Aboriginal Title And Private Property: Divergent Approaches In Cowichan And Wolastoqey

The intersection of Aboriginal title and private property rights has emerged as one of the most contentious issues in Canadian law, with two recent decisions taking markedly different approaches to this complex question.

In August 2025, the Supreme Court of British Columbia (BCSC) issued its decision in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490 (Cowichan),  marking the first time in Canadian history that Aboriginal title has been established over lands that include private, fee simple ownership interests. Four months later, the New Brunswick Court of Appeal (NBCA) reached a different conclusion in J.D. Irving, Limited et al. v. Wolastoqey Nation, 2025 NBCA 129 (Wolastoqey), holding that courts cannot declare Aboriginal title over private fee simple lands without the landowners being party to the litigation.

These decisions raise fundamental questions about whether Aboriginal title and fee simple ownership can coexist and what procedural protections private landowners are entitled to in Aboriginal title claims. This update examines both decisions, the ongoing appeals and related developments, and the implications for governments, Indigenous Nations, and property owners across Canada.

The Cowichan decision

The Cowichan Nation filed an action seeking a declaration of Aboriginal title to their traditional village of Tl’uqtinus, located on the south shore of Lulu Island in Richmond, British Columbia (the Claim Area). As previously reported in “The longest trial, a big impact: Cowichan’s Aboriginal title victory”, the Claim Area included lands owned by Canada, the Vancouver Fraser Port Authority (VFPA), the City of Richmond, and private parties. The affected private landowners were not parties to and did not participate in the litigation.

The Cowichan Nation sought:

• a declaration that the Cowichan Nation holds Aboriginal title to the Claim Area

• a declaration that the Crown grants of fee simple interest in the Claim Area infringe the Cowichan Nation’s Aboriginal title and the infringement is not justified and

• a declaration that the fee simple titles and interests in the lands owned by Canada, the VFPA and the City of Richmond within the Claim Area are defective and invalid

Following one of the longest trials in Canadian history spanning 513 days over nearly four years, the BCSC determined that descendants of the Cowichan Nation possess Aboriginal title to a portion of the Claim Area (referred to as the Cowichan Title Lands). Additionally, the BCSC concluded that the Cowichan Nation’s Aboriginal title had not been extinguished through legislative measures because the province lacked jurisdiction to do so. The Crown’s grants of fee simple title and interests within the Cowichan Title Lands were deemed an unjustifiable infringement of the Cowichan Nation’s Aboriginal title.

The BCSC also concluded that the Crown lacked both the statutory and constitutional authority to convey the Cowichan Title Lands because those lands were reserved for the Cowichan Nation. British Columbia’s Land Title Act, which ordinarily guarantees title and shields fee simple owners against recovery actions, was deemed inadequate to cure the defects in the Crown’s land grants. Consequently, the BCSC declared that all fee simple titles and interests held by Canada and the City of Richmond were defective and therefore invalid, though this declaration was suspended for 18 months to permit the parties time to make necessary arrangements.

Subsequent developments in the Cowichan matter

Since the Cowichan decision, numerous related legal proceedings have emerged. All parties involved in the case have filed appeals, including the Cowichan Nation, which contests the BCSC’s decision to recognize Aboriginal title over only a portion of their claimed territory.

Shortly after the issuance of the decision, the City of Richmond issued a notice letter to affected property owners stating that the decision had the potential to “compromise the status and validity” of the owners’ fee simple ownership.¹ The City also held a public information session and confirmed its intention to challenge several of the BCSC’s findings on appeal, including the determinations that the province lacked jurisdiction to extinguish Aboriginal title, that Crown grants of fee simple interest did not displace or extinguish Aboriginal title, and that the Land Title Act does not apply to Aboriginal title.

In November 2025, a proposed class action was filed against British Columbia and Canada on behalf of certain fee simple title holders allegedly impacted by the ruling.² The plaintiffs in that action allege that the defendants made false and misleading representations regarding the strength of registered title in British Columbia, representations that class members relied upon to their detriment. This action has not yet been certified as a class proceeding.

The next month, British Columbia Premier Eby announced that his government was developing a plan to provide $150 million in loan guarantees to support homeowners and businesses, ensuring they can access borrowing, refinance mortgages, or obtain financing for property purchases and business operations.³

On January 23, 2026, Montrose Properties, a private landowner with a significant holding in the Claim Area, filed an application in the BCSC seeking orders to add it as a party to the litigation in that court and re-open the trial. The hearing of that application has been adjourned pending production of certain documents by Montrose and the Province further to a February 27, 2026 order of the BCSC related to the extent and reasons for the delay by Montrose in bringing its application.⁴

The Wolastoqey decision

On December 11, 2025, the NBCA issued its decision in Wolastoqey. In Wolastoqey, several private companies and entities (the Industrial Defendants) appealed the lower court’s procedural ruling⁵ that had struck the claims against them, but which allowed their lands to remain in the litigation and subject to the plaintiffs’ claim for declarations of Aboriginal title against the Crown. As previously reported in “All roads lead to the Crown: the intersection of Aboriginal title and fee simple land,” the lower court ruling represented the worst possible scenario for the Industrial Defendants, as it excluded them from participating in the Aboriginal title trial, but left their lands vulnerable as a potential remedy.

