Cowichan Tribes v. Canada (Attorney General)

Cowichan Tribes v. Canada (Attorney General), 7 BCLR (7th) 1, 2025 BCSC 1490

Problem: Revisiting the MTI Title Claim

B.M. Young J. – #

Executive Summary #

The plaintiffs, on their own behalf and on behalf of the descendants of the historic Cowichan Nation, brought this action seeking a declaration of Aboriginal title to their traditional village of Tl’uqtinus on the south arm of the Fraser River, and to its surrounding lands and submerged lands. They also seek a declaration of an Aboriginal right to fish the south arm of the Fraser River for food.

The Claim Area, which the plaintiffs call the Lands of Tl’uqtinus, is located on what is now the south shore of Lulu Island, across from Tilbury Island, in Richmond, British Columbia. Today, land in the Claim Area is owned by the federal Crown, the Vancouver Fraser Port Authority (“VFPA”), the City of Richmond (“Richmond”), and private third parties. It covers approximately 1,846 acres of land, as well as certain surrounding lands held by Canada or Richmond. See the map attached to the reasons for judgment as Schedule “B”, depicting the Federal Tl’uqtinus Lands and the Richmond Tl’uqtinus Lands.

Six defendants opposed the plaintiffs’ claim: Canada, British Columbia, Richmond, the VFPA, Tsawwassen First Nation, and the Musqueam Indian Band.

The trial commenced in September 2019. There were a total of 513 trial days. The Court heard oral history evidence and considered a substantial volume of historical documents and ethnographic evidence. Expert evidence was tendered in fields including archaeology, socio-cultural anthropology, history, ethnohistory, ethnogeography, ethnobotany, ethnoecology, genealogy, historical geography, cartography, cartology and transportation economics.

The plaintiffs have established Aboriginal title to a portion of the Claim Area, including a strip of submerged lands, referred to in the reasons for judgment as the “Cowichan Title Lands”. They have also established a right to fish the south arm of the Fraser River for food.

This case raised complex, and in many instances, novel issues. The following is an overview of the Court’s central findings:

  • The Cowichan (Quw’utsun mustimuhw) were an Indigenous people comprised of 11 local groups prior to and at the time of European contact in the early 1790s, and at the time the British Crown asserted sovereignty in British Columbia at 1846 and after (at paras. 463, 498). The members of the Cowichan Tribes, Stz’uminus First Nation, Penelakut Tribe, Halalt First Nation, and Lyackson First Nation are the descendants of the historic Cowichan people and the 11 local groups. As the modern-day successor groups to the Cowichan as an Indigenous people, the four plaintiff bands and the Lyackson are the proper rights holder for Aboriginal rights and title in this case (at paras. 523, 1654).

  • Historically, the Cowichan occupied several winter villages on the east coast of Vancouver Island from what is now Cowichan Bay to the south to as far north as Chemainus. They also had winter villages on the southern Gulf Islands, including Kuper (Penelakut) Island, Thetis Island, Valdes Island, and Willy (Halalt) Island.

  • The Cowichan relied on fishing, gathering, and hunting for their food and travelled to various regions to exploit resources. Their seasonal round began in the spring on Vancouver Island and the Gulf Islands harvesting fish, shellfish and camas, plus some sea mammals, birds, and game.

  • Every summer, the Cowichan travelled en masse to their permanent post and beam village at the Lands of Tl’uqtinus on the south arm of the Fraser River, where they lived and fished — primarily for salmon — and harvested resources together.

  • The plaintiffs have established Cowichan Aboriginal title to a portion of the Claim Area, the Cowichan Title Lands. Prior to, at, and after 1846, the Cowichan sufficiently and exclusively occupied their permanent village, its surrounding lands, and the strip of submerged lands in front of the village at Tl’uqtinus (at paras. 1241-1246, 1535-1538, 1573-1578, 1649-1653).

  • In 1853, Governor James Douglas told the Cowichan that the Queen had given him a special charge to treat them with justice and humanity, so long as they remained at peace with the settlements. This was a solemn promise that engaged the honour of the Crown, which is a constitutional principle that requires the Crown to act honourably in its dealings with Indigenous peoples (at paras. 1722, 1726-1727, 1730).

  • In 1859 and 1860, Douglas appropriated — essentially, meaning removed or set apart — Indian settlements from the Crown’s land disposition processes (which included sale and pre-emption). These settlements were set aside for the purpose of eventual Indian reserve creation (at para. 1838).

  • At that time, the Cowichan continued to occupy their village at Tl’uqtinus and its surrounding lands. It was an “Indian settlement” as colonial officials understood that term. Nonetheless, the Cowichan’s settlement at Tl’uqtinus was never established as an Indian reserve for the Cowichan. Instead, the Lands of Tl’uqtinus were sold to settlers without the Cowichan’s knowledge (at paras. 1817-1818).

