Country Meadows Golf Course, which falls within the boundaries of a Cowichan Nation Aboriginal title claim, in Richmond, B.C., on Friday, Aug. 22, 2025. A B.C. Supreme Court ruling confirmed Cowichan Aboriginal title and fishing rights over a stretch of land.DARRYL DYCK/The Canadian Press
A B.C. Supreme Court ruling that for the first time recognized Aboriginal title over privately owned land has raised new questions about how the two can co-exist, with observers anticipating a lengthy legal process that could reach Canada’s highest court.
Justice Barbara Young’s decision in the land claim ruling, handed down in August, said that the Cowichan Tribes have established Aboriginal title, a type of ownership right rooted in ancestral usage of a piece of land, to roughly 800 acres in southeast Richmond, B.C., on the Fraser River, as well as an Aboriginal right to fish for food.
Notably, Justice Young found that B.C.’s post-Confederation Crown grants of private ownership – known as fee simple title – over the area were issued without constitutional authority and were therefore rendered “defective and invalid.” She suspended the effect of this declaration for 18 months to allow the Cowichan, the federal government and the City of Richmond to make necessary arrangements.
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George Abbott, a former B.C. Liberal MLA and cabinet minister who was appointed to the provincial seat on the BC Treaty Commission in February, said the decision breaks new ground and may have unintentionally made it more difficult for the parties to return to the negotiating table.
He cited the Royal Commission on Indian Affairs for the Province of B.C., commonly known as the McKenna-McBride Commission, which held hearings across the province from 1913 to 1916 on the issue of what were then known as Indian reserve lands.
Commissioners heard “many dozens” of cases in which First Nations returned to areas of traditional use to find that the land had been taken, Mr. Abbott said.
“So it’s not that the Cowichan decision is going to be the last of its kind,” he said. “That’s why I think governments would be very uncomfortable leaving on the books a decision where fee simple titles were rendered defective and invalid.”
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Mr. Abbott, whose book, Unceded: Understanding British Columbia’s Colonial Past and Why It Matters Now, was published last month, said he expects the matter to continue through the courts for years, likely reaching the Supreme Court of Canada.
“As we wait for those decisions, my counsel to everyone – First Nations, governments – is continue to devote every ounce of energy that we can to those negotiation processes so we can find a better way than legal processes to address some of the historic failings of our province," he said.
Justice Young’s ruling said that the plaintiff nations do not seek to invalidate the fee simple interests of private landowners with the court action. Robert Morales, chief negotiator for the plaintiffs and a member of the Cowichan Tribes, reiterated as much to The Globe and Mail, saying the action is focused on lands owned by governments and corporations and does not seek to displace private property owners.
Richmond Mayor Malcolm Brodie says in a letter to property owners that the decision could compromise their land ownership.DARRYL DYCK/The Canadian Press
The ruling said: “The existence of privately held fee simple estates on the Cowichan Title Lands does not preclude, and should not preclude, a declaration of Aboriginal title,” and that any uncertainty regarding land encumbered by privately held fee simple interests will have to be resolved at a later date.
The decision leaves a number of outstanding questions, including what good faith negotiations might look like in the exercise and application of Aboriginal title where fee simple ownership exists, and what happens in the event of a conflict.
The province, the City of Richmond and the federal government are appealing the decision, saying it could pose significant unintended consequences for private property owners, while the Musqueam Indian Band and Tsawwassen First Nation are appealing because the area overlaps with their own traditional territories. The Cowichan are appealing over the court’s decision to recognize only about 40 per cent of the area claimed.
Richmond Mayor Malcolm Brodie, who authored a letter to property owners in the area saying the decision could compromise the status and validity of their ownership, said he feared it could dismantle the land title system, with ramifications across the country. Mr. Brodie and B.C. Conservative Leader John Rustad argue that Aboriginal and fee simple titles cannot co-exist.
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The City of Richmond is hosting a public information session on Tuesday evening at the Sheraton Vancouver Airport Hotel.
Anna Woitowitsch, whose family has owned a farm in the area for 95 years, learned of the decision through Mr. Brodie’s letter and said it had angered her.
“They’re disrupting our lives,” she said. “We don’t know what the future is holding.”
David Rosenberg, a lawyer representing the Cowichan Tribes, said that if the province negotiates in good faith the “likely outcome” is a treaty recognizing Aboriginal title while allowing private owners to continue to hold fee-simple title.
Khelsilem, a former elected leader of the Squamish Nation who uses only one name, said the reaction to the decision has been “as loud as it has been misleading.” The Cowichan decision affirmed only that “Aboriginal title exists, and when the Crown wrongfully disposes of Indigenous land, it is the Crown – not private landowners – who bears the duty to reconcile," he wrote in a blog post.
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Citing other major Aboriginal title cases, Khelsilem said courts have historically been conservative in ordering relief, issuing directives to government and First Nations to negotiate settlements, which can include compensation, land swaps and co-management agreements.
Montrose Properties owns 477 acres of land over which the court declared title, including an industrial complex on the property with tenants such as a Coca-Cola Canada Bottling plant, a Wayfair warehouse and a Canadian Tire distribution centre.
CEO Ken Low said certainty is needed to sustain and create economic activity.“
That is why we and others 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 title was created over a century ago,” he said in a statement to The Globe.
With a report from The Canadian Press