In August 2025, a British Columbia trial court in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, declared Aboriginal title over land that includes privately owned parcels in Richmond, B.C. The court did not cancel the private owners’ titles. It held that Aboriginal title and private ownership can exist in the same land until negotiation or further litigation sorts out their relationship. The decision is under appeal, it is not binding in Ontario, and a New Brunswick appeal court has taken a materially different approach to privately owned land. This article describes the state of the law as of October 2026. It does not predict how the appeals will end.
Key Takeaways
- Cowichan is a B.C. trial decision. All parties have appealed, and as of the conference paper discussed below, there was no reported appellate decision.
- The court declared certain titles held by Canada and the City of Richmond “defective and invalid,” but made no comparable declaration against private owners, who were not parties.
- For private parcels, the remedy was directed at the Crown: British Columbia must negotiate in good faith to reconcile them with Cowichan Aboriginal title.
- The New Brunswick Court of Appeal in Wolastoqey held that a declaration of Aboriginal title over privately owned properties could not be pursued. The Supreme Court of Canada refused leave to appeal on May 28, 2026.
- Much of Ontario is covered by historic treaties, which is one reason not to read Cowichan as a statement about Ontario titles.
Where this summary comes from
At the Ontario Bar Association’s Ontario Legal Conference in October 2026, real estate lawyer Bob Aaron, C.S., of Aaron & Aaron, presented a paper titled Indigenous Land Claims over Private Property. This article draws on that paper. Views described are the author’s or the court’s, not predictions by BridgePoint Law.
What is Aboriginal title?
Aboriginal title is a constitutional right, recognized and affirmed by section 35 of the Constitution Act, 1982. It is not the same thing as ownership under a land registry system.
The Supreme Court of Canada has described it as a unique (sui generis) communal interest in land that comes from Indigenous occupation before the Crown asserted sovereignty. In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, the Court held that Aboriginal title is a right to the land itself. In Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, the Court set out the test (sufficient, continuous and exclusive occupation before sovereignty) and the case ended in an actual judicial declaration of Aboriginal title over a substantial area.
“Land claims” can mean three different things
The paper notes that a “land claim” may be an Aboriginal title claim, a comprehensive claim or modern treaty, or a specific claim alleging that the Crown failed to meet an existing obligation, such as a treaty promise. Only the first involves proving Aboriginal title in court. A specific claim may end in compensation or a negotiated settlement with no declaration of title. When you see a headline about a “land claim” near your property, the first question is which kind it is.
What did the Cowichan decision actually decide?
The trial ran for 513 days. The Cowichan plaintiffs sought Aboriginal title to their historic village of Tl’uqtinus, on the south arm of the Fraser River, and surrounding lands. Justice Barbara Young found Aboriginal title over a portion of the claim area of roughly 1,846 acres, and an Aboriginal right to fish for food. The title lands include property held by Canada, the Vancouver Fraser Port Authority, the City of Richmond and private owners.
Crown grants did not extinguish Aboriginal title
Crown grants of fee simple (ordinary freehold ownership) were issued in the area between 1871 and 1914. The court found that the Province had no constitutional power to extinguish Aboriginal title, and that the grants did not do so. Fee simple comes from the Crown; Aboriginal title does not. The court described Aboriginal title as a prior and senior interest.
Private titles were not cancelled
The paper stresses this point because public discussion has often obscured it. The private owners were not parties, and the Cowichan did not ask the court to declare their titles invalid. The court declared specified Canada and Richmond titles defective and invalid, and suspended that declaration for 18 months. It made no comparable declaration against private owners.
At paragraph 2208, the court said that fee simple interests “will go unaffected in practice” unless or until the Aboriginal title holder successfully takes remedial action, or, preferably, the matter is resolved by negotiation with the Crown. Until then, the two forms of title exist in the same land at the same time.
The registry did not defeat Aboriginal title
Richmond relied on the indefeasibility provisions of B.C.’s Land Title Act. The court held that Aboriginal title exists outside the provincial land title system and that the statute could not defeat a constitutional right. As the paper notes, an unproven Aboriginal title interest therefore cannot be found by searching the parcel register, but this does not mean every registered title in B.C., let alone Canada, is now uncertain.
What is still undecided
The court declined to decide whether private owners, who were not before it, could rely on defences such as bona fide purchaser for value without notice. What reconciliation will require, whether compensation, land exchanges or continued coexistence, was not determined.
