The recent ruling of the B.C. Supreme Court in the Cowichan Tribes Aboriginal title case that has caused so much consternation in Richmond (essentially a suburb of Vancouver), across B.C. and indeed Canada, is controversial for its conclusions about the relationship between private land ownership (“fee simple title”) and Aboriginal title.

In that case, the court ruled that certain fee simple interests in land held by the City of Richmond and by Canada were “defective and invalid.” The court did not go so far as to issue a similar declaration of actual invalidity over the other private lands within the area that the court found to be now subject to Aboriginal title.

Significantly, however, Justice Young said the following at paragraph 3551 of her judgment:

[3551] …A precedent that will follow from this case is that provincial Crown grants of fee simple interest do not extinguish nor permanently displace Aboriginal title, and ss. 23 and 25 of the LTA [Land Title Act] do not apply to Aboriginal title.[emphasis added]

Put simply, these sections of the B.C. Land Title Act serve to guarantee the indefeasibility of fee simple land titles in the province. If these sections are said not to apply to certain fee simple lands, due to a court declaration of Aboriginal title over those lands, then the private interests in those lands can no longer be said to be registered indefeasible fee simple titles, and their ultimate legal validity is wholly thrown into question.

The Cowichan judgment issued on Aug. 7, 2025.

On Sept. 5, 2025, almost a full month later, the B.C. Supreme Court was asked by the Haida, Canada and the B.C. government to issue a consent order declaring a “negotiated” Aboriginal title to the entirety of the Haida archipelago covering over one million hectares of land, water and seabed of Haida Gwaii—much of which is public Crown land and private land.

This consent order regarding Aboriginal title to Haida Gwaii was not a court declaration borne of a lengthy Aboriginal title trial ultimately decided by the courts like the Cowichan case, but rather a court deferring to what it was told those three parties had “agreed to” for a title outcome on Haida Gwaii.

Note that in the Haida context, the court issued a declaration specifically including all the fee simple lands on Haida Gwaii. Recall as well that according to Justice Young in the Cowichan case, the effect of such a declaration renders sections 23 and 25 of the Land Title Act inapplicable to such lands.

In my view, that leads to the legal conclusion that those fee simple interests on Haida Gwaii no longer have the protection of sections 23 and 25 of the Land Title Act.

To be clear, under the Haida Rising Tide Agreement, fee simple interests on Haida Gwaii were already only protected by a simple contract between the Haida and the B.C. government (to which the private landowners are not parties) along with constitutionally questionable provincial legislation.

The B.C. government had almost a month to study the Cowichan decision, and had it done so properly, it should have realized that, as a result of that decision, a declaration of Aboriginal title over private fee simple lands would render the provincial statutory protections of fee simple titles on Haida Gwaii legally defective.

Read the full article at the Fraser Institute: How two governments breached the public interest and rights of private landowners in B.C. (Part 2)