  • Between 1871-1914, Crown grants of fee simple interest were issued over the whole of the Claim Area, including the Cowichan Title Lands. The first purchase of Cowichan Title Lands was made by Richard Moody who was the first Chief Commissioner of Lands and Works for the Colony of British Columbia and was tasked with ensuring that Indian reserves were created at sites of Indian settlements. Because occupied Indian settlements were appropriated, and could not be sold, most of the Crown grants in the Cowichan Title Lands were made without statutory authority (at paras. 2033, 2045, 2056, 2069, 2070).

  • British Columbia was admitted into Canada on July 20, 1871 under the BC Terms of Union. The effect of Article 13 of the BC Terms of Union was to extend appropriation of Indian settlement lands post-Confederation, limiting the Province’s ability to sell the land without first dealing with the Cowichan’s interest. As a result, the post-Confederation Crown grants in the Cowichan Title Lands were made without constitutional authority because they were made under legislation that was constitutionally limited by Article 13 (at paras. 2080-2081).

  • The Crown grants of fee simple interest deprived the Cowichan of their village lands, severely impeded their ability to fish the south arm of the Fraser River, and are an unjustified infringement of their Aboriginal title. Subsequent dispositions of the Cowichan’s land, including BC’s vesting of Richmond with fee simple interests and the soil and freehold of highways, are also unjustified infringements. Additionally, some of Canada and the VFPA’s activities on the Cowichan Title Lands unjustifiably infringe the Cowichan’s Aboriginal title (at paras. 2670, 2852).

  • The Province has no jurisdiction to extinguish Aboriginal title. The Crown grants of fee simple interest did not displace or extinguish the Cowichan’s Aboriginal title (at paras. 2188-2190).

  • Aboriginal title lies beyond the land title system in British Columbia. Sections 23 and 25 of the Land Title Act, R.S.B.C. 1996, c. 250 do not apply to Aboriginal title. Accordingly, Richmond’s reliance on ss. 23 and 25 as a statutory defence is not made out. Richmond’s fee simple interests in the Cowichan Title Lands are not conclusive evidence that Richmond is indefeasibly entitled to that land as against the Cowichan as Aboriginal title holders (at paras. 2258-2262).

  • BC and Richmond advanced limitations defences, as well as equitable defences of bona fide purchaser for value without notice and laches. The plaintiffs’ invocation of estoppel to the defences is not made out (at paras. 2881, 2890). Nevertheless, the plaintiffs’ claims are not time-barred by limitations statutes (at paras. 2902-2905), and the equitable defences are not made out (at paras. 3150-3151).

  • The plaintiffs have established a right to fish for food on the south arm of the Fraser River. Prior to, at, and after European contact in the early 1790s, the Cowichan fished the south arm of the Fraser River for food. This practice was integral to their distinctive culture, and continues to be so today (at paras. 3505, 3509-3511). The Cowichan’s historical fishing practice was not dependent on permission from the Musqueam or any other Indigenous group (at para. 3471).

Accordingly, the Court makes six declarations, which are summarized below:

  • The Cowichan have Aboriginal title to the Cowichan Title Lands within the meaning of s. 35(1) of the Constitution Act, 1982;

  • The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in certain highway lands in the Cowichan Title Lands, unjustifiably infringe the Cowichan’s Aboriginal title;

  • Except for Canada’s fee simple titles and interests in certain lands (the “Vancouver Airport Fuel Delivery Project Lands”), Canada and Richmond’s fee simple titles and interests in the Cowichan Title Lands are defective and invalid;

  • With respect to the Cowichan Title Lands, Canada owes a duty to the Cowichan to negotiate in good faith reconciliation of Canada’s fee simple interests in the Vancouver Airport Fuel Delivery Project Lands with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown;

  • With respect to the Cowichan Title Lands, BC owes a duty to the Cowichan to negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown; and

  • The Cowichan have an Aboriginal right to fish the south arm of the Fraser River for food within the meaning of s. 35(1) of the Constitution Act, 1982.

See para. 3724 of these reasons for the declarations of this Court. See also the map attached to these reasons as Schedule “A”, which is provided as a visual aid, where the black line depicts the boundary of the Cowichan Title Lands.

[There are several complex components to this case and to Justice Young’s decision. On the key issue of proof of Cowichan Aboriginal Title, Justice Young found, applying the legal framework from Delmaguukw and Tsilhqot’in that the Cowichan have Aboriginal Title to the Cowichan Title Lands within the meaning of s. 35(1) of the Constitution Act. On the question of sufficiency, the Court rejected the argument that “sufficiency requires a permanent physical presence of the plaintiffs’ ancestors themselves and not just their dwelling at the Claim Area.” The Court also considered which degree of “control” is required to satisfy the sufficiency requirement and observed that “it may be that a court’s assessment of control turns much on questions of exclusivity.” With respect to exclusivity, the plaintiff’s position that they had the intention and capacity to retain exclusive control of the Claim Area was challenge by the Musqueam, who argued that “the evidence falls short of establishing the plaintiffs had exclusive or exclusionary control of the Claim Area as against Musqueam or other hən̓q̓əmin̓əm̓ speaking peoples on the Fraser River.” Justice Young rejected the Musqueam position, finding that “giving or withholding of permission to access lands may show intention and capacity to control the land” and stressed the “importance of considering ’the nature of other groups in the area, and the characteristics of the land in question’, and how ’the lack of challenges to occupancy may support an inference of an established group’s intention and capacity to control’”, relying on Tshilqot’in. Finally, on continuity, the plaintiffs took the position that they were not required to prove continuity because they were not relying on present occupancy of the land, while several defendants argued for a “substantial connection” test. Justice Young concluded “that continuity is fulfilled where a claimant group establishes that they are the descendants of the Aboriginal rights-holding groups, and establishes sufficient pre‑sovereignty occupation.” The Cowichan therefore satisfied the test for proof of Aboriginal Title.

