Understanding the Cowichan Decision
The recent Cowichan Tribes decision is a historic ruling with possible big picture implications, and while the full impact will take years to unfold, there is no doubt many of you may be thinking a lot about this decision and how it may impact you as a resident of BC right now. So let’s dive into what you need to know right now.
A Quick Background
Long before British Columbia joined Confederation, Governor James Douglas “appropriated” various areas of land with the intention of creating reserves. One of those areas was Tl’uqtinus, a traditional Cowichan summer village located on the south arm of the Fraser River, in what is now the City of Richmond.
Beginning in 1871, the Crown issued fee simple grants over this land, eventually transferring properties to federal bodies (including the Vancouver Fraser Port Authority), the City of Richmond, and private owners. At no point did the Cowichan Nation consent to these grants.
After a 513-day trial, the court found largely in favour of the Cowichan Nation, recognizing Aboriginal title over a portion of the claimed lands, now referred to as the Cowichan Title Lands. The decision also confirmed an Aboriginal right to fish for food in that area.
What the Court Decided
The ruling includes several major declarations:
Aboriginal title exists over part of the claimed area
The Crown unjustifiably infringed this title when it granted land to third parties
As a result, the fee simple interests held by Canada and the City of Richmond (with the exception of the YVR Fuel Project Lands) were declared invalid
The court suspended this invalidation for 18 months, giving the parties time to negotiate a transition framework
The decision also reinforces that Aboriginal title and fee simple interests can coexist, but how that coexistence looks depends on the circumstances
Importantly, Cowichan Nation did not challenge private property owners in this case. Their titles remain valid for now, and any future claims involving private owners would be dealt with individually.
Here’s what to take away:
The court rejected the idea that Aboriginal title and private ownership are inherently incompatible
British Columbia now has a constitutional duty to negotiate in good faith to reconcile Crown-granted fee simple interests with Indigenous land rights
This responsibility applies regardless of who owns the land today
Much of BC remains unceded territory, so this decision could influence future negotiations and court cases across the province
The Cowichan case is being appealed, so this isn’t the final word
Why This Matters for Real Estate
BC’s land title system has long existed separately from Indigenous land rights. This ruling brings those two realities closer together. Over time, we may see:
Increased negotiations between the provincial government and First Nations over lands with historical claims
Potential new processes around permitting, development, and due diligence
Greater recognition of Indigenous governance and stewardship in land planning
More clarity (eventually) on how Aboriginal title and fee simple ownership coexist on the same land
For now, nothing changes for private homeowners in the Cowichan Title Lands. But the decision is a clear reminder that the landscape of land rights in BC is shifting.
The Bigger Picture
The Cowichan decision is a significant step toward reconciliation. It acknowledges that for generations, Indigenous peoples were excluded from lands that were theirs, often becoming “trespassers” on their own territory.
By affirming Aboriginal title and calling on the Crown to negotiate respectfully and proactively, the ruling sets a framework for addressing these historical injustices in a modern, practical way. And as more First Nations pursue recognition of their lands, this case may become a guiding example for how title and private ownership can be harmonized going forward.
Final Thoughts
As a home owner and real estate agent, I am very invested in the ultimate outcome of this case. The decision is being appealed and title remains in place until the parties reach an agreed upon arrangement, so from my perspective there is no immediate reason to be alarmed. For me, this moment feels like an opportunity to understand more about the history that led to this point and to watch how the province continues to move toward clearer and more respectful pathways for Indigenous land rights and fee simple ownership to coexist.