Cowichan decision raises questions around fee simple titles

In a precedent-setting decision with sweeping implications for landowners across British Columbia, the BC Supreme Court’s ruling in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, raises important legal and practical questions about the nature and security of fee simple title – a term referring to ownership of full, permanent property rights– when it overlaps with Aboriginal title. 

For landowners, public and private, this case sends a clear message: Fee simple title is not immune from constitutional scrutiny, and the existence of Aboriginal title can, in some circumstances, render that title invalid. 

The legal landscape before Cowichan 

Under BC’s Land Title Act and the Torrens system (BCs land title system that leverages an up-to-date record of land registry to determine ownership), registered owners of land in BC are typically granted indefeasible title, a title presumed to be conclusive and unchallengeable, even in the face of prior unregistered interests. However, the Canadian courts have long recognized that Aboriginal title is not created by statute but instead arises from the historic occupation of land by Indigenous peoples and is protected under s. 35(1) of the Constitution Act, 1982. 

The Supreme Court of Canada’s 2014 decision in Tsilhqot’in Nation v. British Columbia confirmed that Aboriginal title includes the right to possess, use and manage land. What Cowichan adds to the jurisprudence is a direct collision between constitutionally protected Aboriginal title and registered fee simple title. 

Key findings on fee simple title 

In Cowichan, Justice Young held that many fee simple titles granted in the Cowichan Title Lands were: 

• Issued without constitutional or statutory authority (particularly post-Confederation) 
• Incompatible with pre-existing Aboriginal title 

Therefore, they were unjustified infringements of that title. The Court ruled that Canada and Richmond’s fee simple interests, excluding certain lands used for critical infrastructure, are constitutionally defective and invalid. It rejected arguments by Richmond and British Columbia that Sections 23 and 25 of the Land Title Act (which protect indefeasibility of registered title) could shield those interests. 

The Court’s position: Indefeasibility does not extinguish Aboriginal title 

One of the most consequential aspects of the decision is the rejection of indefeasibility as a defence to Aboriginal title. Justice Young emphasized that Aboriginal title lies outside the provincial land title system, and the Torrens regime does not extinguish constitutionally protected Indigenous land rights, which marks a profound shift in how registered title is understood in BC. 

The Court confirmed that: 

• Fee simple title granted on top of land subject to Aboriginal title is burdened by that title 
• Third-party purchasers, even if they acquired land in good faith, may not defeat Aboriginal claims simply by pointing to their registration 
• The Crown’s failure to reconcile Aboriginal title before issuing such grants renders those grants vulnerable

Implications for landowners 

While the Court stopped short of ordering any land to be returned or compensation paid, the practical implications are significant: 

1. Uncertainty in land tenure

Fee simple owners, particularly those whose land is within or adjacent to unsettled claims, now face uncertainty about the strength of their title. Title may not be as “indefeasible” as once believed, particularly where historical Aboriginal use can be proven. 

2. Limits of the Torrens system

This case reinforces that the Land Title Act cannot cure a constitutional defect. Even properly registered titles can be overridden where they are incompatible with Aboriginal title. 

3. Due diligence is no longer enough

Lawyers advising purchasers or developers can no longer rely solely on a title search. Assessing Aboriginal title claims is now a necessary component of due diligence, especially for major infrastructure, port lands and waterfront property. 

4. Duties to negotiate

Governments holding or managing affected land are now under a legal duty to negotiate in good faith with Indigenous titleholders to reconcile interests. This opens the door to restructuring land tenure through agreements, land swaps or compensation, processes in which fee simple owners may be invited or required to participate. 

5. Precedent for future claims

This case is unlikely to be the last. The Court’s reasoning will be instructive in other coastal and riverine Aboriginal title claims, where Crown grants over historic Indigenous settlements are in dispute. Titleholders elsewhere in BC, especially along the Fraser, Skeena and Columbia river systems, should take note. 

What should fee simple owners do now? 

• Monitor appeals and negotiations – An appeal is likely, and future decisions may clarify or limit this ruling 
• Engage with legal counsel – Particularly if your land lies within or near unresolved claims 
• Understand the evolving nature of land ownership in Canada – Fee simple ownership is no longer absolute when it comes into conflict with constitutionally protected Aboriginal rights 

Importantly, the Cowichan have indicated that they do not intend to displace or dispossess private landowners. Instead, their stated goal is to have their Aboriginal title respected and reconciled through good faith negotiations with the Crown. For most private property holders, this means that constructive engagement, not expropriation, is the likely path forward. 

Conclusion 

Cowichan is a watershed moment in Canadian land law. It affirms that constitutional rights cannot be ignored simply because land has passed into private or municipal hands. For landowners, developers and municipalities, it’s a call to understand the layered complexity of title in British Columbia, and to participate in a more honest, legally sound approach to reconciliation and land governance. 

As we move forward, legal title and moral title must increasingly be seen not in conflict, but in conversation. 

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