Aboriginal Title Over Private Lands: Legal Uncertainty After Recent Court Decisions

Two recent court decisions have brought renewed attention to the question of whether Aboriginal title can apply to privately owned (or “fee simple”) land. These cases provide different answers to this consequential question and will have implications for the ongoing resolution of Aboriginal title claims across Canada.

In J.D. Irving, Limited et al. v. Wolastoqey Nation (Wolastoqey Nation), the New Brunswick Court of Appeal refused to declare Aboriginal title over land held by private landowners, finding that a declaration of Aboriginal title would confer rights that cannot coexist with private land ownership. In the Court’s view, recognizing Aboriginal title over privately owned lands would “sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”

In contrast, in Cowichan Tribes v. Canada (Attorney General) (Cowichan Tribes), the Supreme Court of British Columbia considered the same question but came to the opposite conclusion. The Court declared Aboriginal title over an area that included privately owned land, holding that Aboriginal title and fee simple ownership can legally coexist. The Court did not, however, address the implications of its declaration of Aboriginal title on the fee simple rights of private third-party landowners, including how competing exclusive interests in land may co-exist in practical terms.

These divergent paths raise implications for private landholders, Indigenous nations, lenders and infrastructure owners across Canada. The guidance of the Supreme Court of Canada will ultimately be required to resolve these important questions.

Previous Court Decisions on Aboriginal Title 

Aboriginal title has existed in Canadian law for many years. Aboriginal title is a collective, constitutionally protected interest in land, which is recognized and affirmed in section 35 of the Constitution Act, 1982. Aboriginal title arises from the regular and exclusive occupation of land by an Indigenous group prior to the Crown’s assertion of sovereignty over the lands that now comprise Canada.

Two previous court decisions and one court order have declared Aboriginal title over Crown (public) lands.

In the Supreme Court of Canada’s leading decision on Aboriginal title in 2014, Tsilhqot’in Nation v. British Columbia (Tsilhqot’in), the Court upheld a declaration of Aboriginal title over Crown land located in a large remote area of central British Columbia. The Court also confirmed that Aboriginal title provides significant rights over land, including the right to control, possess, use, economically benefit from and proactively manage the land.

In the British Columbia Supreme Court’s 2024 decision in The Nuchatlaht v. British Columbia (Nuchatlaht), the Court declared Aboriginal title over a group of specific sites located on Nootka Island, off the west coast of Vancouver Island in British Columbia. This decision was made after the Court had previously dismissed the Nuchatlaht’s prior claim to a much larger area of 201-square kilometers on Nootka Island.

In both the Tsilhqot’in and Nuchatlaht cases, the claimant Indigenous groups excluded private lands from the scope of their claim. As a result, the question of whether Aboriginal title can exist over private land was left unanswered.

In September 2025, the British Columbia Supreme Court granted an order entered by consent of the Haida Nation, British Columbia and Canada declaring that the Haida Nation has Aboriginal title over all of Haida Gwaii. However, the parties also agreed that the declaration does not derogate from fee simple interests on Haida Gwaii, and the Haida Nation consents to fee simple interests continuing.

Against this backdrop, many legal commentators have highlighted the practical incompatibility between two forms of exclusive ownership over the same land. Others suggested frameworks where rights might be reconciled through Crown-led negotiations, with remedies limited as against private third-party landowners. From a practical perspective, provincial land registries uniformly treat Aboriginal title as a non-registrable interest in land.

The Cowichan Tribes and Wolastoqey Nation decisions represent the first attempts by Canadian courts to answer this important question directly.

The 2025 Decisions: One Question, Two Outcomes

Wolastoqey Nation

In Wolastoqey Nation, the New Brunswick Court of Appeal set aside preliminary orders of the New Brunswick Court of King’s Bench, which had allowed the Wolastoqey to pursue a declaration of Aboriginal title over private fee simple lands owned by non-Crown parties. In overturning the decision of the court below, the Court of Appeal made several key points.

The Court reasoned that a declaration of Aboriginal title over private fee simple lands would vest rights of exclusive possession, control and economic benefit in the title-holding group, which the Court viewed as irreconcilable with the rights held by fee simple owners. In the Court’s view, those interests cannot practically coexist in the same land.

