A residence along No. 6 Road bordered by farmland, left, and Country Meadows Golf Course, right, fall within the boundaries of a Cowichan Nation Aboriginal title claim. Comparing this with a separate claim in New Brunswick underscores how unsettled the law has become.DARRYL DYCK/The Canadian Press
Joseph T. Robertson is a retired judge of the New Brunswick Court of Appeal. Prior to that appointment, he was a judge of the Federal Court of Appeal, and a professor with the Faculty of Law at the University of New Brunswick.
The British Columbia Supreme Court’s decision in Cowichan v. Canada (Attorney General) has drawn national attention, and rightly so. For the first time, a Canadian court has granted a declaration of Aboriginal title over privately owned (fee simple) lands, raising important questions for property law in British Columbia and beyond.
But at the same time, the more recent decision of the New Brunswick Court of Appeal in J.D. Irving Ltd. v. Wolastoqey Nation ruled quite differently: that the private lands held by Western New Brunswick timber companies were not subject to declarations of Aboriginal title. These two decisions underscore just how unsettled the law has become in this country.
These decisions matter not only to the legal community, but to ordinary landowners and Canadians at large. We need to understand each ruling to understand the trajectory of Canadian law’s engagement with reconciliation. And in doing so, it’s clear that the rulings in fact point in just one direction, because Cowichan can be sustained only by rewriting the Supreme Court’s settled doctrine of Aboriginal title, while Wolastoqey, with one severable modification, remains faithful to it. Of the two decisions, only Wolastoqey offers an approach that is legally sound and clear in its application.
For more than three decades, the Supreme Court of Canada has articulated and refined the doctrine of Aboriginal title on the understanding that declarations of title, based on historical possession (prior tempore, or first in time), extend only to lands presently owned by the Crown. This limitation is firmly grounded in both law and logic.
The doctrine was never intended to restore Indigenous communities to their pre-sovereignty land base nor to displace present-day holders of fee-simple title. Instead, the doctrine has been confined to declarations of Aboriginal title over unoccupied Crown lands. It has been generally accepted that such declarations operate prospectively, not retroactively.
That changed, with Cowichan.
Applying the Supreme Court of Canada’s established framework, B.C. Supreme Court Justice Barbara Young found that the Cowichan’s ancestors exercised sufficient and exclusive occupation of their traditional territory in 1846, when British sovereignty was first asserted in B.C. Based on the findings of sufficient historical possession, the Cowichan were able to establish Aboriginal title to 800 of the 1,846 acres claimed.
Given the passage of 170 years, it is unsurprising that the Cowichan’s traditional territory encompasses both Crown and privately owned land. What is more surprising is the court’s issuance of a declaration of Aboriginal title over fee-simple lands owned by the City of Richmond, B.C., a defendant and non-Crown entity in the proceeding.
More striking still, the declaration embraces roughly 150 additional fee-simple properties whose owners were never named as defendants and therefore had no opportunity to be heard.
Richmond Mayor Malcolm Brodie at a property owners info session in October, 2025. The City of Richmond warned at trial that extending Aboriginal title to private land would have serious systemic and economic consequences. The trial judge dismissed those concerns.Jennifer Gauthier/The Globe and Mail
Above all, the breadth of the declaration represents a clear departure from Supreme Court doctrine. The trial judge acknowledged that extending Aboriginal title to privately held lands produced what the law has always regarded as an “absurdity.” That concern lies at the heart of the problem.
Although Aboriginal title and fee simple are not identical, both confer exclusive rights of use, occupation, and control. Two parties cannot logically hold “exclusive” rights to the same parcel of land. For that reason, the law has long recognized that competing title claims cannot “co-exist.” The leading authority has always been the Federal Court’s 1980 ruling on Baker Lake (Hamlet) v. The Queen.
Relying on lower-court decisions, Justice Young concluded that the law was “unsettled” on the question of co-existence – an idea that echoes the concept of co-management. Drawing on academic commentary and provincial initiatives such as the Rising Tide Agreement, she held that Aboriginal title and private ownership could co-exist, subject to one overriding caveat: that, in the end, one form of title must prevail over the other.
Recognizing the uncertainty surrounding the concept of co-existence, she ordered the province to negotiate with the Cowichan in an effort to reconcile the competing claims. Private landowners have no role in those negotiations. During this period, the status quo is maintained, while fee-simple holders remain in a prolonged state of legal uncertainty.
If negotiations fail, the Cowichan decision permits the Indigenous claimant to rely on its declaration of title to seek remedies. Although the decision does not specify those remedies, seeking possession is an obvious possibility.
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Indigenous claimants have tried to reassure the public, outside the courtroom, that actual possession is not sought. Such assurances, however sincere, carry no legal effect; future claimants may choose to act differently. Landowners must instead focus on the pleadings and the legal consequences that flow from the issuance of a declaration of Aboriginal title.
More fundamentally, the Cowichan decision does not provide a clear answer to the central question: which of the two competing titles prevails?
The trial judge in the Cowichan case strongly suggests that Aboriginal title is the dominant interest. The court states that Aboriginal title “does not necessarily displace fee simple title,” but instead operates as a “limit on private ownership,” while also describing Aboriginal title as a “senior and constitutionally protected” interest.
The issue is sharpened by the Court’s finding that Richmond’s fee-simple interests are “defective and invalid.” That conclusion leaves little doubt that Aboriginal title is to be treated as paramount. The explanation warrants close attention.
Richmond’s fee-simple titles are traceable to Crown grants issued between 1871 and 1914. In each instance the grant was issued by the provincial Crown when, according to the trial judge, only the federal Crown had the statutory or constitutional authority to do so. For this reason Richmond’s fee-simple titles were declared “defective and invalid.”
