Until recently, claims for Aboriginal title have focused on Crown (government-owned) land. Two 2025 court decisions, Cowichan Tribes v Canada (Attorney General) (Cowichan Tribes) and J.D. Irving, Limited et al. v. Wolastoqey Nation (Wolastoqey Nation), considered whether and how Aboriginal title applies to privately held lands, prompting broader discussions about the origins and implications of these claims.
In a recent seminar, partners in our Commercial Real Estate and Indigenous law groups discussed these developments and highlighted several key takeaways.
Enshrined, but Undefined
Aboriginal rights and title were enshrined in section 35 of the Constitution Act, 1982, with the intention of reconciling the pre-existence of Indigenous societies with the assertion of Crown sovereignty. However, the scope of Aboriginal rights and title was not defined. If Aboriginal rights and title remain undefined by legislation or agreements with Indigenous peoples, the courts will continue to be required to define their scope through resolution of disputes.
Cross Canada Concern
Aboriginal title claims have been making their way through Canadian courts for several decades and are being pursued across the country, including in areas often thought to be “resolved” by treaty. This issue is not limited to British Columbia or New Brunswick.
However, litigation is not the only path forward. In addition to potential legislative solutions, there are various other legal mechanisms available to resolve and reconcile Aboriginal rights and title claims, outside of the litigation process. Modern treaties have defined Aboriginal rights and title, with well known examples including the Nisga’a Final Agreement (2000) and the Nunavut Agreement (1993). These processes provide alternative pathways to litigation with more certain outcomes for both Indigenous and non-Indigenous parties.
Overlapping Rights Unresolved
The central and unresolved question is whether and how Aboriginal title and fee simple title (privately owned property) can coexist over the same lands.
In Cowichan Tribes, the Supreme Court of British Columbia determined that Aboriginal title and fee simple title can coexist, issuing for the first time a declaration of Aboriginal title over an area that included privately owned property. In doing so, the Court declared the fee simple titles held by Canada, the municipality of Richmond and the Vancouver Fraser Port Authority to be invalid. While the Cowichan Nation did not seek, and as a result the Court did not order, the invalidation of fee simple titles held by private landowners who did not participate in the litigation, the Court also did not say that this could not happen in the future. Rather, the Court directed the Province of B.C. to negotiate with the Cowichan Nation to reconcile their Aboriginal title with the existing fee simple interests.
The New Brunswick Court of Appeal in Wolastoqey Nation came to the opposite conclusion. The Court concluded that only a finding, not a declaration, of Aboriginal title over privately owned property is available. That finding may ground future claims for damages against the Crown (only), but the return of those lands is not an available remedy. In the Court’s view, a declaration of Aboriginal title would confer rights that cannot coexist with private land ownership.
Potentially invalidating the fee simple rights of property owners would raise difficult questions for all Canadians. We expect these concerns to be an important animating factor in future court decisions.
Further direction will be needed, likely from the Supreme Court of Canada, to resolve the issue. Cowichan Tribes is currently under appeal to the British Columbia Court of Appeal, however the appeal decision is likely several years away. Wolastoqey Nation has sought leave to appeal to the Supreme Court of Canada.
Unique Facts, Unique Outcomes
The legal test for Aboriginal title was not changed by these decisions. Indigenous nations must demonstrate that they exclusively occupied lands 150 years ago (or more) using contemporary evidence. Findings of Aboriginal title remain highly fact specific.
Notably, Cowichan Tribes involved unique facts relative to past Aboriginal title claims. Cowichan Nation claimed a small, urban area including privately owned lands that had been designated as a Cowichan settlement by colonial governments after British sovereignty, but misappropriated by colonial officials. The Court accepted that, despite overlapping with the traditional territories of other Indigenous nations, this small area was exclusively occupied by the Cowichan Nation. The declaration of Aboriginal title in Cowichan Tribes does not suggest that Aboriginal title can be more readily established in other cases.
Implications for Transactions
Approaches to transactions and associated due diligence will depend on the scope, nature and location of the transaction. Following the Cowichan Tribes decision, many land transactions in B.C. remain largely unaffected and the level of due diligence required remains unchanged. However, for properties located within the core area of an Aboriginal title claim, and/or transactions involving activities that will impact Aboriginal rights, the scope of due diligence and associated representations and warranties is being enhanced.
For more information, please watch our recent seminar or contact the authors or any other member of our Indigenous law group.
