Trust as the Foundation of Property Ownership

What is the Cowichan court case about?
The Cowichan Nation brought an action seeking a declaration of Aboriginal title to their traditional village (“Claim Area”) and an Aboriginal right to fish the south arm of the Fraser River. The members of the Cowichan Tribes, Stz’uminus First Nation, Penelakut Tribe, Halalt First Nation, and Lyackson First Nation are the descendants of the historic Cowichan Nation. The Claim Area is approximately 1,846 acres of land located on Lulu Island, across from Tilbury Island, in Richmond and today is owned by the federal Crown, the Vancouver Fraser Port Authority (“VFPA”), the City of Richmond, and private third parties. Private third parties were not part of the litigation. There were six defendants opposed to the claim: Canada, British Columbia, Richmond, the VFPA, Tsawwassen First Nation, and the Musqueam Indian Band.

What are the outcomes of the Cowichan court case?
On August 7, 2025, the trial judge made several declarations:

1. The Cowichan have Aboriginal title to a portion of the Claim Area (the “Cowichan Title Lands”) within the meaning of s. 35(1) of the Constitution Act, 1982;
2. The Crown grants of fee-simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in certain highway lands in the Cowichan Title Lands, unjustifiably infringe the Cowichan’s Aboriginal title;
3. Except for Canada’s fee-simple titles and interests in certain lands (the “Vancouver Airport Fuel Delivery Project Lands”), Canada and Richmond’s fee-simple titles and interests in the Cowichan Title Lands are defective and invalid;
4. With respect to the Cowichan Title Lands, Canada owes a duty to the Cowichan to negotiate in good faith reconciliation of Canada’s fee-simple interests in the Vancouver Airport Fuel Delivery Project Lands with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown;
5. With respect to the Cowichan Title Lands, 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, in a manner consistent with the honour of the Crown; and
6. The Cowichan have an Aboriginal right to fish the south arm of the Fraser River for food within the meaning of s. 35(1) of the Constitution Act, 1982.

What happens next?
All parties have filed notices of appeal since the August 7 decision. It is widely believed that after the appeal to the British Columbia Court of Appeal, this case will proceed to the Supreme Court of Canada.

The trial judge suspended the declaration as it relates to the defective and invalidity of Canada and City of Richmond’s fee-simple interests for 18 months, allowing time for negotiations between the City of Richmond and the Cowichan Nation.

What is the timeline for this case to be fully resolved?
Resolution could take several years, depending on the appeals, reference cases, and/or negotiations. If this case makes its way through the British Columbia Court of Appeal and the Supreme Court of Canada, it could take up to a decade to achieve a fully final and binding decision.

Will this case serve as precedent on the impact of Aboriginal title on fee-simple interests for future cases?
It is likely this decision will be influential, but whether it becomes binding precedent depends on what is decided on appeal. Until the appeals are resolved, the trial judgment stands as a significant first-instance decision.

What is Aboriginal title?
Aboriginal title is a constitutionally protected, collective interest in land rooted in Indigenous occupation prior to colonization. It carries the right to decide how land is used and to benefit from its uses, subject only to justified Crown infringement (Delgamuukw v. BC, 1997; Tsilhqot’in Nation v. BC, 2014). It is a real interest in land, not merely a right to use, and exists independently of Crown grants or registration.

What is fee-simple title?
Fee-simple ownership is the highest form of property ownership recognized by common law. It grants the holder broad powers to use, transfer, or encumber the property, limited only by law or by private restrictions. In BC, the fee-simple estate is given force and certainty through the Torrens system, which guarantees that the person registered on title is the legal owner, and that the register itself is conclusive evidence of ownership.

How will the Cowichan decision impact ongoing treaty negotiations through the BC Treaty Commission?
At this point in time, we are not aware of any Indigenous nations removing themselves from the treaty process as a result of the Cowichan decision. There are three modern treaties expected to be ratified in 2026 through the BC Treaty Commission framework: the K’ómoks Treaty, the Kitselas Treaty, and the Kitsumkalum Treaty.

I want to learn more. What are some additional resources?
Some resources include:

• Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490
• Unceded: Understanding British Columbia’s Colonial Past and Why It Matters Now by George Abbott

What is BCREA’s response to this court case?
BCREA CEO Trevor Koot wrote a discussion paper, Trust as the Foundation of Property Ownership: The Future of Fee-Simple Title and the Torrens System in British Columbia. BCREA does not seek to resolve questions of reconciliation or the constitutional place of Aboriginal title. BCREA will work with other stakeholders, such as the BC Financial Services Authority (BCFSA) and Real Estate Errors and Omissions Insurance Corporation (REEOIC), to contribute to the development of messaging and guidance that will best inform REALTORS®’ and their clients’ decisions.

