A recent British Columbia Supreme Court decision has established that Aboriginal title takes precedence over private property rights, creating uncertainty for homeowners in affected areas.
The Cowichan Tribes Decision
In August, several hundred residents of Richmond, B.C., received surprising news when the court declared their homes and farms to be on Indigenous land. The ruling, now known as the "Cowichan Tribes" decision, represents one of the first cases establishing that Aboriginal title claims supersede private property rights.
The case centered on an area of Richmond that includes more than one hundred private lots, all falling within the boundaries of a Cowichan Nation Aboriginal title claim. While the specifics of how this ownership will be implemented remain undetermined, homeowners in the affected area have already reported difficulties in obtaining financing for their properties.
Historical Context and Legal Basis
The Cowichan case wasn't based solely on traditional territory claims. Lawyers successfully argued that Crown authorities violated promises to maintain the territory in Cowichan hands, specifically referencing statements from B.C.'s first governor, Sir James Douglas.
The decision quotes Douglas telling Cowichan representatives that "Her Majesty the Queen had given me a special charge, to treat them with justice and humanity and to protect them against the violence of all foreign nations which might attempt to molest them, so long as they remained at peace with the settlements."
Implications for Property Law
The ruling represents a significant shift in provincial property law, explicitly stating that "provincial Crown grants of fee simple interest do not extinguish nor permanently displace Aboriginal title."
Critical sections of the B.C. Land Title Act that establish private land titles as "indefeasible" no longer apply on lands where Aboriginal title has been established. The decision clarifies that "Aboriginal title is a prior and senior right to land" compared to deed ownership.
This precedent has naturally led homeowners throughout British Columbia to question whether their property titles could face similar uncertainty from future Aboriginal title decisions.