On the issues of whether the Crown infringed on Cowichan Aboriginal Title and whether this infringement was justified, the Court affirmed that Crown activity prior to 1982–here, in particular the issuing of Crown grants in Cowichan lands–can be the basis of the infringement analysis. Justice Young concluded that the Crown infringed and was continuing to infringe on Cowichan Aboriginal Title and that such infringement was no justified. With respect to justification, the Court held that “[the Crown breached its duty to consult with the Cowichan when the Crown grants of fee simple interest were contemplated” and that “the Crown owes the Cowichan a fiduciary duty in respect of their Aboriginal title lands and the continuing interferences must be consistent with that duty.” Justice Young observed that “[i]ncursions on Aboriginal title land cannot be justified if they deprive future generations of the benefit of the land… It is plain that the Crown grants of fee simple interest in the Cowichan Title Lands run afoul of that principle, as they exclude the Cowichan from their land, while granting conflicting rights to the fee simple title holders to exclusively occupy and use it.

Based on the analysis and conclusions with respect to proof of Cowichan Aboriginal Title summarized above, the excerpt below from Justice Young’s decision addresses the question of extinguishment—specifically, whether Cowichan title was displaced by the Crown grant of fee simple interests in the land.]

Part 6.1 Cowichan Aboriginal Title and the Fee Simple Interests in Cowichan Title Lands #

[…]

B. Was the Cowichan’s Aboriginal Title Displaced? #

I turn now to consider whether the Cowichan’s Aboriginal title has been permanently displaced by the Crown grants of fee simple interest or is temporarily displaced so long as the fee simple interests persist. This necessarily entails a consideration of the relationship between fee simple interests and Aboriginal title and whether the two can coexist.

1. Richmond’s position

Richmond says Aboriginal title and fee simple title cannot coexist, and as a result Aboriginal title is necessarily terminated by Crown grants of fee simple interest. Richmond says because the Claim Area lands were completely granted long before 1982, and because there are no Crown lands within the Claim Area, any in rem rights that the plaintiffs’ ancestors once had have fallen away forever. The descendants of Aboriginal people who had title in 1846 may pursue other remedies against the Crown, but a declaration of Aboriginal title is unavailable. Richmond distinguishes its position from extinguishment, arguing that if the Province was without jurisdiction to extinguish Aboriginal title then the Crown grants of fee simple interest nonetheless necessarily terminated the Cowichan’s Aboriginal title.

Richmond submits that courts have repeatedly recognized the fact that a grant of fee simple interest in land is fundamentally inconsistent with the notion of Aboriginal title. The two are mutually exclusive; other than in situations of joint tenancy or tenancy in common at common law, there cannot be two or more persons each with an independent right to exclusive use and occupation of a single piece of land.

In support of the proposition that fee simple interests in land and Aboriginal title are incompatible, Richmond relies on Hamlet of Baker Lake v. The Queen [1980] 1 F.C. 518, 1979 CanLII 4085 [Baker Lake]; Delgamuukw SCC; Fejo v. Northern Territory, [1988] H.C.A. 58 [Fejo]; Skeetchestn Indian Band and Secwepemc Aboriginal Nation v. Registrar of Land Titles, Kamloops 2000 BCCA 525 [Skeetchestn ]; Yarmirr ; Saugeen First Nation ONSC; and Saik’uz BCSC.

Richmond refers to Australian cases that consider extinguishment, notably Mabo v. Queensland (No. 2) [1992] H.C.A. 23, (1992) 175 C.L.R. 1(Australia H.C.) and Fejo. Australia has legislation to protect Aboriginal rights in certain contexts, but it does not have a system of constitutionally enshrined Aboriginal rights as we do in Canada. Richmond says displacement of Aboriginal title occurred prior to the enactment of s. 35 of the Constitution Act, 1982 so the law from Australia is helpful.

