What’s Next for Private Property in BC After First Nation Wins Title Land Rights?

What’s Next for Private Property in BC After First Nation Wins Title Land Rights

1SavePrint

Paul Rowan Brian

8/11/2025|Updated: 8/11/2025

0:00X 1

News Analysis

A recent B.C. court decision granted title land rights to a First Nation group, bringing up questions of what this means for property rights in the province.

The Aug. 7 decision by B.C. Supreme Court Justice Barbara Young is the culmination of a lawsuit filed in 2019 by Cowichan Nation, who successfully argued that areas of territory in B.C.’s Lower Mainland belongs to them.

Defendants in the lawsuit were the government of B.C., the federal government, the City of Richmond, the Vancouver Fraser Port Authority (VFPA), and the Musqueam and Tsawwassen First Nations, who consider Cowichan’s title and fishing rights to overlap traditionally shared territory.

Young’s Aug. 7 judgment is a suspended decision, which allows 18 months for the handover negotiations for the land to take place.

What the Case Is About

The plaintiff argued that the areas in question were the site and surrounding area of the Cowichan Nation’s Tl’uqtinus village according to historical and archaeological evidence, but the area was not declared by the government as Cowichan reserve land in 1846 and was sold and granted to private buyers starting in 1871.

The Hudson’s Bay Company, a chartered corporate monopoly with near-sovereign powers over large amounts of Canadian territories who acted as a territorial governor and landowner under British imperial authority until the land was transferred to Canada, recorded 108 longhouses at the same site in 1824 and officially charted the village in 1827 on its historical maps. The Crown has not explicitly recognized Tl’uqtinus as Cowichan land, but holds extensive historical records affirming its existence.

RELATED STORIES

BC First Nation Wins Lawsuit Over Land Title Rights in Lower Mainland, Fraser River

Ontario First Nations Chiefs Seek Court-Ordered Injunction Against Major Projects Bill

The federal government argued that it held legal right to the land and that indigenous rights were subject to Crown authority in the Cowichan case, citing the Crown’s authority to decide on land use and arguing that aboriginal title claims were limited in scope.

The provincial government said that the province has direct ownership and jurisdiction over the lands and the resources on them, arguing that indigenous title claims could not override provincial control.

In her 863-page judgment in the case, Young grants Cowichan Nation title land rights to lands held by Canada and managed by the VFPA under government authorization, as well as lands held by Richmond and private third party lands, comprising about 800 acres in total. The total area of Richmond is approximately 129 square kilometers, or 31,900 acres.

In the 513-day trial, the City of Richmond said its dike and infrastructure on the land in question are important for the city’s 230,000 residents, putting $100 billion in infrastructure at risk. Young said that other than the dike, the land is “undeveloped” and not occupied, ruling that the land’s importance to Cowichan “far outweighs its significance to Richmond.”

Young’s decision notes that the lands in question are owned by the federal government, VFPA, and City of Richmond, as well as private third parties and originally transferred from Cowichan to other owners “without constitutional or statutory authority” and “unjustifiably infringe [Cowichan’s] Aboriginal title.”

The Cowichan sought and were granted a declaration invalidating some of the City of Richmond and Canada’s title to the lands. However, the Cowichan did not ask the court to invalidate any title currently held by private holders.

In total, around 95 percent of B.C. including Vancouver is on lands without a formal treaty with indigenous people, meaning that the lands were never formally given up, sold, or annexed by the Crown via treaties or formal agreements. For this reason, the Cowichan ruling sets a precedent that could potentially apply to large areas of the province.

What Are the Reactions?

The Cowichan Nation, comprised of the Cowichan Tribes and the Stz’uminus, Penelakut, Halalt and Lyackson nations, have greeted the decision as a restoration of their ancestral land and strengthening of their culture and way of life around fishing on their traditional lands.

“Fundamentally, this case is about resetting their relationship with the crown,” said lawyer for the plaintiffs David M. Robbins of Woodward and Company LLP at an Aug. 11 press conference by Cowichan Tribes.

B.C. Premier David Eby has said the province plans to negotiate with the nations who are involved and possibly plans to appeal.

“Owning private property with clear title is key to borrowing for a mortgage, economic certainty, and the real estate market,” Eby said on Aug. 8. “We remain committed to protecting and upholding this foundation of business and personal predictability, and our provincial economy, for Indigenous and non-Indigenous people alike.”