The factual context of the claim involves six Wolastoqey Nations, who filed a claim (against New Brunswick, Canada and the Industrial Defendants) seeking a declaration of Aboriginal title over an area covering more than half of New Brunswick and encompassing approximately nearly 300,000 separate parcels of land. These lands include property owned by the Crown Defendants, the Industrial Defendants and other private landowners not party to the litigation.

Against the Crown defendants, the Wolastoqey Nation sought a declaration of Aboriginal title over the entire claim area, as well as damages and compensation for breach of fiduciary duty, unlawful occupation, appropriation and removal of resources. With respect to the Industrial Defendants’ lands, the Wolastoqey Nation sought certificates of pending litigation on the properties and orders quashing the Crown grants underlying the Industrial Defendants’ fee simple title, or in the alternative, orders for recovery of these lands. Regarding Crown-owned lands, the Wolastoqey Nation sought vesting of possession in their favour and, for Crown lands subject to leasehold interests, vesting of the reversion and any remainder. Notably, with respect to lands owned by non-parties to the claim, the plaintiffs sought no relief against those owners directly (only damages and compensation from the Crown defendants).

The NBCA concluded that Aboriginal title and fee simple ownership cannot coexist simultaneously. The NBCA reasoned that granting a judicial declaration of Aboriginal title would confer upon the Wolastoqey Nation many of the same bundle of ownership rights associated with fee simple ownership, including the right to determine land use, the right of enjoyment and occupancy, the right to possession, the right to economic benefits, and the right to proactive land management.

Instead, the NBCA indicated it may be possible to make a finding of Aboriginal title, which then establishes the foundation for an award of damages and compensation against the Crown defendants. The NBCA emphasized that even when the courts establish Aboriginal title, this finding does not automatically result in a declaration being issued, as courts are still required to exercise reasonable discretion in accordance with fundamental justice and due process. The NBCA characterized the approach of pursuing reconciliation through damages rather than the dispossession of private fee simple lands as both a sensible and reconciliation-friendly result.

In the result, the Industrial Defendants’ lands were removed from the claim against the Crown for a declaration of Aboriginal title. However, the NBCA held that the Wolastoqey Nation may still prosecute its claim for a finding of Aboriginal title over those lands for the purpose of substantiating its damages claim against the Crown.

On February 6, 2026, the Wolastoqey Nation filed an application for leave to appeal the NBCA’s decision to the Supreme Court of Canada.

Comparing the two approaches

The Cowichan and Wolastoqey decisions have created divergent jurisprudential approaches to the potential consequences of successful Aboriginal title claims.

Under the British Columbia framework, both Aboriginal title and fee simple title may co-exist on the same lands, with neither form of title being absolute. Under this approach fee simple title does not supersede Aboriginal title. Rather, Aboriginal title constitutes a “prior and senior right to land” that burdens fee simple title, and Crown grants do not displace Aboriginal title interests. Where lands are subject to both Aboriginal title and fee simple title, the Crown and Aboriginal title holder ought to reconcile these competing interests through negotiations. Aboriginal title holders may pursue remedial action to exercise their associated rights should negotiations fail, but until a court determines the appropriate remedy, fee simple title continues to exist with fee simple title holders able to enjoy and exercise their conventional rights on the land.

On the other hand, the New Brunswick framework takes a different position by holding that Aboriginal title and fee simple title cannot co-exist on the same lands. Where Aboriginal title is proven with respect to privately-owned lands, a court may make a finding of Aboriginal title but does not have to issue a formal declaration. The appropriate remedy in this case is financial compensation from the Crown.

Looking ahead

The Cowichan and Wolastoqey decisions raise important questions for governments, corporations, project developers, and private landowners about the extent and validity of their property rights on unceded lands that are or could be subject to Aboriginal title claims. With the Cowichan decision being appealed and the Wolastoqey Nation seeking leave to appeal to the Supreme Court of Canada, there remains uncertainty whether Aboriginal title and fee simple title can co-exist and what the appropriate remedy should be in the event of a successful Aboriginal title claim.

The divergent approaches taken by the BCSC and the NBCA underscore the need for clarity from higher courts on these fundamental questions.

Footnotes

1. See “Important Notice for Affected Property Owners,” Richmond, October 19, 2025.

2. Grewal et al. v. His Majesty the King in Right of the Province of British Columbia et al., Supreme Court of British Columbia Action No. 260720, New Westminster Registry.

3. See “Eby plans $150 million in loan guarantees for Cowichan land owners,” CTV News, December 12, 2025.

4.Cowichan Tribes v. Canada (Attorney General), 2026 BCSC 324.

5. Wolastoqey Nations v. New Brunswick and Canada, et al.,2024 NBKB 203.

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