2. BC’s position

BC’s displacement argument rests on a somewhat different basis and speaks to the content of Aboriginal title rather than its existence. BC submits that the legal incompatibility between fee simple title and Aboriginal title is the operative requirement to suspend the right of exclusive use and occupation grounded in Aboriginal title. According to BC, that is because the fee simple interests are valid and entitle their holders to exclusive use and occupation of those lands. The Crown grants suspended the Aboriginal interest. The fee simple interests limit the nature and scope of any “presently exercisable right” that the plaintiffs may have. In this way, Aboriginal title rights, including the right to exclusive use and occupation, are displaced so long as those incompatible interests exist. BC says it may be that certain incidents of Aboriginal title — such as a limited economic component — could be consistent with the existence of fee simple interests.

In support of its displacement theory, BC submits that prior to a declaration of title, an Indigenous group has only an interest in land that is not yet legally recognized. The Crown may continue to manage the resource consistent with the honour of the Crown which requires it to respect unproven claims: Tsilhqot’in SCC at paras. 95 and 113. BC says it follows from this that the Crown had, at all relevant times, full authority to issue the Crown grants from which the current fee simple interests derive. As previously set out, I found that it did not. In any event, BC says the fee simple titles are legally distinct from the Crown grants and are valid irrespective of any purported defect in the Crown grants.

BC says that while Aboriginal rights are pre-existing rights, their effect depends on whether they have been legally recognized, and that a declaration of an Aboriginal right concerns the “presently exercisable right” and must take into account limitations on that right that have arisen prior to its proof: Haida Nation BCCA at paras. 28-32. A declaration in full form would ignore the fact that for over a century third parties have held the right to exclusive use and occupation of the Claim Area. It would create significant uncertainty to declare two sets of mutually exclusive rights in the same land, and disrupt valid social, political and economic interests.

BC says it is open to the Court to decline to make a declaration of Aboriginal title and instead make a finding of the plaintiffs’ ancestors’ historic use and occupation of the land which could serve as a base for modern negotiations. Or, if the Court considers it appropriate to declare Aboriginal title, any presently exercisable right it declares must be subject to the existing fee simple titles, and any declaration should be limited to land owned by parties to this proceeding.

3. Plaintiffs’s position

The plaintiffs submit that, although Canadian courts have grappled with the complex question of how fee simple and Aboriginal title could coexist, none have decided it. According to the plaintiffs, the jurisprudence Richmond relies on does not support Richmond’s position or is from non-Canadian jurisdictions with fundamentally different legal regimes.

The plaintiffs say that Delgamuukw SCC does not say anything about the incompatibility of Aboriginal title and fee simple, and neither Baker Lake nor Skeetchestn conclude that fee simple and Aboriginal title cannot coexist. Saugeen First Nation ONSC and Saik’uz BCSC speak to co-existence of Aboriginal title and a public right of navigation, not fee simple, and are of no assistance in considering the relationship between fee simple and Aboriginal title.

The plaintiffs say Haida Nation BCCA provides that Aboriginal title cannot be efficiently litigated without a plea of infringement; it does not say that Aboriginal title should be defined by unjustified third party interests.

In sum, the plaintiffs say there is no overwhelming body of jurisprudence supporting the premise that a grant of fee simple in land is fundamentally inconsistent with Aboriginal title such that Aboriginal title is permanently displaced by private ownership.

The plaintiffs submit that, while no court has yet issued a declaration of Aboriginal title over fee simple lands, the SCC has never suggested that the test in Tsilhqot’in SCC would not apply. They say the converse is true, and that Tsilhqot’in SCC says the justification framework applies to third party property rights. The SCC did not define the Tsilhqot’in’s Aboriginal title with reference to existing private interests and licenses on the land; it declared Aboriginal title first and then considered the infringement and justification framework.

In response to Richmond’s position that fee simple interests are fundamentally inconsistent with Aboriginal title and that the Crown has permanently unburdened Aboriginal title from the land, the plaintiffs submit that interests in land — whether Crown, Indigenous, or private — are never absolute. Private fee simple rights can be affected by legislation, even to the extent of expropriation. There are also constraints on Aboriginal title.

The plaintiffs say there is no jurisprudence to support the assertion that Aboriginal title and fee simple interests cannot coexist. Further, academic writers have suggested examples where they could: see for example John Borrows, “Aboriginal Title and Private Property” (2015) 71:5 The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 91 at 130-131.

The plaintiffs submit that, even if the Crown created valid third party interests to the Lands of Tl’uqtinus through the Crown grants of fee simple interest and Crown vesting of soil and freehold interest in Richmond, these historical Crown wrongs must be reconciled with Cowichan Aboriginal title. This work is not done by cancelling or circumscribing the content of a constitutional right. It is done via the SCC’s justification framework; limits on Aboriginal rights are permitted only if justified.

Limiting Aboriginal title based on third party fee simple interests would give non-Aboriginal property rights superiority over Aboriginal title. Recognition of Aboriginal title would depend on what the Crown has done with the land since it dispossessed an Aboriginal people. This negates consideration of the Indigenous perspective.