More recently, B.C.’s Attorney General Niki Sharma stated Aug. 11 that the province “disagree[s] strongly with the decision” and “will be filing an appeal and seeking a stay to pause implementation until the appeal is resolved.” Sharma added that the case creates “considerable uncertainty” surrounding property rights.

Meanwhile, B.C. Conservative Leader John Rustad has asked for Young’s decision to be “appealed and overturned.”

“Losing private property rights on your home, your land, and undermining the rights that underpin our country is wrong — reconciliation cannot be achieved by taking rights away from one group and giving them to another,” Rustad said.

As of publication time, no public statements have been made by the City of Richmond, federal government, or any major political party regarding Young’s judgment.

Why Are 2 Other First Nations Opposed?

At issue is the exclusivity of the land to the Cowichan Nation and the way it pursued negotiations through the court system, with Musqueam Indian Band saying Aug. 8 that the “colonial legal system, which was not established to respect or reflect our traditional teachings,” was not the right venue for Cowichan Nation to seek a resolution to the issue.

The Musqueam Indian Band added that it is “deeply offended” by the ruling, which doesn’t respect “shared Coast Salish protocols” and disrupts “our traditional resource-sharing practices.” It added in an Aug. 11 email to The Epoch Times that “our legal team is still in the process of reviewing the more than 800 page decision.”

A spokesperson for Tsawwassen First Nation said in an Aug. 11 email to The Epoch Times that they are still reviewing the court’s decision and “will update members as more information becomes available.”

Implications of Young’s Decision

In her decision, Young wrote that the judgment would impact the “long-established status quo,” and affect the City of Richmond and third-party landowners by asserting potential “senior interest” for aboriginal title rights to land in relation to the fee simple system. B.C.’s fee simple system is the most common type of land ownership, giving the owner full legal rights to use, sell, or transfer their property—unless the land is seized due to a criminal conviction or forfeited because of unpaid taxes.

The ruling did not create new legal principles, per se, but rather applied existing law without accepting policy off ramps put forward by the defendants to definitively protect fee simple property interests.

Young’s decision extends precedent already established in 1997 by the Delgamuukw v. British Columbia case, which held that the fee simple system does not “extinguish” potential aboriginal title.

Young also cited numerous particulars in her decision, including murky title transfer between some of the lands in question, noting that Richmond had acquired some of the lands in question via tax forfeiture, used them as a landfill, and then sold them to Canada.

Cowichan Nation said at an Aug. 11 press conference that no private property owners will be disturbed as a result of the decision.

But some legal experts say there are major implications for property owners.

Dwight Newman, constitutional law professor at the University of Saskatchewan, says the judgement “implicates most private landholders” in B.C. and has “broad implications.” However, Newman says that the decision “doesn’t engage fully with those implications.”

According to Newman, very challenging legal questions are likely to occur in the future due to the “new layer of uncertainty” introduced by Young’s decision. He noted the tactical decision by the Cowichan not to put any direct claim against private landholders, but the decision affects “private landholders elsewhere in the area against whom the Cowichan Tribes could have claimed and still could.”

What’s Next

Although an appeal in the Cowichan case could lead to protracted litigation in the coming years, the decision reinforces that aboriginal title predates and can coexist with Crown and private ownership.

After the court ruling, the underlying conflict between aboriginal title and traditional private ownership, known as fee simple, remains unresolved and legally complicated. The court’s decision stops short of defining how aboriginal title will or could potentially impact privately-held lands going forward.

Looking ahead, unresolved tensions between aboriginal and fee simple title continue to create legal uncertainty. Cases like Wolastoqey Nations v. New Brunswick and Canada show a trend of indigenous claims expanding into territories that include private lands, raising legal questions about compensation, coexistence of titles, or government-mediated settlements.

Certain types of properties may become hotbeds of litigation, including waterfront properties, rural ranchlands, resource extraction properties, urban developments, public infrastructure crossing claimed lands, and tourism operations on leased private land.

While this decision has not affected private properties due to the specific nature of the remedy sought by Cowichan Nation, it does signal a potential shift. Future cases could redefine how overlapping indigenous and private property rights coexist. Until courts or legislatures provide clearer guidance, landowners and indigenous nations may face ongoing legal complexities and negotiations.

Sign up for Epoch Focus newsletter. Focusing on one key topic at a time, diving into the critical issues shaping our world. Sign up with 1-click >>3Share this article

See 1 comments

Paul Rowan Brian

Author

Paul Rowan Brian is a news reporter with the Canadian edition of The Epoch Times.