Written by: Erin Barnes, Jacob Caouette, Clayton Bragg, and Sara Sebti

Background

This historic decision from the Supreme Court of British Columbia affirms the Cowichan Nation – including Cowichan Tribes, Stz’uminus, Penelakut, and Halalt – holds Aboriginal title to a portion of their lands known as Tl’uqtinus. Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490 establishes that these lands, located along the south arm of the Fraser River (Quw’utsun River), include submerged riverbed areas previously held by the Province.[1] The Court also confirmed Cowichan’s constitutionally protected right to fish this part of the river.

This decision followed over 500 days of trial, one of the longest trials in Canadian history. The trial record included oral history, expert evidence, ethnographic reports, and thousands of historical documents. Many witnesses to the history and laws of Tl’uqtinus, including late Chief William Seymour Sr., Luschiim (Arvid Charlie) and Chief Pahalicktun (Richard Thomas), testified to Cowichan’s continued presence and occupation.[2]

Findings of Aboriginal Title and the Invalidation of Fee Simple

The Court found that the Province’s grants of fee simple ownership over Tl’uqtinus, along with its vesting of soil and freehold in highways to the City of Richmond, were unjustified.[3] Canada and Richmond’s current fee simple titles in the Cowichan Title Lands are, with limited exceptions, legally invalid. Notably, sections 23 and 25 of the Land Title Act, which would typically protect the interests of registered owners, were found inapplicable to Cowichan title lands.[4] In a striking statement, the court posed a rhetorical question:[5]

“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”.”

Implications for the Private Land Owners on Lulu Island

The Cowichan Nation were granted a declaration that they have Aboriginal title to a portion of Tl’uqtinus, which includes title to land that is owned by non-parties to the case. In 2017 BCSC 1575, the court found that “at this stage, [Cowichan Nation does] not seek to invalidate or render defective the fee simple interests held by private landowners, there was no need to give them notice.”[6] The Court in Cowichan recognized that this would have an impact on private land owners, but was satisfied that if subsequent proceedings were brought forward that the land owners would have an opportunity to be heard and bring forward defences.[7]

British Columbia now owes a fiduciary obligation to the Cowichan Nation in respect of their Aboriginal title lands, which includes the private fee simple lands.[8] In doing so, British Columbia must negotiate with Cowichan Nation to reconcile their Aboriginal title with fee simple interest in a way that aligns with the honour of the Crown. The court determined that this declaration is a foundation and a catalyst for the negotiations.[9]

Implications for Land Systems in British Columbia

The decision has significant implications for how land is managed in British Columbia. The province’s land title system is founded on the principle of indefeasibility – meaning that once a title is registered, it is considered legally final and conclusive. In practice, this ensures certainty and stability in property ownership, but it also means that any challenges to registered title must meet a high legal threshold. The decision confirms that the assumption no longer holds where Aboriginal title is established.[10] Provincial grants will no longer be permitted to override section 35 of the Constitution Act.[11] Thus, the Province’s authority to grant land is not absolute. Where those grants intersect with proven Aboriginal title, they are constitutionally vulnerable.

In powerful statements the court stated:

“Reconciliation does not mean that Indigenous peoples must always sacrifice their right to their established interest in land. Fee simple interests in this land are not superior to Aboriginal title.”[12]

and

“I find that change to the status quo in the Cowichan Title Lands must occur in this case to achieve justice.”[13]

Questions Moving Forward

While this decision affirms that Aboriginal title may supersede land held in fee simple, key questions remain. Firstly, the Court accepted that Aboriginal title can apply to submerged lands, which challenges the assumption that such area belongs to the Crown by default. What will this mean for the ways the Province is able to manage tidal zones or foreshore access? Secondly, the use of expert evidence in this case was significant. The record included export reports, ethnographic analysis and historical documentation, supported by generations of oral history. What happens in cases where this kind of access or funding is not available?

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[1] Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490 at para 1 [Cowichan].

[2] Ibid at paras 159, 197 and 678.

[3] Ibid at para 6.

[4] Ibid.

[5] Ibid at para 3589; bolded and italicized for emphasis.

[6] Ibid at para 3584.

[7] Ibid at para 3587.

[8] Ibid at para 3591.

[9] Ibid at para 3591.

[10] Ibid at para 2255.

[11] Ibid.

[12] Ibid at para 3553.

[13] Ibid at para 3554.