The plaintiffs submit that the coexistence of Aboriginal title and private ownership should not be understood as a “zero-sum game”, citing Borrows, “Aboriginal Title and Private Property” at 130. Aboriginal title can coexist at law and in fact with an estate in fee simple in the same tract of land. The two interests are reconcilable. This is done through the justification framework or through the Crown and Indigenous people negotiating reconciliation through modern treaties.

Lastly, the plaintiffs say under the Recognition Act, BC recognizes that the Haida Nation has Aboriginal title to land on Haida Gwaii. The Recognition Act confirms and continues fee simple estates, and interests in or rights in relation to land deriving from, burdening, or otherwise relating to such estates. BC has therefore recognized the coexistence of Aboriginal title and Crown granted fee simple estates and related interests. The Recognition Act confirms the Rising Tide Agreement, which includes the Haida Nation’s agreement to honour the fee simple interests in Haida Gwaii, and provides that the Haida Nation may acquire and retire the fee simple interests.

4. Discussion

As I explain below, I do not find that the historical Crown grants of fee simple interest in the Cowichan Title Lands permanently displaced the plaintiffs’ ancestors’ Aboriginal title such that there is nothing left for the Cowichan. Richmond’s displacement theory is without foundation in Canadian law and is, in essence, a form of extinguishment. It departs from the settled test for extinguishment the SCC articulated in Sparrow, Gladstone, and Delgamuukw SCC. Further, it rests on the notion that Aboriginal title and fee simple interests are fundamentally irreconcilable and cannot coexist, a proposition with which I do not agree.

I acknowledge that the Recognition Act and the Rising Tide Agreement illustrate how Aboriginal title and fee simple can coexist as legal interests through a negotiated agreement. I also accept BC’s submission that a bilateral negotiated agreement does not alter the jurisprudence that I must apply in this case. The issue before me is whether and how a court declaration of Aboriginal title may be reconciled with fee simple interests. This question is unsettled in Canada. In considering this issue, I review what courts have said about the relationship between these interests.

The following principles on the relationship between Aboriginal title and fee simple emerge from the authorities and literature, which I discuss in further detail below:

a) The law regarding the effect of fee simple interests on Aboriginal title land is ambiguous and unsettled;

b) Neither Aboriginal title nor fee simple title is absolute;

c) Aboriginal title burdens land upon which fee simple estates have been granted; and

d) The exercise or application of Aboriginal title and fee simple title rights require reconciliation.

a) The law is ambiguous and unsettled

[…]

In summary, no Canadian court has conclusively ruled on the issue of compatibility between Aboriginal title and fee simple title. Some courts have suggested it is impossible or improbable that Aboriginal title and fee simple estates can exist in the same area in their full form without conflicting: see Baker Lake at 565; Skeetchestn at para. 72. This is because on the one hand, the content of Aboriginal title encompasses ownership rights, including the right to exclusive use and occupation of the land to the exclusion of others, and on the other hand, fee simple title permits the owner to exercise every conceivable act of ownership upon it or with respect to it: Delgamuukw SCC at paras. 166, 185; Tsilhqot’in SCC at paras. 73, 88; Kwikwetlem at para. 69; Anne Warner La Forest, Law of Real Property, 3rd ed, vol 1 (Toronto: Thomas Reuters, 2019) at Ch. 4, 4.10.

Other courts have suggested that Aboriginal title and fee simple interests may coexist on the same land, and that the existence of fee simple interests will have consequences for the exercise and application of Aboriginal title: see Tsilhqot’in BCSC at para. 999. On appeal, the SCC suggested that transfers of Aboriginal rights to third parties are infringements that must be justified: at para. 124.

Chippewas of Sarnia is an example of an Aboriginal interest in land yielding to the interests of fee simple owners. Most recently, in Chippewas of Saugeen , the Ontario courts have found that fee simple interests may yield to a treaty-protected reserve interest. The approach of the courts in weighing the equities in the context of competing rights in these cases is instructive.

It is plain from a review of the case authorities that the law in this area is unsettled, but I do not find that the law supports a conclusion that fee simple title and Aboriginal title cannot coexist. Rather, the trend in the jurisprudence suggests that they can coexist, and that where Aboriginal rights and third party rights coexist, the governing approach is reconciliation of those rights through engagement between the Aboriginal rights-holder and the Crown. Further, courts will adopt a case-by-case approach in considering the impact of fee simple interests on constitutionally protected Aboriginal interests in land.

In embarking on that exercise, I consider the words of Justice L’Heureux-Dubé in Gladstone. She said that when defining the nature and extent of constitutionally protected Aboriginal rights, it is important to keep in mind traditional and fundamental interpretive canons related to Aboriginal law and to s. 35. Section 35 must be given a generous, large, and liberal interpretation, and uncertainties, ambiguities, or doubts are to be resolved in favour of Aboriginal peoples. In my view, these general comments about s. 35 are applicable to assessing how Aboriginal title may be impacted by fee simple interests.

b) Neither Aboriginal title nor fee simple title is absolute

Aboriginal title and fee simple interests are not unqualified interests. Aboriginal title comes with restrictions, and rights that are recognized and affirmed are not absolute: Tsilhqot’in SCC at paras. 74, 119. Aboriginal title has inherent constraints: (1) it is inalienable, except to the Crown; (2) it is held communally; and (3) it cannot be encumbered, developed or used in ways that would prevent future generations of the group from using and enjoying it: Delgamuukw SCC at paras.113, 115, 117; Tsilhqot’in SCC at paras. 67, 74, 94. Further, it can be infringed where doing so is justified.