Additionally, BCREA has a duty to ensure that government decisions affecting property ownership promote and instill trust. This means working collaboratively with stakeholders and all levels of government to shape policies that maintain confidence in registered title.

Will BCREA be making changes to its land acknowledgement, found at the bottom of its landing page?
BCREA’s intent with the land acknowledgement is to offer a respectful statement that recognizes the history of Indigenous territories where REALTORS® live and work alongside the continued presence of Indigenous peoples. It is intended to encourage reflection on relationships to place and our shared communities.

This acknowledgement does not change or challenge private property rights or BC’s Torrens land-title system. It is not a legal statement or policy position – it is about awareness and fostering understanding.

Will BCREA oppose this case on behalf of private property owners?
BCREA’s role is not to litigate ownership questions but to advocate for systems that preserve certainty, transparency, and confidence for everyone who transacts in real property, while supporting REALTORS®, managing brokers, consumers, and other stakeholders as they navigate the complexities that come with this quickly evolving environment.

What should REALTORS® tell their clients who come to them with fears and concerns?
BCREA is working with BCFSA and REEOIC to understand the potential impacts of this case on REALTORS® and how they represent their clients. In the meantime, it’s okay to say, “I don’t know” when clients come to REALTORS® with questions.

Are the affected properties in the Cowichan land claim area insurable? Are affected property owners having challenges obtaining financing?
At this point in time, BCREA is still working with relevant real estate stakeholders to determine whether affected property owners are having challenges obtaining insurance or financing.

Will this case impact BC Assessment values?
BC Assessment will provide the 2026 property assessments in January. Those assessments will be based on real estate activity and will reflect the values as of July 1, 2025. The local housing markets, as of July 1, 2025, determine property values. This means BC Assessment reports values based on July 1, 2025, without predicting future trends. It is important to note that BC Assessment is independent of local governments and therefore does not manage property taxation or have a role in setting property tax rates.

Are the affected property owners still required to pay property taxes?
According to Richmond mayor Malcolm Brodie, speaking at the October 29, 2025, City of Richmond Information Session on the Cowichan decision, the City of Richmond will not be offering tax deferment, compensation, programs, or paid-for legal representation for affected property owners.

Will affected property owners continue to receive municipal services through the City of Richmond?
This is one of many unanswered questions that need to be resolved between the City of Richmond and the Cowichan Nation.

Is what’s happening in Cowichan similar to what happened in Jericho Lands or Haida Gwaii?
Jericho Lands is planning and development-based, not a court-ordered title declaration.
BC and Canada signed the “Rising Tide” and “Bit Tide” Agreements recognizing the Haida Aboriginal title to terrestrial lands of Haida Gwaii. In 2025, the Supreme Court formally declared Haida title, implemented with a 24-month transition period.

Is it true that development capital is leaving BC or Canada as a result of this case?
At this time, BCREA has not been able to substantiate whether development capital is leaving BC or Canada as a result of this case.

What is the Cowichan Tribes’ response to the outcome of this case?
On October 27, the Cowichan Nation published a statement: “The Quw’utsun Nation Responds to Misleading and False Information Regarding Aboriginal Title Case.” In it, they say that the court case “has not and does not challenge the effectiveness or validity of any title held by individual private landowners. The ruling does not erase private property.”

What is the BC Government’s response to the outcome of this case?
Attorney General Niki Sharma has stated that “we disagree strongly with the decision.” The BC Government will be filing an appeal and seeking a stay to pause the judgment until the appeal is resolved. The government believes the ruling must be reconsidered, citing significant legal issues, especially the potential unintended consequences for fee-simple private property rights in BC. Minister Sharma emphasized the Province’s commitment to protecting private property rights while advancing reconciliation and reiterated that the Province prefers negotiating land claims rather than proceeding through courts, which can create uncertainty.

What is the Government of Canada’s response to the outcome of the case?
Federal Crown-Indigenous Relations Minister Rebecca Alty’s office has stated that “Further legal clarity is required to address the decision’s potentially significant nationwide implications, particularly relating to private property rights.”

What is Musqueam Indian Band’s response to the outcome of this case?
On September 5, 2025, the Musqueam Indian Band published a statement saying “Musqueam is deeply concerned about this judgement, particularly its potential impacts on future land claims and court declarations of Aboriginal rights to another First Nations’ core territory.” They will be “vigorously appealing this decision.”

What is Tsawwassen First Nation’s response to the outcome of this case?
Similar to Musqueam Indian Band, Tsawwassen First Nation published a statement saying the court decision “undermines decades of work to manage the fishery fairly and sustainably.” Tsawwassen First Nation “are appealing this decision as a nation acting firmly, responsibly, and with determination to protect our Treaty and our future.”