B.C. Court Dismisses Private Landowner’s Application to Reopen Trial Declaring Aboriginal Title Over Private Lands

In August 2025, the Supreme Court of British Columbia (Court) released its decision in Cowichan Tribes v. Canada (Attorney General) (Cowichan Tribes), declaring Aboriginal title over an area that includes privately owned land and concluding that Aboriginal title and fee simple ownership can legally coexist.

The decision has received significant media attention since that time, along with a subsequent decision arising out of the New Brunswick Court of Appeal on the same topic. See our bulletins Aboriginal Title Over Private Lands: Legal Uncertainty After Recent Court Decisions and Update: Supreme Court of Canada Denies Leave to Appeal in Wolastoqey Nation – Aboriginal Title Over Private Lands for further reading on this topic.

In late June, the Court dismissed an application by a private third-party landowner to reopen the Cowichan Tribes trial. With that application now decided, the appeal is one step closer to being heard.

Background

In August 2025, the Court declared that Cowichan Tribes had proven Aboriginal title to a historic village site in modern-day Richmond, British Columbia. The title area includes both Crown and privately-owned land. Cowichan Tribes did not ask the Court to invalidate the interests of private landowners. Instead, the Court determined that the province of British Columbia (Province) has a duty to negotiate reconciliation of the private third-party interests with Cowichan Tribes’ Aboriginal title.

Importantly, the only defendants at trial were the Province, Canada, the City of Richmond, the Vancouver Fraser Port Authority, and two local First Nations. No private landowners participated in the trial.

The Decision

Earlier this year, Montrose Properties Limited and its subsidiaries (Montrose) applied to reopen the trial and be added as a defendant. Montrose is the largest private landowner in the claim area and stated it has lost business opportunities because of the declaration of Aboriginal title over its lands. It argued that the trial should be reopened so it could be added as a defendant and provide evidence and submissions on key issues.

Cowichan Tribes opposed the application. They argued (1) that the trial was over and it was too late to add parties, and (2) the application was an abuse of process because it sought to relitigate issues already determined.

The Court rejected the first argument but accepted the second. The Court found the application was an abuse of process because:

• The application came too late. Montrose knew about Cowichan Tribes’ asserted claim by at least 2016 and was aware of the litigation, but did not seek to participate until well after the trial concluded and reasons were issued.
• Montrose sought to address issues that had been fully canvassed at trial. This included whether a declaration of Aboriginal title could be made over private land and whether such Aboriginal title and private (fee simple) title could coexist. The only “new” issue raised was whether certain provincial statutes apply to the title lands, which was an issue not raised in the pleadings.
• Reopening the trial would be contrary to the principles of finality and judicial economy. The Court noted that the proper mechanism for challenging a trial decision is an appeal, which is already being pursued by the defendants.
• Parties should not be permitted to “wait and see.” The Court agreed with the plaintiffs that reopening the trial may incentivize third parties to wait out Aboriginal title litigation and seek to participate in litigation only after reasons for judgment “are met with disapproval.” Such an approach would only prolong already lengthy proceedings.

Takeaways

The unique nature of the application makes it somewhat difficult to draw any broad conclusions from. It is rare for a trial to be reopened after reasons for judgment have already been issued. In the present case, it seems the Court was not convinced that Montrose had put forward any new evidence or raised legal issues that justified reopening an over 500-day trial.

It is worth emphasizing that the decision does not address the proper role for private landowners who seek to participate in Aboriginal title litigation in a timely manner. In past decisions considering whether or not private landowners should be given notice of Aboriginal title litigation, the courts have recognized that the participation of hundreds of private landowners risks frustrating Aboriginal title claims entirely. The decision also does not address the merits of the issues raised by Montrose. These issues will form part of the many unanswered questions directed to the British Columbia Court of Appeal as part of the appeal of Cowichan Tribes.

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