Farmland and Country Meadows Golf Course, left, and industrial lands, right, that include a Canadian Tire distribution centre, which fall within the boundaries of a Cowichan Nation Aboriginal title claim, in Richmond, B.C., on Aug. 22.DARRYL DYCK/The Canadian Press
The Supreme Court of Canada has defined Aboriginal title as the right to exclusive use and occupation of the land. This has been established for decades now, but just what it means remains surprisingly vague.
What has been clear – until recently – is that the rights of private landowners in Canada are protected through fee simple title, which has long been considered the strongest interest in property ownership, promising the title holder exclusive ownership.
The courts have just started to grapple with how to reconcile those two rights of possession. And don’t look in the books of Canadian statutes to answer the question – they don’t exist.
The B.C. Supreme Court has exposed the need for clarity, following an exhaustive trial that spanned 513 days.
In an Aug. 7 decision, Justice Barbara Young upheld the Cowichan Tribes’ claim to a portion of land in Metro Vancouver. In doing so, she found that Aboriginal title is a “prior and senior right to land.”
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Just what that means in practical terms is as clear as mud for private landowners in the Richmond area where Cowichan title has been declared. Those owners may be left in agonizing legal limbo for years to come.
“A precedent that will follow from this case is that provincial Crown grants of fee simple interest do not extinguish nor permanently displace Aboriginal title,” the decision reads. It found the authority of the B.C. Land Act, under which fee simple title is registered, does not apply on Aboriginal title lands.
But in the same judgment, Justice Young says the two types of ownership can coexist: “The question is not whether Aboriginal title can exist over fee simple lands, but whether fee simple interests can exist on Aboriginal title lands. In my view, the law has evolved and the answer to that question is ‘yes’.”
Her decision rests in part on previous cases that have chipped away at the question of which form of title takes precedence. In 2023, the Saugeen First Nation in Ontario persuaded the courts that its unceded reserve lands displaced the fee simple rights and interests of private landowners in Sauble Beach. In 2024, a court in New Brunswick ruled that if the Wolastoqey Nations can prove Aboriginal title, that title would apply over all lands within the claim area, including private lands. Their land claims cover more than 50 per cent of the province.
All parties to the Cowichan decision – including rival First Nations – are asking the B.C. Court of Appeal for the right to challenge Justice Young’s decision.
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And all three land claims cases are expected to end up on the doorstep of the Supreme Court of Canada – eventually. A final ruling is unlikely to be delivered before the end of this decade.
B.C. Premier David Eby has expressed alarm about these rulings as they stand today, but he dismissed calls for a reference case to hasten a final ruling. Instead, he is asking that the courts expedite their decision-making, “so that we can get back to a place where we understand what our obligations are and how we meet them.”
Increasingly, Aboriginal title is being affirmed by the courts. The Tsilhqot’in, the Nuchatlaht, the Haida and the Cowichan now have Constitutionally protected rights to lands within their traditional territories. Governments have shied away from providing a legislative framework to lay out what that means. Can environmental protections, for example, override what a Nation chooses to do on its lands?
Justice Young has instructed the parties to go back to the table and negotiate a settlement with the Cowichan. Negotiation might resolve the issues for specific property owners in Richmond, but greater certainty is needed for all Canadians about the scope of Aboriginal title.
The federal government acknowledges there are “potential significant nationwide implications” where clarity is needed on the complex issues involved in the Cowichan case, especially on private property rights. The Supreme Court is the correct place to resolve the questions that have been created by the lower courts.
In the meantime, however, federal and provincial legislators should not be waiting on the sidelines. They can and should craft legislation to establish where Aboriginal title fits in the pantheon of Canadian land laws.