How Wolastoqey differs
In J.D. Irving, Limited v. Wolastoqey Nation, 2025 NBCA 129, the New Brunswick Court of Appeal held that the Wolastoqey could not pursue a declaration of Aboriginal title over privately owned properties. They could still seek findings about historical title as part of a claim for damages or compensation against the Crown.
The Supreme Court of Canada dismissed the application for leave to appeal on May 28, 2026. As the paper explains, a refusal of leave is not an endorsement and creates no new Supreme Court precedent. Wolastoqey is binding in New Brunswick and persuasive elsewhere, while Cowichan remains under appeal.
A private owner tried to reopen the trial
Montrose, a large industrial owner within the title lands, applied after judgment to be added as a party and reopen the trial. It filed evidence that a lender had declined to finance a proposed development, which the court assumed without deciding. In Cowichan Tribes v. Canada (Attorney General), 2026 BCSC 1213, Justice Young dismissed the application as an abuse of process: the correct route was the pending appeals. Montrose has appealed.
What does this mean for Ontario property owners and buyers?
Section 35 applies across Canada, but the paper identifies real differences:
- History. Large parts of B.C. were never covered by historic treaties, and Cowichan turned on B.C.-specific facts such as colonial land policy and the Terms of Union. Much of Ontario is covered by historic treaties, although disputes over treaty boundaries, reserve lands and unsurrendered interests can still arise.
- Statutes. Provincial land title statutes differ. Ontario’s registration system is governed by its own statute, the Land Titles Act, R.S.O. 1990, c. L.5. Cowichan interpreted B.C.’s legislation, not Ontario’s.
On Toronto, the paper notes that the Toronto Purchase of 1787, confirmed in 1805 as Treaty 13, was disputed for over 200 years until the federal government paid $145 million to the Mississaugas of the Credit in 2010. That was a compensation settlement of a historical claim against the Crown.
In the paper’s view, Cowichan does not show that every fee simple title has become defeasible. It raises a question Canadian appeal courts have not finally answered: when Aboriginal title is proved over land the Crown already granted to others, how are the two interests reconciled?
Practical steps if you own or are buying in Ontario
For most buyers, including newcomers buying a first Ontario home, the sensible response is ordinary diligence:
- Do not rely on headlines. Ask what kind of claim is involved and whether any court has made a declaration affecting the specific land.
- Ask your lawyer whether anything known about the area calls for further inquiry, since an unproven Aboriginal title claim does not appear on the parcel register.
- Read your title insurance policy. Title insurance generally covers the title risks listed in the policy, subject to its exclusions and exceptions, and policies differ. Whether a particular claim would be covered depends on your policy wording, so check it with your lawyer or insurer. Our guide to title insurance in Ontario real estate transactions explains the basics.
- Talk to your lender early if you are financing a commercial or development property in an area subject to a known claim.
- Watch the appeals in Cowichan and Montrose at the B.C. Court of Appeal.
If you are new to buying in Ontario, our step-by-step guide to buying property in Ontario and our article on buying property as a non-resident cover the rest of the process.
Frequently Asked Questions
Did the Cowichan decision cancel anyone’s home ownership?
No private owner’s title was declared invalid. The court declared specified titles held by Canada and the City of Richmond defective and invalid, suspended for 18 months, and held that Aboriginal title and private fee simple can coexist until negotiation or further litigation.
Does Cowichan apply to land in Ontario?
It is a B.C. trial decision under appeal and is not binding in Ontario. The constitutional principles in section 35 apply across Canada, but the history and statutes differ, and much of Ontario is covered by historic treaties.
Does title insurance protect me against Indigenous land claims?
It depends on the policy. Title insurance covers listed risks subject to exclusions and exceptions, and policies differ. Read your policy and ask your lawyer or insurer how it applies.
If you have questions about a specific property, contact us.
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Disclaimer: This article is for general information only and is not legal advice. Ontario real estate, tax and estates law change frequently, and every matter turns on its own facts. Reading this article does not create a lawyer–client relationship. Obtain advice tailored to your situation before you act.
Talk to an Ontario lawyer. BridgePoint Law advises individuals and businesses across Canada — and on Canada–US–China cross-border matters — on Ontario real estate purchases, title questions and closings. Book a consultation with our team in Toronto and Kingston. We work in English, Mandarin, and Cantonese.
