‘Full ownership of the land’: Five takeaways on the historic B.C. court ruling on Indigenous land ownership

A B.C. Supreme Court ruling granting Aboriginal title to the Cowichan tribes over Crown lands in Richmond has raised questions about the future of private property rights in Canada, especially in B.C., where there are fewer historic treaties. On Monday, the B.C. government announced that it was appealing the decision. If the ruling stands, it would be precedent-setting for similar land-claim cases. The Hub spoke with Dwight Newman, a law professor at the University of Saskatchewan and an expert in Canadian constitutional law, to better understand the implications of this landmark case. Here are five key takeaways from the conversation: 1. The ruling grants “full ownership” to Indigenous claimants over land that includes both city property and potentially private holdings: The court declared that the Cowichan tribes hold Aboriginal title to specific areas in Richmond, though the exact implications for private property owners remain unclear in the ruling. 2. This case represents the first direct judicial engagement with how Aboriginal title affects private property rights: Previous cases have not addressed this intersection so explicitly, making this a potentially significant legal precedent. 3. Private property owners affected by the ruling were not formally notified of the proceedings: The court wrestled with notification requirements but ultimately decided against formal notifications to private landowners who could be impacted. 4. The case is appealed to the appellate court, and could potentially reach the Supreme Court of Canada: Given the consequential nature of the ruling, multiple parties are seeking appellate review. 5. The implications could extend beyond British Columbia to other regions without comprehensive treaty coverage: Areas like New Brunswick, where treaty coverage is disputed, could see similar challenges to existing property arrangements. Full ownership with unclear consequences The court’s declaration that Aboriginal title constitutes “full ownership” creates a complex legal situation where two forms of ownership—Indigenous title and fee simple—could coexist over the same land. “Aboriginal title is, according to the case law, full ownership of land,” Newman explained. “Now, how that’s understood, that there’s full ownership under Aboriginal title at the same time that there’s ownership under fee simple, which is the way that most people own private property, is a really tricky thing to sort through.” The practical implications remain uncertain. Newman noted that the Cowichan tribes might “exercise jurisdiction and charge rental fees or taxes or something. We just don’t know, honestly.” The judge explicitly acknowledged that questions affecting private property owners would need to be “sorted out still in future proceedings.” Unprecedented judicial territory This ruling breaks new ground in Canadian Indigenous law by directly confronting the intersection of Aboriginal title and private property rights. “It’s really the first case where a judge has said something this directly in terms of the implications of Aboriginal title for private property or for fee simple lands,” Newman observed. While the case—the longest trial in Canadian history at 523 days—applied existing legal tests for Aboriginal title rather than creating new ones, its unique focus on consequences for private property owners sets it apart from previous decisions. How precedent-setting the ruling is will ultimately depend on how higher courts address and interpret these novel questions. Notification concerns raise procedural questions A significant aspect of the case involves the court’s decision not to formally notify private property owners who could be affected by the Aboriginal title declaration. Newman highlighted this as a contentious issue: “There were wrestlings around whether they should receive any formal notification and ultimately decisions that there were no formal notifications [sent] out to them.” This procedural decision could become a key point in any appeal, particularly given that some private landowners “may have become aware of it” through other means but were not formally included in the proceedings that could affect their property rights. Besides an industrial zone, the ownership of multimillion-dollar mansions, an 18-hole golf course, and blueberry farms are all in question due to the ruling finding them to be on Cowichan-owned land. Appeals likely to reach Supreme Court Given the case’s far-reaching implications, Newman expects it will proceed through the appellate system. “I’d be surprised if the British Columbia Court of Appeal didn’t agree to hear the case. It is so consequential,” Newman said. The appeal process could involve multiple parties, including the B.C. and federal governments, the City of Richmond, and other Indigenous groups, including the Musqueam. Newman anticipates that intervenors may also seek to participate, particularly as courts wrestle with “legal issues around how we see the interaction between Aboriginal title and private property.” Broader national implications While the immediate effects are localized to Richmond, the legal principles established could have wider application across Canada. Newman noted that similar issues could arise where there’s Aboriginal title lands but emphasized that “there aren’t Aboriginal title claims in areas where there have been treaties reached.” However, regions with disputed treaty coverage could face similar challenges. Newman pointed to New Brunswick, where “there are arguments that the treaties there didn’t cover land surrender,” as an example of where comparable cases might emerge. The ultimate resolution of this case will likely take several more years in the B.C. court of appeal, and potentially the Supreme Court of Canada after the appellate court’s decision, before it sets precedent for other Indigenous title claims across Canada. This commentary draws on a Hub podcast. It was edited using AI. Full program here.