In Tsilhqot’in BCSC, Vickers J. noted that the existence of various private interests in the claim area at issue may have some impact on the application or exercise of the underlying Aboriginal rights, including Aboriginal title: at para. 999.

Of note, historically, Aboriginal interests in land in British Columbia have not been well-protected. John Borrows describes this history in “Aboriginal Title and Private Property” (citations omitted):

In much of British Columbia Aboriginal title was given to third parties without any transfer, sale or surrender. Indigenous land rights were unilaterally pre-empted by settlers throughout most of British Columbia history without any input from Aboriginal peoples. This process continues today. The same statute that granted the right of preemption to settlers denied the same to Aboriginal peoples. Now, with each judicial recognition of Aboriginal title, Aboriginal land-holdings might expand and be more adequately protected. As a result non-Aboriginal property interests may from time-to-time diminish in favour of Aboriginal peoples.

Fee simple title is the largest estate in land and the closest thing to absolute ownership in common law. In Kwikwetlem , the Court of Appeal confirmed that “a grant of fee simple title confers the broadest bundle of private rights to property, on a potentially infinite timescale”: at para. 69 citing Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010) at 168. A grant of fee simple title “amounts to a declaration by the Crown that the owners and their successors in title may do with the property as they wish, within the limits set by the law.”: at para. 69.

Nonetheless, there are limits. Limits to fee simple title include public policy (such as the rule against perpetuities), restrictions (such as the law of nuisance), modern statutory restraints such as family disinheritance and matrimonial property legislation, environmental protection statutes, planning and zoning legislation, expropriation by the state, aeronautics legislation, and the right of the Crown to minerals: La Forest, Law of Real Property, Ch. 4 at 4.10.

Rights exist in relation to and are limited by the rights of others. In Chippewas of Sarnia , the Court noted that the right asserted by the complaining party must be considered in relation to the rights of others: at para. 264. Likewise, private owners cannot automatically be granted entitlements in relation to Aboriginal title land without weighing the consequences of these actions for Aboriginal peoples: Borrows, “Aboriginal Title and Private Property” at 122. A recent example where that principle was applied to protect an Aboriginal interest in land is found in Chippewas of Saugeen ONCA, where the Ontario Court of Appeal held at para. 241: “There is no principled reason that a treaty-protected reserve interest of a First Nation should, in every case, give way to the property interest of a private purchaser, even an innocent, good faith purchaser for valuable consideration. Such an approach is inconsistent with this court’s decision in Chippewas of Sarnia , fails to recognize the sui generis nature of Indigenous land interests, and would not move us closer to reconciliation.”

c) Aboriginal title burdens land upon which fee simple estates have been granted

Aboriginal title is not inferior to other rights and interests in land. Uncertainty should not cause courts to prioritize fee simple interests over Aboriginal title.

Aboriginal title is sui generis — it arises from possession before the assertion of British sovereignty, whereas estates such as fee simple are derived from Crown title and arise afterward. Aboriginal title predates colonization by the British and survives British claims of sovereignty: Tsilhqot’in SCC at para. 14. This suggests a second source for Aboriginal title — the relationship between common law and pre-existing systems of Indigenous laws: Delgamuukw SCC at para. 114. The characteristics of Aboriginal title flow from the special relationship between the Crown and the Aboriginal title-holders, and it is this relationship that makes Aboriginal title sui generis: Tsilhqot’in SCC at para. 72.

Aboriginal title is a unique proprietary interest, and it is wrong to equate it with interests such as fee simple title: Delgamuukw SCC at para. 190. Aboriginal title is sui generis in the sense that its characteristics cannot be completely explained by reference to common law rules of real property or to rules of property found in Indigenous legal systems. It must be understood by reference to both common law and Aboriginal perspectives: Delgamuukw SCC at para. 112.

Analogies to other forms of property ownership, such as fee simple title, may help us understand aspects of Aboriginal title, yet they cannot dictate precisely what Aboriginal title is or is not: Tsilhqot’in SCC at para. 72, referencing Delgamuukw SCC at para. 190.

British Columbia took its underlying title in land in the province subject to Aboriginal title. Under s. 109 of the Constitution Act, 1867, the provinces’ ownership of land is subject to “any Interest other than that of the Province in the same”. Aboriginal title is such an interest. In 1888, the Privy Council stated in St. Catherine’s Milling that lands in the Province are “available to [the Province] as a source of revenue whenever the estate of Crown is disencumbered of the Indian Title”: at 59. Provincial ownership of land is qualified by Aboriginal title and the provinces’ associated duties: Delgamuukw SCC at para. 175; Haida SCC at para. 59.

