Is Aboriginal Title a Threat?
When headlines suggest that private property rights in British Columbia are under threat, it’s natural for homeowners to feel concerned. The recent Cowichan Tribes v. Canada (Attorney General) decision has generated intense political debate — but much of the public reaction misses the key facts. In this article, I break down what the ruling actually says, what it doesn’t say, and why fee simple homeowners in Richmond and across B.C. are not facing the sweeping risks some commentators have suggested.
The Cowichan Decision — What It Really Means for Property Owners in B.C.
In 2025, the Cowichan Tribes v. Canada (Attorney General) decision from the British Columbia Supreme Court sparked strong political reactions and headlines suggesting private property in B.C. could be at risk.
The reality is far more measured.
This post breaks the case down clearly and concisely — and explains why it does not threaten everyday homeowners.
What Was the Case About?
The case focused on a specific historic site along the South Arm of the Fraser River.
The Court found two key facts:
- Cowichan people had a large, permanent settlement there before 1846, when Britain asserted sovereignty over what is now British Columbia.
- Senior colonial officials illegally claimed and sold those lands to themselves and others, despite policies requiring Indigenous settlements to be protected.
Because of those specific historical facts, the Court ruled that the Cowichan hold Aboriginal title to the original settlement lands.
This was not a province-wide ruling. It applied to a clearly defined and historically documented location.
What Is Aboriginal Title?
Aboriginal title is a constitutional right recognized under Section 35 of the Constitution Act, 1982. It reflects the fact that Indigenous nations occupied and governed their lands long before European settlement.
Importantly:
- It is not newly created.
- It is not symbolic.
- It has been recognized in Canadian law for decades.
Key Supreme Court of Canada decisions — including Calder v. British Columbia (Attorney-General) and Delgamuukw v. British Columbia — confirmed that Aboriginal title exists unless it was lawfully extinguished.
To prove Aboriginal title, a First Nation must meet a strict legal test:
They must show exclusive use and occupation of specific lands prior to 1846.
That is a high evidentiary bar.
Does This Override Private Property?
No.
This is where much of the public confusion lies.
There are two types of “title” at play:
- Fee simple title (what most homeowners have) — created under provincial land title legislation.
- Aboriginal title — a constitutional right protected under Canada’s Constitution.
In Canada’s legal system, constitutional rights sit above provincial statutes. That hierarchy has existed since Constitution Act, 1982.
However — and this is critical — the Court did not cancel private titles.
Instead, it ruled that the federal and provincial governments (the “Crown”) must negotiate in good faith with Cowichan to reconcile interests.
The obligation is on government — not individual homeowners.
What Did the Court Actually Order?
The Court directed governments to:
- Negotiate with Cowichan Tribes.
- Remedy the historic wrongdoing.
- Act in accordance with the “honour of the Crown” — a long-standing constitutional principle requiring governments to act fairly and with integrity in dealing with Indigenous peoples.
This approach is consistent with other cases across Canada. Courts typically require governments to reconcile competing interests through negotiation rather than displacing private landowners.
Why the Strong Political Reaction?
The decision arrived during economic uncertainty and affordability concerns. Some political leaders framed it as a threat to private property or economic stability.
But the ruling is:
- Fact-specific
- Historically grounded
- Narrow in geographic scope
- Focused on government responsibility
It does not apply broadly across Richmond or the rest of British Columbia.
Practical Reality for Property Owners
There are several built-in limits:
- Aboriginal title claims require extensive historical evidence.
- Claims are site-specific.
- Courts generally place responsibility on governments — not third-party landowners.
- Negotiated settlements are common and workable.
A useful example is the Kits Point case in Vancouver, where historic land issues were resolved through collaboration — and today the Squamish Nation is developing thousands of much-needed rental homes on those lands.
The sky did not fall then — and it is not falling now.
Bottom Line
The Cowichan decision:
- Does not eliminate private property rights.
- Does not invalidate fee simple ownership across B.C.
- Does not create sweeping uncertainty for homeowners.
It reinforces a long-standing constitutional principle:
When governments acted unlawfully in the past, they must address those wrongs through negotiation today.
For homeowners and buyers, fee simple title remains secure.
For governments, the responsibility is reconciliation — not rhetoric.