Understanding what the BC court ruling really means for property owners and Indigenous rights
A British Columbia court recently ruled that Indigenous peoples have title to land that includes private property in Richmond. The announcement sparked immediate concern among property owners, with some politicians warning about the end of property rights as we know them.
But beneath the headlines lies a more nuanced reality. This decision doesn't signal the collapse of BC's property system. Instead, it forces us to confront a question we've avoided for 150 years: How can Aboriginal title and private property rights coexist on the same land?
The answer, as demonstrated by recent agreements like the Haida Nation deal, is more straightforward than you might think.
For over 150 years, British Columbia has operated under the Torrens land title system. When you purchase property in BC, you receive fee simple ownership, the highest form of property rights recognized in common law. Your name enters a government registry, you receive a title certificate, and that ownership is supposed to be absolutely certain. In legal terms, it's called "indefeasible."
This system forms the backbone of BC's economy. Banks lend hundreds of billions of dollars against these titles. Families pass down homes through generations. Businesses invest millions based on this certainty.
However, there's a historical complication that the Torrens system never fully addressed. Most of British Columbia was never formally purchased from Indigenous peoples. There were no treaties, no sales agreements, no compensation. The provincial government simply began registering land titles on top of existing Indigenous territories.
This created two parallel claims to the same land: Indigenous peoples asserting they never surrendered their territories, and property owners who purchased their land in good faith through the government's legal system. The Cowichan decision forces British Columbia to finally reconcile this 150-year-old contradiction.
The Cowichan case involves approximately 1,846 acres in Richmond, British Columbia. In August 2025, the BC Supreme Court recognized Aboriginal title to roughly 800 acres, about 40% of the claimed area. The ruling stems from allegations that a government official improperly took land that was intended to become an Indigenous reserve during the 1850s.
Critically, the Cowichan Tribes explicitly stated they are not targeting residential properties or private homes. Their focus remains on government and corporate lands. Despite this clarification, the court's recognition that Aboriginal title exists over the entire area has created understandable concern among property owners.
The court has imposed an 18-month pause to allow for negotiations on how this dual recognition of rights will function in practice.
The complexity of this situation stems from what appears to be a legal impossibility. Aboriginal title provides exclusive use and control of land, enjoys constitutional protection under Section 35, and was never extinguished despite colonial settlement. Fee simple ownership similarly provides exclusive use and control of land, exists within the registered Torrens system, and underpins BC's entire economy.
How can two different parties hold "exclusive" ownership of the same land? It's similar to claiming two people can simultaneously be the sole owner of the same vehicle.
Fortunately, recent developments have demonstrated that this apparent impossibility can be resolved through negotiation and creative legal frameworks.
Earlier in 2024, the BC government and the Haida Nation established what may become the blueprint for reconciling these competing claims. The Haida agreement creates a layered ownership model that honors both Aboriginal title and private property rights.
Under this framework, private property rights remain completely unchanged. Property owners retain their titles, their deeds, and their position within the Torrens system. Banks continue to provide mortgages. Nothing changes for individual homeowners.
Simultaneously, Aboriginal title is recognized but remains dormant with respect to private lands. Think of it like mineral rights. Someone else may own the resources beneath your property, but this doesn't affect your use of the surface. The title exists legally but doesn't interfere with private property ownership.
The crucial element of the Haida agreement was the Nation's contractual commitment to honor all existing private property. In exchange, they gained control over government lands, participation in resource revenues, and gradual jurisdiction over their traditional territory. Since only 2.2% of Haida Gwaii consists of private property, this arrangement created certainty for everyone while advancing reconciliation.
The Cowichan case and similar future disputes have multiple pathways toward resolution through negotiation rather than prolonged litigation.
Governments could provide alternative Crown land of equivalent value, leaving private property completely untouched while ensuring First Nations receive appropriate compensation and territory.
Rather than direct land transfers, agreements could provide First Nations with shares of property transfer taxes, percentages of resource revenues, or municipal tax sharing arrangements. This approach acknowledges Aboriginal title through economic participation rather than physical land transfers.
Joint decision-making structures for major development projects, requiring First Nations consent for significant changes, and shared governance models represent another approach. These frameworks honor Indigenous authority while maintaining private property rights.