In Tsilhqot’in SCC, the Court held “[t]he Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown”: at para. 69. The content of the provincial Crown’s underlying title is what is left when Aboriginal title is subtracted from it: at para. 70. What remains of the Crown’s underlying title to lands held under Aboriginal title is a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35: at para. 71.

As above, I reject the submission that the Cowichan’s Aboriginal title was permanently displaced when the provincial Crown grants of fee simple were issued. Rather, I find that the Cowichan’s Aboriginal title burdened and burdens the land over which the Crown grants of fee simple interest were issued. Cowichan Aboriginal title crystallized at sovereignty, although it was not recognized or established for another 179 years. While the fee simple titles in the Cowichan’s land have changed hands many times and continue to overlie Aboriginal title today, that does not mean Aboriginal title is displaced. I further consider BC’s submissions regarding suspension or temporary displacement when I consider what relief the Cowichan are entitled to.

I also find that, as Aboriginal title and Crown title coexist, it follows that Aboriginal title and fee simple can coexist, as the latter is a derivative of Crown title. In Guerin , Justice Dickson explained Crown title was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival: at 377-379. I find that the Cowichan’s Aboriginal title, which is grounded in the prior occupation of the Cowichan’s ancestors, and a constitutionally protected interest in land, is a senior interest in land vis-a-vis the fee simple titles which derive from the Crown grants.

In my view, Aboriginal title does not necessarily defeat fee simple title, just as it does not defeat the underlying title of the Crown. Rather, where Aboriginal title and fee simple interests exist in the same land, the respective interests must be addressed within the broader framework of reconciliation. This is an exercise which engages the Crown, and which must be done with regard to the particular circumstances and interests at play.

Justice Lambert’s dissent in Delgamuukw BCCA included his view that Aboriginal title is a burden on fee simple title, just as it is a burden on the allodial Crown title. Although the resolution of those competing interests presents problems, their existence does not deny Aboriginal title: at para. 945. As the SCC overturned the Court of Appeal’s decision and ordered a new trial, these comments should be treated carefully, but merit consideration.

The academic literature suggests that, as private property law recognizes shared uses of land, Aboriginal title could be considered yet another limit on private ownership, with the additional weight of its constitutional status. This suggestion is rooted in the understanding that Aboriginal title in British Columbia is a prior and senior right to land: Borrows, “Aboriginal Title and Private Property” at 109 (referencing Delgamuukw SCC at para. 114), 130.

I agree that Aboriginal title is a prior and senior right to land. It is not an estate granted by the Crown, but rooted in prior occupation. It is constitutionally protected. The question of what remains of Aboriginal title after the granting of fee simple title to the same lands should be reversed. The proper question is: what remains of fee simple title after Aboriginal title is recognized in the same lands?

I agree with Professor Borrows that this should not be a zero-sum game. Both interests in land may be valid, and the exercise of the rights that come with those interests should be reconciled. The infringement/justification inquiry with regard to any fee simple-related infringements permits a principled reconciliation of Aboriginal rights with the interests of all Canadians. This inquiry speaks to the interests of the broader community. The outcome will affect if and how Crown conduct can limit the exercise of Aboriginal title and will likely impact aspects of other existing interests in land.

d) The exercise and application of Aboriginal title and fee simple title rights require reconciliation

Together, these principles indicate that the exercise of Aboriginal title and fee simple interests can coexist, but may not be exercised in their fullest form — the exercise of either will require modification or limitation. As I have found, the Cowichan’s Aboriginal title is a senior and prior interest and burdens the Cowichan Title Lands upon which fee simple estates have been granted. These principles will inform the reconciliation of the exclusive occupation of the lands at issue in this litigation, and perhaps possible future proceedings or negotiations. The “governing ethos” in the context of resolving land claims should be one of reconciliation, rather than competing interests: Tsilhqot’in SCC at para. 17.

Because reconciliation is the reason s. 35 was included in the Constitution Act, 1982, and because the rights it protects “must be defined in light of this purpose” (Van der Peet at para. 31), it is a central concept to consider when the Court is required to go beyond the guidance of established jurisprudence.

The principle of reconciliation has been the subject of much Canadian case law. An early meaning directs attention towards a ’task’ of reconciliation: the ‘reconciliation’ of the pre-existence of Indigenous societies in Canada with Crown sovereignty and settler interests granted thereunder: see Van der Peet, at para. 31.