The Court reaffirmed that Aboriginal title is recognized and affirmed under section 35 of the Constitution, and that the Crown remains responsible for reconciling Indigenous rights with broader public interests. However, it reasoned that declaring Aboriginal title over privately held lands would not further reconciliation because it would create two competing rights of exclusive ownership — an irreconcilable conflict. On this basis, the Court struck the portions of the Wolastoqey’s claim which sought a declaration over private lands.

However, the Court allowed the Wolastoqey to pursue claims against the Crown for damages and compensation upon a finding of Aboriginal title over private lands. The Court emphasized the legal distinction between a declaration and a finding, with the former having implications only for the Crown and the Wolastoqey, as the proper parties to the litigation. In practical terms, any such finding would be backward-looking as to Aboriginal title and without consequence to private landowners, but with forward-looking consequences for the Crown and the claimant.

Finally, the Court concluded by endorsing the “commonsensical and reconciliation-friendly” view that justice does not favour the dispossession of innocent private landowners. The Court found that compensation by the Crown is the appropriate remedy in cases of findings of Aboriginal title in private lands.

Wolastoqey has publicly stated it intends to appeal the decision to the Supreme Court of Canada.

Cowichan Tribes

In Cowichan Tribes, the British Columbia Supreme Court came to a different conclusion. After a 513-day trial, the Court issued an 863-page decision containing extensive and detailed evidentiary findings. The Court declared Aboriginal title over a historic Cowichan village site on the south arm of the Fraser River, in modern-day Richmond, British Columbia. The site’s footprint included both Crown and privately owned land.

The Court found that Aboriginal title and fee simple can legally coexist, rejecting the argument that fee simple interests automatically displace Aboriginal title. It characterized Aboriginal title as a “senior,” constitutionally protected interest that burdens the land, including land held in fee simple.

Importantly, the Court found that Aboriginal title does not necessarily defeat fee simple title. Where fee simple and Aboriginal title coexist, the Crown must take steps to reconcile those interests. Because both Aboriginal title and fee simple include rights of exclusive use, the Court acknowledged that the day-to-day exercise of one right may have to yield to the other unless and until reconciliation occurs. In practical terms, this means that the current fee simple owners’ exclusive use remains effective unless and until modified by negotiation, legislation, expropriation, remedial orders or other lawful means. The court emphasized that it is the Crown (not private owners) that bears primary responsibility for reconciling these competing interests.

In contrast to Wolastoqey Nation, which prevented any adverse impacts to private land rights, the Cowichan Tribes decision places private land rights in a zone of uncertainty. To be clear, the Court in Cowichan Tribes did not displace the current private landowners. The Court’s remedy was effectively directed against the Crown to resolve the issue through negotiations with the Cowichan. Nevertheless, the Court did not limit the possibility of further litigation (if the negotiations are unsuccessful) that could result in a wide range of potential outcomes that could affect the use, governance and value of the land.

The Cowichan Tribes decision has been appealed to the British Columbia Court of Appeal, but there has been no date set yet for the hearing of the appeal. Blakes is counsel for Musqueam Indian Band on the appeal, seeking to overturn the trial judgment.

What This Means for Businesses and Private Landowners

There are other claims relating to Aboriginal title across Canada, and, given the differing answers provided by the courts of New Brunswick and British Columbia, there are practical implications for businesses and private landowners that are of national interest. Two immediate implications with respect to land transactions are:

• Enhanced due diligence on significant private land transactions: Due diligence regarding potential Aboriginal title claim risks may be called for on significant acquisitions or long-term leases of private lands. Where diligence identifies potential risks, appropriate representations, warranties or indemnities may provide tools to manage that risk.
• Importance of location: Whether a court will consider a declaration of Aboriginal title over private land may now depend on the province in which the land is located — subject to further appeals.

Ultimately, the question of the application of Aboriginal title to private land will likely require a nationally binding decision from the Supreme Court of Canada.

For more information, please contact the authors or any other member of our Indigenous group.