The key insight is that creative solutions exist that respect both the Aboriginal title system and the private property system without requiring one to extinguish the other.
If you own property in Victoria, Saanich, Sooke, or parts of Nanaimo, your situation differs fundamentally from Richmond's. During the 1850s, James Douglas negotiated and signed treaties covering approximately 930 square kilometers across these areas. These Douglas Treaties, while subject to their own ongoing disputes about interpretation and implementation, formally addressed the question of land title.
The Douglas Treaties covered most of Greater Victoria, the Saanich Peninsula, parts of Sooke, and areas around Nanaima. First Nations signed agreements, received compensation, and land was legally transferred according to the standards of that era.
This is why Victoria residents aren't seeing court cases like Cowichan's. Treaty land represents settled land from a legal perspective. Yes, debates continue about whether all treaty promises were kept and what the treaties actually meant. But the fundamental question of land ownership was addressed 170 years ago.
Richmond and most of British Columbia never signed treaties. That's why these cases are reaching courts now.
As we move forward, three facts should ground our understanding of this issue.
First, the uncertainty around land title exists primarily in areas where no treaties were signed. This encompasses most of British Columbia, but there are significant exceptions, particularly on southern Vancouver Island.
Second, no democratic government in Canada forcibly seizes private homes from individual owners. This doesn't happen, and the Cowichan Tribes have explicitly stated this is not their goal. The concerns about government taking people's houses don't align with historical precedent or current intentions.
Third, both BC's economy and Indigenous peoples need certainty. Our economy requires clear property rights to function. Indigenous communities need their constitutional rights recognized and historical injustices addressed. The Haida agreement demonstrates that we can achieve both objectives simultaneously.
Moving beyond this impasse requires commitment from all parties involved.
Provincial and federal governments must stop deferring these issues to future administrations. Every year of delay generates more litigation, more uncertainty, and more division. Negotiating now, while goodwill still exists, makes economic and social sense.
Property owners should understand that their titles remain secure while learning about the history of the land they occupy. Supporting negotiated solutions that bring certainty to all parties serves everyone's long-term interests.
First Nations should continue using legal channels to advance their rights. Their patience with a system that has historically failed them demonstrates remarkable restraint and commitment to peaceful resolution.
For all British Columbians, reconciliation isn't about taking from one group to give to another. It's about finding frameworks that allow everyone to move forward with clarity and dignity.
The Cowichan decision doesn't represent the end of property rights in British Columbia. It marks the beginning of an overdue conversation about how two legitimate legal systems can operate on the same territory.
Yes, the situation is complex. Yes, it challenges assumptions many of us hold about property ownership. But the alternative—endless litigation, permanently unresolved claims, and ongoing uncertainty—serves no one's interests.
Canada has built railways across impossible terrain. We've successfully maintained both English and French legal traditions. We can resolve this challenge too.
The question isn't whether Aboriginal rights and property rights can coexist. They must coexist, because Indigenous peoples and property owners are all here to stay. The only real question is whether we resolve this through decades of expensive court battles or through good-faith negotiation.
The smart choice seems clear. The Haida showed us the way. Now the rest of British Columbia needs to follow that example.
No. The Cowichan Tribes have explicitly stated they are not targeting private homes. Negotiated agreements like the Haida model specifically protect private property while recognizing Aboriginal title.
The long-term effect depends on how quickly certainty is established through negotiation. The Haida agreement stabilized property rights immediately by creating a clear framework. Similar negotiations in other areas would likely have the same effect.
Probably not. Victoria, Saanich, Sooke, and parts of Nanaimo were covered by the Douglas Treaties in the 1850s, which addressed land title questions. The Cowichan situation arises because no treaty was signed for that territory.
Continue normal ownership and use of your property. Stay informed about negotiations in your area. Support political leaders who favor negotiated solutions that provide certainty for all parties.
The court imposed an 18-month pause in the Cowichan case specifically to allow for negotiations. How long the broader uncertainty lasts across BC depends on political will to negotiate rather than litigate.
This article provides general information about the Cowichan decision and Aboriginal title in British Columbia. It is not legal advice. For specific questions about your property, consult with a qualified legal professional.
Dustin Miller is the managing broker of 8X Real Estate. When he's not on the road, he is on his computer looking at real estate. You can often find Dustin at his office enjoying a bowl of won-ton soup.
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