Neil Malik
Canada’s courts are split on Aboriginal title and private property
Canada’s courts are split on Aboriginal title and private property
Photo via Wolastoqey Nation in New Brunswick
The Topline
- Last week, the Supreme Court of Canada declined to hear an appeal from New Brunswick’s Wolastoqey Nation, effectively giving the New Brunswick Court of Appeal (NBCA) the final word — at least in that province.
- The NBCA’s ruling concluded that courts cannot issue declarations of Aboriginal title over land already granted to private landowners in New Brunswick.
- On the other hand, in August 2025 a B.C. Supreme Court judge reached the opposite conclusion by ruling that Aboriginal title and private property could coexist, effectively giving the Cowichan Tribes some rights to land already owned by private citizens.
- The Cowichan decision will be appealed and still could be heard by the Supreme Court of Canada in the future.
- Aboriginal title is a legal recognition of an Indigenous group’s collective right to land because they occupied and used that land before the Crown asserted sovereignty.
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It's one step closer to reconciliation
Can Aboriginal title and private property, otherwise known as fee simple title, coexist on the same piece of land?
If you ask the B.C. Supreme Court, yes it can.
The Cowichan Tribes claimed Aboriginal title to just over 1,800 acres of land — including portions submerged under water — on the north bank of the Fraser River in Richmond, B.C. They said this area was the site of a traditional village known as Tl'uqtinus.
Today, it’s a mix of land owned by the federal government, Vancouver Fraser Port Authority, the City of Richmond and private citizens.
This was a marathon of a trial, lasting 513 days from September 2019 to November 2023.
In reaching her decision, the judge evaluated a massive amount of evidence, including oral histories from Indigenous knowledge keepers, reports from eight different experts, and a large volume of historical documents.
Significantly, the court ruled that uncontradicted oral history should carry as much weight as written documents, and where stories conflicted, the judge looked for written records to confirm the details.
In August 2025, the judge dropped a bombshell ruling.
She declared Aboriginal title on portions of the claimed land, finding that the Cowichan people had occupied this village site exclusively and sufficiently at the time the Crown asserted sovereignty.
For the fee simple land owned by the federal government and City of Richmond, the judge declared some of those land titles invalid and gave both parties 18 months to hammer something out.
But for the privately owned land being claimed by the Cowichan Tribes, the judge didn’t completely erase the rights of the existing landowners who legally purchased that property, fair and square.
Instead, she ruled that Aboriginal title and fee simple title on privately owned land could coexist at the same time, and that it was up to the government to negotiate a reconciliation with the Cowichan Tribes accordingly.
According to some, the ruling doesn’t undermine or invalidate the rights of any landowners who weren’t part of the case.
Victoria Wicks and Jaclyn McNamara, lawyers with Olthuis Kleer Townshend LLP, wrote in Policy Options that negotiations between the government and Cowichan Tribes “must balance the rights of both the Aboriginal title holder and these landowners.”
“The parties can choose solutions — such as compensation, voluntary land purchases or shared jurisdiction — that do not disturb private property rights.”
Chief Sulsulxumaat Cindy Daniels of Cowichan Tribes said the ruling is a vital step toward acknowledging their history and rights, calling it a “powerful reminder” to Canada and B.C. that historical injustices must be addressed.
B.C. Premier David Eby explained his government’s reasons for appealing the ruling in a speech to business leaders.
“Whether it’s a family home or an industrial park owned by a business, we have to go to the wall to defend those private properties, and that is the end of the story.”
Editor’s note — To help write this, I referred to this summary of the case: https://www.mandellpinder.com/cowichan-tribes-v-canada-attorney-general-2025-bcsc-1490-case-summary/
It's the death knell of reconciliation
Can Aboriginal title and private property, otherwise known as fee simple title, coexist on the same piece of land?
If you ask the NBCA, no it can’t.
The Wolastoqey Nation filed a lawsuit seeking a declaration of Aboriginal title over the western half of New Brunswick. Like the Cowichan Tribes case, the claim included a mix of government and privately owned land.
As part of its claim, the Wolastoqey Nation asked the court to declare Aboriginal title on land already owned by a private company — in this case, J.D. Irving.
It’s worth mentioning here that J.D. Irving was named as a defendant in the lawsuit, but in B.C. none of the private landowners were included.
A New Brunswick lower court judge first ruled that J.D. Irving couldn’t be sued for Aboriginal title, but instead the Wolastoqey Nation could sue the government for a declaration of Aboriginal title on J.D. Irving’s land.
J.D. Irving appealed and the NBCA agreed, ruling that a declaration of Aboriginal title on privately owned land simply wasn’t an option.
The NBCA went on to say allowing Aboriginal title and private property to coexist would “sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”
Mic drop.
The Wolastoqey Nation applied to the Supreme Court of Canada for one last appeal but it declined to hear the case, effectively solidifying the NBCA’s decision on Aboriginal title and private property — at least in New Brunswick.
The NBCA gave three big reasons for its decision.
First, the court said Aboriginal title and private ownership simply can’t exist on the same piece of land, especially if Aboriginal title gives any right to exclusive occupation and possession.
Next, if J.D. Irving wasn’t named as a defendant to begin with, it would be unfair to declare Aboriginal title on its land if it wasn’t there to speak for itself.
Lastly, land claims are entirely between the Wolastoqey Nation and the government. Private landowners are innocent bystanders in this whole thing.
That being said, the Wolastoqey Nation’s case wasn’t completely out of gas. The NBCA left the door open for them to seek a finding of Aboriginal title on privately owned lands, rather than a declaration.
A finding (instead of a declaration) of Aboriginal title would still allow them to claim damages against the government over privately owned land without any impact to the fee simple title held by existing landowners.
After the Supreme Court declined to hear the case, the Wolastoqey Nation said , “We will continue to advance our claim, assert our rights and title, and pursue all available paths open to us. We will announce our plans for the next steps of our claim when information is ready to share.”
Editor’s note — To help write this, I referred to this summary of the case: https://www.mandellpinder.com/j-d-irving-limited-et-al-v-wolastoqey-nation-2025-nbca-129-case-summary/
