Released August 7, 2025, the extensive decision of Madam Justice Young in Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490 (CanLII) has potentially far-reaching implications for local governments in British Columbia relating to the relative strength of fee simple interests in land vis-à-vis the claims of Aboriginal title holders.

The headline for local governments is that the Court found the City of Richmond’s fee simple titles and interests in the Cowichan Title Lands to be defective and invalid. Accordingly, the Court found that the Province of BC owes a duty to the Cowichan to negotiate, in good faith, reconciliation of the Crown granted fee simple interests held by third parties and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title, all in a manner consistent with the honour of the Crown.

We will soon publish in-depth analysis of this decision, but, at present, the following are the highlights that concern local governments:    

• The First Nations plaintiffs, on their own behalf and on behalf of the descendants of the historic Cowichan Nation, brought this action seeking a declaration of Aboriginal title to their traditional village of Tl’uqtinus on the south arm of the Fraser River, and to its surrounding lands and submerged lands. They also sought a declaration of an Aboriginal right to fish the south arm of the Fraser River for food.

• The land claim area is located on what is now the south shore of Lulu Island, across from Tilbury Island, in Richmond, British Columbia. Today, land in the claim area is owned by the federal Crown, the Vancouver Fraser Port Authority (“VFPA”), the City of Richmond (“Richmond”), and private third parties. It covers approximately 1,846 acres of land, as well as certain surrounding lands held by Canada or Richmond.

• The Court made numerous important findings, but, respecting Richmond, the following are the most relevant:
  
  » Crown grants of fee simple interest deprived the Cowichan of their village lands, severely impeded their ability to fish the south arm of the Fraser River, and are an unjustified infringement of their Aboriginal title. Subsequent dispositions of the Cowichan’s land, including BC’s vesting of Richmond with fee simple interests and the soil and freehold of highways, are also unjustified infringements. Additionally, some of Canada and the VFPA’s activities on the Cowichan Title Lands unjustifiably infringe the Cowichan’s Aboriginal title (at paras. 2670, 2852).
  
  » The Province has no jurisdiction to extinguish Aboriginal title. The Crown grants of fee simple interest did not displace or extinguish the Cowichan’s Aboriginal title (at paras. 2188–2190).
  
  » Aboriginal title lies beyond the land title system in British Columbia. Sections 23 and 25 of the Land Title Act, R.S.B.C. 1996, c. 250 do not apply to Aboriginal title. Accordingly, Richmond’s reliance on ss. 23 and 25 as a statutory defence is not made out. Richmond’s fee simple interests in the Cowichan Title Lands are not conclusive evidence that Richmond is indefeasibly entitled to that land as against the Cowichan as Aboriginal title holders (at paras. 2258–2262).
  
  » BC and Richmond advanced limitations defences, as well as equitable defences of bona fide purchaser for value without notice and laches. The plaintiffs’ invocation of estoppel to the defences is not made out (at paras. 2881, 2890). Nevertheless, the plaintiffs’ claims are not time‑barred by limitations statutes (at paras. 2902–2905), and the equitable defences are not made out (at paras. 3150–3151).

Josh Krusell

Josh Krusell is the Managing Partner of Litigation with SMS. He regularly acts on behalf of local governments in complex liability actions, construction and insurance claims, contractual and regulatory disputes, administrative proceedings, and land use and injunction-related matters.