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Landmark Decision in Cowichan Tribes Case
On August 7, 2025, the British Columbia Supreme Court delivered a significant ruling in the case of Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490. This decision, which involved complex issues of Aboriginal title and rights, has far-reaching implications for Indigenous communities across the country.
In this post, we provide an overview of the key issues and outcomes of the decision.
This is one of a series of blogs about the Cowichan Tribes decision. A complete list of blogs in this series is linked at the end of this post.
What is this case about?
The Cowichan Tribes, the Stz'uminus First Nation, Penelakut Tribe, and Halalt First Nation, along with individual representatives, brought a representative action on behalf of all descendants of the historic Cowichan Nation. These plaintiffs sought declarations of Aboriginal title over approximately 1,846 acres of land, including a traditional summer village site known as Tl'uqtinus, located on Lulu Island in what is now the City of Richmond, British Columbia. The plaintiffs also claimed an Aboriginal right to fish for food on the south arm of the Fraser River.1
The defendants included Canada, British Columbia, the City of Richmond, the Vancouver Fraser Port Authority, the Musqueam Indian Band, and the Tsawwassen First Nation.
The plaintiffs did not ask for remedies against private third-party landowners in the claim area.2
Figure 1 – A map of the claim area. The boundary of the lands that the Cowichan Nation established Aboriginal title over are outlined in black.3
Key Outcomes
The court's decision was largely in favor of the Cowichan Nation. It granted declarations that the Cowichan Nation holds Aboriginal title to a significant portion of the claimed lands, roughly half of the area. The court also recognized the Cowichan Nation's constitutionally protected Aboriginal right to fish for food on the south arm of the Fraser River.
Aboriginal Title and Crown Grants
The Court found that the Cowichan Nation has Aboriginal title to roughly half of the claimed lands, referred to as the Cowichan Title Lands. This included their historical village site and surrounding lands and coastal lands now submerged in water.4 Recognition of Aboriginal title over submerged lands is itself a significant development in the law.
Over several decades, various parties, including the federal Crown, the City of Richmond, and various private parties, acquired the claimed lands in fee simple.
The court also made the important finding that the Crown's grants of fee simple land to settlers did not extinguish the Cowichan Nation's title.
These grants were not valid, said the court, because the Provincial Crown lacked the authority to make them post-Confederation.5 The Crown's actions to dispose of the lands, including through land grants and municipal tax sales, unjustifiably infringed on the Cowichan Nation's Aboriginal title.6
The court rejected arguments that the fee simple titles held by Canada, Richmond and private parties were protected by the Land Titles Act. It held that if the Act did apply, it would unjustifiably infringe on the Cowichan Nation's Aboriginal title, contrary to the Constitution Act, 1982.7
It is important to note that while the court declared Aboriginal title over the lands, the ruling did not automatically displace existing fee simple titles held by private individuals.
Instead, the Court said that the Crown has to negotiate with the Cowichan Nation to reconcile Aboriginal title with overlapping fee simple interests. Aboriginal title holders may still seek the usual remedies for breach of interests in land, as adapted to the unique "sui generis" nature of Aboriginal title.8
Musqueam's Competing Claim
The Musqueam Indian Band was a defendant in this case. Musqueam opposed the Cowichan Nation's claim, asserting historical control over the region. However, the court found the Cowichan Nation's evidence of exclusive occupation more persuasive and rejected Musqueam's arguments.9
Limitations
Importantly, the court held that it was not too late for the plaintiffs to bring their claim. In legal-speak, it was not "time-barred" by limitations statutes.
The court found that the ongoing nature of infringement of the plaintiffs' Aboriginal title means that the limitation period never began to run. In other words, the plaintiffs' rights are infringed on a daily, ongoing basis. This means it is not "too late" for them to seek remedy in the court. The court also found that provincial limitations legislation could not constitutionally extinguish Aboriginal title.
The court's findings about limitations periods are a significant development in the law with potential wide-reaching implications for Aboriginal title and rights claims.10
Right to Fish
The court recognized the Cowichan Nation's constitutionally-protected Aboriginal right to fish for food at the south arm of the Fraser River. The Court refused to restrict the right to specific species or seasons, underscoring the court's acknowledgment of the Cowichan Nation's historical fishing practices.11
Remedies
The court granted a series of declarations, which it said were necessary to clarify the Cowichan Nation's rights and legal position as they return to negotiations with the Crown.12
The court's key declarations were that:
- The plaintiffs established the title and rights claim;
- The Crown had unjustifiably infringed the Cowichan Nation's title; and
- Canada and Richmond's fee simple titles were defective and invalid.
The court did not make any declarations about fee simple lands owned by private third parties. This issue was not in front of the court and the Cowichan Nation did not seek recovery of the private fee simple lands, nor seek exclusive use or occupation of those lands at this time. Rather, the Cowichan Nation sought a mechanism for negotiating the reconciliation of their Aboriginal title.13
Conclusion and Future Implications
This landmark decision is a significant step forward in recognizing and affirming Aboriginal title and rights in Canada. However, the full implications of this case will only unfold over time, especially as the case is likely to be appealed. British Columbia and Richmond have already announced their intention to appeal, and other parties may follow suit.
Footnotes
1. Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490 at paras 1-2 [Cowichan Tribes].
2. Cowichan Tribes at para 3.
3. Cowichan Tribes, Schedule A.
4. Cowichan Tribes at paras 1241-1246, 1535–1538, 1573-1578, 1649-1653.
5. Cowichan Tribes at paras. 2033, 2045, 2056, 2069, 2070, 2080-2081.
6. Cowichan Tribes at paras 2670, 2852.
7. Cowichan Tribes at paras 2258–2262, 2269.
8. Cowichan Tribes at paras 2205-2208.
9. Cowichan Tribes at paras 1526-1534.
10. Cowichan Tribes at paras 2958, 2980, 3049.
11. Cowichan Tribes at paras 3285, 3471-3472, 3490, 3510.
12. Cowichan Tribes at para 3538.
13. Cowichan Tribes at para 3541.
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