Fortunately, the trial judge was not prepared to make the same declaration with respect to the approximately 150 properties mentioned earlier. Even so, the Cowichan decision sends a stark message to those private landowners: their titles are vulnerable even though they were never parties to the litigation.
At trial, the City of Richmond warned that extending Aboriginal title to private land would have serious systemic and economic consequences. The trial judge dismissed those concerns, stating that Richmond’s submission “inflames and incites rather than grapples with the evidence and scope of the claim in this case.” What has happened since has proven that the judge was mistaken in doing so. The B.C. government has announced its intention to appeal the Cowichan decision, if only because of its immediate and adverse impact on British Columbia’s real estate markets; the outcry was so significant that the province is proposing to backstop loan guarantees for those in the Cowichan Aboriginal title area to the tune of $150-million. This error in dismissal alone cries out for appellate intervention and the need to restore the Supreme Court’s doctrine of Aboriginal title.
Put plainly, Cowichan represents a substantial and unauthorized departure from the Supreme Court of Canada’s existing doctrine of Aboriginal title. Although the trial judge discussed conflicting lower court decisions over the co-existence issue, no such ambiguity appears in the Supreme Court’s jurisprudence.
In fact, the Supreme Court has neither expressly nor implicitly sanctioned the extension of Aboriginal title to private lands, let alone the co-existence model adopted in Cowichan. By departing from binding precedent rather than applying it, the decision fails to respect the limits imposed by the Supreme Court’s settled doctrine of precedent (stare decisis).
It is true that in the landmark 1997 ruling in Delgamuukw v. British Columbia, the Court noted that the claimed territory included some 35,000 non-Indigenous residents. But the claimants sought compensation, not declarations of title over private land. Then-chief justice Antonio Lamer’s famous observation – “We are all here to stay” – points toward co-existence through accommodation and compensation, not displacement through competing titles.
Then-chief justice Antonio Lamer’s famous 1997 observation – “We are all here to stay” – points toward co-existence through accommodation and compensation, not displacement through competing titles.Tom Hanson/The Canadian Press
To that end, it’s instructive to consider the New Brunswick Court of Appeal’s decision in Wolastoqey, which came shortly after the Cowichan ruling. The claims were similar, but because Wolastoqey arose from a pre-trial motion, the court focused only on key legal issues.
The Wolastoqey claim to Aboriginal title covers roughly 60 per cent of New Brunswick. They do not seek a declaration of Aboriginal title over the private lands of persons not named as defendants in the statement of claim. Instead, they seek compensation from the federal and provincial Crowns for issuing the Crown grants from which the fee simple titles are derived.
However, the Wolastoqey do seek a declaration of Aboriginal title, along with orders for repossession, for the private lands of numerous named defendants. Notably, the claim includes the province’s largest landowners, all of whom are major softwood lumber producers, including J.D. Irving.
By the time the motion reached the Court of Appeal, two pivotal issues decided by the motion judge had been isolated for review.
At first instance, the motion judge struck the named private defendants from the action, holding that the Wolastoqey could not pursue Aboriginal claims against private landowners for alleged constitutional breaches by the Crown. The Court of Appeal‘s three-judge panel readily upheld that ruling. (The Cowichan ruling does not squarely address this issue, leaving the status of private landowners in British Columbia uncertain.)
From a practical standpoint, the Wolastoqey ruling makes sense. Only a vanishingly small number of private landowners have the resources to participate in Aboriginal title claims, so cases are naturally directed at defendants with “deep pockets” with the capacity to absorb and resolve liability. Reflecting this reality, Wolastoqey representatives have been rather candid about their aim: not the recovery of land, but the creation of long-term, intergenerational wealth through negotiated revenue-sharing agreements tied to natural resource development.
In New Brunswick, the motion judge struck the named private defendants from the action, holding that the Wolastoqey could not pursue Aboriginal claims against private landowners for alleged constitutional breaches by the Crown.Adrian Wyld
Despite striking the private defendants, the original motion judge allowed the claim for a declaration of Aboriginal title against the Crown over private lands to proceed. The Court of Appeal reversed that ruling, reaffirming the long-standing understanding that Aboriginal title cannot be declared over privately owned land. In February, the Wolastoqey sought leave to appeal the New Brunswick court’s decision to the Supreme Court of Canada.
The New Brunswick Court of Appeal grounded its decision in the Supreme Court’s concept of reconciliation, which requires balancing Indigenous rights with the interests of all Canadians. Granting exclusive possession over private land, the Court of Appeal held, would sound the “death knell” for reconciliation with non-Indigenous Canadians.
At the same time, it formally recognized for the first time that the Wolastoqey may pursue compensation. As the Court explained, Aboriginal title over private lands may be established for the limited purpose “of substantiating its claim for damages and compensation against the Crown for the alleged wrongs as particularized in the Statement of Claim.”
In support, the Court of Appeal relied on commentary by Kent McNeil, a leading Canadian scholar of Aboriginal law, writing in The Globe and Mail: “Dispossessing the current beneficiaries of government land grants would not be just […] compensation should be paid to the Indigenous nations concerned.”
Cowichan and Wolastoqey ultimately present a choice between two conceptions of the law of Aboriginal title: one that preserves coherence and certainty, and one that does not. Wolastoqey demonstrates that proven wrongs can be addressed through compensation and negotiation without unsettling land titles or distorting the doctrine of Aboriginal title; Cowichan does the opposite. In a legal system bound by Supreme Court precedent, reconciliation is advanced not by rewriting the law, but by faithfully applying it.