What the Cowichan case means for mortgages, markets, and land ownership

Key Takeaways:

• The Cowichan Tribes v. Canada ruling recognized Aboriginal title over a small area in Richmond, creating major uncertainty for private property owners, developers, and municipalities who fear broader implications for land rights across B.C. and Canada.
• Critics like developer Ben Taddei warn the decision exposes significant risks to Canada’s property-rights system, arguing that unclear approaches to UNDRIP and overlapping land claims are fueling anxiety and threatening confidence in real estate investment.
• Indigenous law experts such as Merle Alexander counter that the fear is overstated, noting the ruling applies to a very limited area and that stable solutions—like negotiated agreements (e.g., the Haida Gwaii model)—can protect private property while recognizing Aboriginal title.

The Whole Story:

The longest trial in Canadian history has wrapped up but the aftershocks of the judge’s decision continue to shake the foundations of property rights, home ownership and land development in the province and beyond. 

Cowichan Tribes v. Canada is an Aboriginal title and fishing rights lawsuit brought by the Cowichan Nation and allied First Nations seeking recognition of title over their historic village site of Tl’uqtinus on Lulu Island at the mouth of the Fraser River in Richmond, along with a constitutional right to fish the river’s south arm for food. After more than a decade of proceedings and 500-plus days of hearings, the B.C. Supreme Court ruled that the Cowichan had established Aboriginal title to part of the claim.

The core issue is that land also includes public and private land, prompting appeals from the province of B.C., Richmond and others. Some, like Premier David Eby, say landowners should be concerned and that the ruling could have implications across the nation.

Richmond officials are currently urging federal and provincial governments to provide protections for fee simple title holders (a term for complete and total property ownership) as the decision has created major uncertainty for residents and businesses—affecting mortgages, insurance, property values and the ability to sell. Some have already reported issues renewing mortgages or selling their property. 

“There are many examples across the province, and across the country, where Indigenous people were displaced from land illegally, wrongly, unjustly, where there are now fee simple  property owners that operate businesses or live in homes,” Eby told reporters following the ruling.

Partner and Chief Operating Officer at Conwest Developments Ben Taddei was sounding the alarm about Canadian land rights as far back as 2007 when the United Nations adopted UNDRIP. Now, Taddei calls the issue the number one risk the nation’s real estate sector faces. 

“Our entire property sector—all asset classes, all corners of this nation—is predicated on a known, historical land rights system,” he said. “Private property rights are known, predictable and reliable. People investing capital, whether it be a homeowner buying a $500,000 condo or a major international corporation investing tens or even hundreds of millions of dollars in resource projects or infrastructure, need certainty of tenure.”

He argued that Canada and B.C.’s UNDRIP laws have honourable objectives, but how Governments intend to achieve them or what all the unintended consequences remain unclear. Taddei explained that the Cowichan case is part of the blowback from this ambiguity. 

“The judgment is clear and, I remind you, it’s law now in B.C., unless it’s overturned by a higher court,” said Taddei. “Private property owners in areas of proven aboriginal title have no land rights according to the Judge’s decision.” 

He added that the ruling is fueling anxiety for private property owners as essentially all of the province is under active land claims

“Does this mean that one day there will be no private property in B.C.? I don’t know. Does anybody know? Now you can appreciate where all the fear and anxiety are coming from,” he said. 

What the solution is specifically, Taddei doesn’t know, but he called on the B.C. government to be clear and transparent on the issue as it impacts everyone in the province. Rather than ad hoc reconciliation, Taddei wants leaders to let people know where this is going and how they intend to get there. He thinks everyone wants certainty.

“For starters the government should unequivocally defend private property rights,” he said. “Then it needs to confirm vigorously that our public land governance model won’t change.”

He believes that once certainty is in place for land rights, a new decision making structure regarding public land development should be created, thereby enabling the goal of reconciliation. “Make things transparent, predictable, and fair,” he suggests. “Then things will work better for everyone.” “We’ll finally achieve a satisfactory level of certainty and commensurate shared prosperity in B.C.,” he said. “I’m optimistic.” 

Indigenous resource lawyer and a Principal at Miller Titerle + Co Merle Alexander urged leaders and builders to not give into fear-based thinking, noting that the case does not destroy property rights and these issues are better worked out through negotiation rather than on appeal. 

“Only the government of Canada can extinguish Aboriginal title and then only on certain terms,” he said. “They did not do that in this instance. Everything that happens after is sort of flawed. At the root there’s a fundamental error.”

Alexander explained that the judge wisely told B.C. to spend the next 18 months negotiating a way for fee simple to co-exist through a government-to-government agreement. Instead, they appealed just three days later. He believes that fear of land rights is causing many to inflate the impact of the case and take an adversarial position.

“Only in those instances where Aboriginal title has been established will that circumstance arise. I think that goes to the heart of the fear. There’s a lot of worry about what if Aboriginal title was established in a whole bunch of other areas in the province,” he said. “I think that worry is probably unfounded because not many First Nations are going to be able to establish Aboriginal title at this level. But, if First Nations do start on pursuing that on a grander scale, then on a very case-by-case basis you might see more of this discussion. But as the case currently stands, it has very limited application to a very small geographic area in Richmond.”

Rather than settle the issue, Alexander believes further court action could make things worse. If Cowichan is upheld, core legal findings, especially those related to the interaction between Aboriginal Title and Fee Simple Title may become binding B.C. law for the whole province, he said. 

“It could also just require a larger fix. Right now, it’s a negotiation and it’s the right surgery for this circumstance,” he added.

He cited the 2024 Haida Nation “Rising Tide” Haida Title Lands Agreement as a perfect example of how to proceed. The deal between the province and the Council of the Haida Nation formally recognized Haida Aboriginal title over the terrestrial lands of Haida Gwaii while setting out how private fee simple property will continue. 

Under the agreement, Haida title is recognized across the archipelago, but the Haida Nation explicitly agrees to honour existing fee simple interests, and those private property rights remain under provincial jurisdiction and governed by B.C. laws.

The agreement states that recognition of Haida Aboriginal title does not alter or derogate from existing fee simple interests or related charges and interests, and commits B.C. and the Haida Nation to a transition period where they align laws and decision-making over land and resources without changing private ownership or local government services on Haida Gwaii.

For developers, Alexander noted that strategies might shift, but this is nothing new, and industries like mining and energy have already found solutions. 

“Developers might be in the same shoes that the mining companies and forestry companies and oil and gas companies have been in for quite a long time,” he said. “The only real solution is for them to negotiate directly with First Nations. So, we might be seeing a body of law that has to be developed like that where developers are doing some degree of coordination.”This could include template agreements that acknowledge and create solutions in the event that Aboriginal title is established. 

“It just takes some mindfulness and it takes some degree of negotiation,” he said. “But you can find solutions to it.”

As the dust settles on the Cowichan decision, the Haida agreement stands as evidence that Aboriginal title and fee simple rights can coexist. The question now is whether the rest of the province is ready to follow that lead.