despite its confusing name, so subject to appeal) released last week. I will probably do a few posts about this case in the coming days. As it happens, I was also already scheduled to do a think tank report on the law of Aboriginal title this month - that has suddenly become more topical and has some extra things to talk about….

Anyway, the Cowichan Tribes decision is a massive judgment of over 600 pages (3728 paragraphs), following a 500+ day trial that is surely the longest in Canadian history. There are many different issues in the case, including rules on Aboriginal title and underwater lands, issues related to identifying a Cowichan fishing right opposed by the Musqueam currently fishing that area, and more.

I want to jump today right to the big issue of how the judgment affects fee simple title (the form of title held by private landowners in British Columbia).

The judge in the case is aware that the decision may have broader implications. Madam Justice Young writes of there being “a lot of unfinished business in this province” (para 3550). She says that she will go ahead and grant the declaration of Aboriginal title despite uncertainty it may create for fee simple holders who weren’t part of the case, as this doesn’t preclude a declaration (para 3543), and there can be future arguments on some of the implications.

Let’s look at a key paragraph describing the judgment in respect of fee simple lands:

Consider paragraph 2082: “[2082] The plaintiffs have established Aboriginal title to the Cowichan Title Lands based on use and occupation as at 1846. In the decades that followed, all of the Cowichan Title Lands were sold to settlers with no regard for the Cowichan’s interest. The Crown grants of fee simple interest that were issued in the Cowichan Title Lands were made without constitutional authority by virtue of being issued under legislation that was constitutionally limited by Article 13 of the BC Terms of Union. Most of the Crown grants were made without statutory authority because the lands were appropriated and as such were ineligible for sale under the various applicable ordinances and acts.”

This paragraph highlights that Madam Justice Young is saying (1) that the Cowichan established title to part of the claim area at issue based on meeting the requirements of the Aboriginal title test (“based on use and occupation as at 1846”) - something I can discuss further in a future post.

(2) Then, she says that Crown grants of fee simple interests (including to some land eventually ending up in the hands of the City of Richmond) were invalid. She says that because she thinks these particular lands had already been tentatively set aside by Governor Douglas for Indigenous reserve land and thus couldn’t have been granted in fee simple due to special restrictions she interprets as being present in Article 13 of the BC Terms of Union.

If we take point 2 seriously, then we could take the judgment as having narrower implications related just to areas that had been tentatively set aside for such purposes (and thus just some of the land in BC subject to Aboriginal title claims), subject to special effects from the BC Terms of Union (and thus pertaining just to BC). On that reading, it wouldn’t have province-wide effects in the same way.

But there’s a problem with that reading. Elsewhere in the judgment (note especially paras 2103-2118), Justice Young says that the province did not have the legal ability to extinguish Aboriginal title land rights in the past (pre-1982, after which s 35 of the Constitution Act, 1982 means no government can extinguish Aboriginal rights). That legal claim is based on a reading of two key Supreme Court of Canada precedents (Delgamuukw and Tsilhqot’in) and is subject to argument (some of which I can explain more in a future post). But if that view prevails, and for now, it’s the pronouncement of the court, then there would be wider implications.

If past BC grants of fee simple in areas subject to Aboriginal title claims qualifying under the test were inherently invalid (the effect that would follow if BC law could have no effect of extinguishing Aboriginal title), then the judgment has a much broader implication that any privately owned lands in BC may be subject to being overridden by Aboriginal title.

The claimants in the case strategically avoided putting any claim directly against private landholders (just against governments), but the conclusions on Aboriginal title implicate at least private landholders elsewhere in the area against whom the Cowichan Tribes could have claimed and still could. And, on what seems to be a necessarily broader reading of the judgment, it actually implicates most private landholders in the province of British Columbia (anyone in an area where there are Aboriginal title claims - and that’s still most of BC).

I have been reading the judgment over the weekend, trying to find nuanced ways that it may not have all the broad implications that some immediately suggested. But I have come to the view that the natural reading of the full judgment is that it does have broad implications, that it doesn’t engage fully with those implications, and that there are very challenging questions ahead - and a new layer of uncertainty flowing directly from this judgment for most privately owned land in British Columbia.

[I will keep thinking on this judgment (amid other things I also need to be working on) and will put out some more posts (as well as the think tank report I mentioned at the outset in the coming while as well). And I’ll be talking to others (if you know me and have observations, do be in touch). But that’s my initial take on a central point many will find of interest.]