Reconciliation is also aimed at establishing and maintaining a mutually respectful relationship between Indigenous and non-Indigenous peoples in this country and a just and lasting settlement of Aboriginal claims. This is traceable to McLachlin J.’s dissent in Van der Peet , before its later adoption by a majority of the SCC in Beckman v. Little Salmon/Carmacks First Nation 2010 SCC 53 [Beckman ], and subsequent adoption by the Truth and Reconciliation Commission of Canada and in other jurisprudence. At para. 230, she wrote:

It may not be wrong to assert, as the Chief Justice does, that the dual purposes of s. 35(1) are first to recognize the fact that the land was occupied prior to European settlement and second, to reconcile the assertion of sovereignty with this prior occupation. But it is, with respect, incomplete. As the foregoing passages from Sparrow attest, s. 35(1) recognizes not only prior aboriginal occupation, but also a prior legal regime giving rise to aboriginal rights which persist, absent extinguishment. And it seeks not only to reconcile these claims with European settlement and sovereignty but also to reconcile them in a way that provides the basis for a just and lasting settlement of aboriginal claims consistent with the high standard which the law imposes on the Crown in its dealings with aboriginal peoples.

In C-92 Reference, the SCC unanimously emphasized the goal of “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country”: at para. 89, citing the Truth and Reconciliation Commission of Canada.

In my view, where possible, a court should favour outcomes that promote this type of relationship into the future.

Additionally, as a means of achieving reconciliation, priority is placed upon negotiation over litigation: see Haida SCC at para. 14; Shot Both Sides v. Canada 2024 SCC 12 [Shot Both Sides ] at paras. 61, 71; C-92 Reference at paras. 77, 90; Desautel SCC at para. 87; Delgamuukw SCC at para. 187; Ontario (Attorney General) v. Restoule, 2024 SCC 27 at para. 297.

In my view, reconciliation of the Cowichan’s Aboriginal title with the Crown grants of fee simple interest is appropriately considered through the established Sparrow framework. As set out in Part 7 of my reasons, I do not accept BC’s position that the Cowichan’s Aboriginal title should be defined with reference to third party interests in land, such that Aboriginal title is displaced by those interests. This would lead to an absurd result where Aboriginal rights would be defined by limitations arising from the Crown’s improper conduct prior to a declaration, undermining the purpose of s. 35 which protects Aboriginal title and constrains the Crown’s conduct with respect to same. I agree with the plaintiffs that the infringement/justification analysis is the appropriate framework through which to reconcile the third party interests in Aboriginal title land that are derived from Crown grants or other vesting of interests in land, where these interests persist at the time Aboriginal title is recognized.

In Tsilhqot’in SCC, McLachlin C.J.C. provided clear direction on the analytical framework for considering infringements of Aboriginal title and whether infringements are justified. The Court did not limit the Tsilhqot’in’s Aboriginal title or define it based on existing forestry interests. The Court held that directly transferring Aboriginal property rights to third parties will plainly be a meaningful diminution of Aboriginal groups’ ownership rights, and amount to an infringement that must be justified in cases where it is done without Aboriginal consent: at para. 124. On BC’s displacement theory, the Tsilhqot’in’s Aboriginal title would have been what was left over once third party rights to cut timber was subtracted from it. The Court also recognized that a declaration of Aboriginal title may require the Crown to re-evaluate historical conduct: at para. 92.

In Parts 7 and 8 of my reasons, I apply the Sparrow framework to the Crown grants of fee simple interest and find that they unjustifiably infringe Cowichan Aboriginal title.

e) Summary

In summary, I find that Aboriginal title and fee simple titles can coexist, and where they do, the exercise of one form of title must yield to the other so long as they are both present on the same parcel of land.

Once Aboriginal title is established by court declaration, the usual remedies that lie for breach of interests in land are available, adapted as may be necessary to reflect the special nature of Aboriginal title and the fiduciary obligation owed by the Crown to the holders of Aboriginal title: at para. 90. As an Aboriginal title holding group, the Cowichan may now seek these adapted remedies.

For Aboriginal title to be exercisable in fact, in the face of private third party interests, the title holding group must seek remedies to enforce that title. Otherwise, title simply exists as recognized title in law. This follows from the discussion in Chippewas of Sarnia , where the Court considered a patent that suffered from a defect that rendered it subject to attack. For practical purposes, a patent suffering from a defect that renders it subject to attack will continue to exist and to have legal effect, unless and until a court decides to set it aside: at para. 261.

In the same vein, fee simple interests and the exercise of associated rights will go unaffected in practice when Aboriginal title is recognized over that land, unless or until the Aboriginal title holder successfully takes remedial action in respect of the fee simple interests. Or, preferably, until the matter is resolved through negotiation between the Aboriginal title-holding group and the Crown. In this case, the Cowichan do not challenge the validity of the private landowners’ fee simple interests. In my view, the Cowichan’s Aboriginal title and the private fee simple titles will exist in the same land at the same time until future litigation or negotiation further modifies them and/or clarifies the practical aspect of the relationship. This goes beyond what I am asked to do in this case. With the findings that I make, and the relief that I grant, the parties will be equipped to return to the bargaining table to work out a resolution. As Gregory J. set out in Wolastoqey , reconciliation of Aboriginal title with the private interests will initially fall to the Crown (together, with the Cowichan), to negotiate and reconcile: at para. 171. I return to this point in Part 11.

[…]

Action allowed in part.