How Canada's courts came to recognize Aboriginal title as a legal reality

The B.C. Supreme Court's decision affirming the Cowichan Nation's Aboriginal title to their ancestral fishing village—now buried beneath Richmond's homes and highways—stands as the first declaration of Aboriginal title over modern urban land in Canada. But it did not arrive in a vacuum. The ruling, which Justice Barbara Young confirmed Monday by rejecting a reopening request from the area's largest landowner, rests on 50 years of landmark court decisions that fundamentally reshaped how Canadian law understands Indigenous land rights.

The case itself dates to August 2024, when the B.C. Supreme Court concluded the province's sale of the Cowichan's ancient village lands to white settlers without settling Indigenous claims was illegitimate. The largest current landowner, Montrose Property Holdings Ltd., argued it was never warned its property rights might be in question and should have been given a chance to represent itself. Young rejected the bid, saying the issues Montrose wanted to raise were already addressed during the five-year trial and could be pursued through appeal.

The uncertainty the province created in 1878—when commissioner Gilbert Sproat warned his superiors against rushing land grants while Indigenous claims remained unsettled—persists today. Landowners both public and private are still waiting for clarity on how Aboriginal title will coexist with fee simple ownership, traditionally considered the highest form of private land possession in Canadian law.

The legal architecture supporting this decision traces to the Supreme Court of Canada's 1973 Calder ruling, which established that Aboriginal title was a legal question courts could adjudicate. For the first time, what was called "Indian title" became subject to judicial determination rather than political whim. "Calder recognized the long-standing, common-law right" of Aboriginal claims, said Robert Hamilton, a law professor at the University of Calgary specializing in Aboriginal title law.

For Shana Thomas, a Cowichan hereditary chief, the legal battle was inevitable. "This is the unfinished business of Confederation," she said. "The need to negotiate with First Nations prior to settlement was a requirement, and folks just continue to ignore it and pass it from one generation to the next."

Young's ruling is widely expected to reach the Supreme Court of Canada, where the clash between Aboriginal title and fee simple will likely reshape property law across the nation.