Background
On August 7, 2025, the Supreme Court of British Columbia released its decision Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490. The plaintiffs had advanced an Aboriginal title claim to an area along the North bank of the Fraser River in the city of Richmond, which they claimed was the site of their traditional village of Tl’uqtinus, and which included land submerged by the river. The Court found that the plaintiffs, as the descendants of the historic Cowichan Nation, had established Aboriginal title to part of the claim area, including a portion of submerged lands (the “Cowichan Title Lands”). The plaintiffs were also successful in establishing an all-species Aboriginal right to fish for food in the south arm of the Fraser River, and acquiring other related orders of declaratory relief. This decision affirms that submerged lands can be subject to Aboriginal title and that Aboriginal title and fee simple interests can coexist, with infringements subject to the Sparrow justification analysis on a case-by-case basis.
The plaintiffs were the Cowichan Tribes, Stz’uminus First Nation, Penelakut Tribe, and Halalt First Nation, on their own behalf and on behalf of the descendants of the historic Cowichan Nation, which the Court found includes the members of the four plaintiff communities and Lyackson First Nation.
The defendants included Canada, British Columbia (“BC”), the city of Richmond, the Vancouver Fraser Port Authority (“VFPA”), the Musqueam Indian Band (“Musqueam”) and the Tsawwassen First Nation (“Tsawwassen”). While all opposed the Aboriginal title claim, the defendants took differing stances on the basis for their opposition, and on many of the issues raised. Musqueam and Tsawwassen did not in this litigation advance section 35 claims of their own.
The claim area was 1,846 acres of land within the municipality of Richmond, now comprised of lots held in fee simple by Canada, VFPA, Richmond, and private third parties.
The plaintiffs, and the defendants Musqueam and Tsawwassen, are all Central Coast Salish communities. Each relayed their own Indigenous perspectives on issues including the historical use and occupation of the claim area and how Coast Salish Indigenous laws of land ownership, kinship and reciprocity, and resource access governed relationships between the plaintiffs and the hən̓q̓əmin̓əm-speaking peoples of the lower Fraser River, like Musqueam and Tsawwassen.
The case was heard over 513 days of trial, from September 2019 to November 2023. The Court considered significant amounts of oral history evidence from many respected knowledge holders from the plaintiff communities and Musqueam. The Court also had before it voluminous evidence from 8 different experts and a substantial historical and ethnographic record.
Historical Crown treatment of the Lands of Tl’uqtinus
The Judge accepted that the Cowichan Title Lands were Indian settlement lands which colonial officials in the late 1850s had promised the plaintiffs’ ancestors would be set apart as their reserve lands. This promise was not honoured, and the lands were sold as grants of fee simple, eventually becoming part of the city of Richmond. The Court held that BC did not have the jurisdiction to extinguish Cowichan’s Aboriginal title, and that the Crown grants of fee simple did not displace or extinguish Aboriginal title. The Court also rejected arguments that the claims were barred by limitations legislation, laches, and the defence of bona fide purchase for value without notice and held that fee simple registration under the Land Title Act, RSBC 1996 did not limit Aboriginal title.
Aboriginal title and rights and the operation of Coast Salish Indigenous laws
Differing Coast Salish Oral Histories
The plaintiff communities and Musqueam provided oral history evidence regarding the plaintiffs’ presence on and use of the south arm of the Fraser River. Musqueam and the plaintiffs generally agreed that Coast Salish laws of kinship-based permission existed but disagreed on whether and how these laws applied to the south arm of the Fraser River and the claim area.
The plaintiffs’ oral history spoke to Tl’uqtinus being a stl’ulnup, which they defined as being a very important place to the Cowichan Nation. The plaintiffs’ oral history also spoke to their historical occupation and harvesting activities at and around Tl’uqtinus, their ancestors travelling across the Salish Sea en masse every summer by canoe from their winter villages on Vancouver Island and the Gulf Islands, and the identity of the historic Cowichan Nation.
Musqueam shared oral history about the south arm of the Fraser River being part of Musqueam territory, Musqueam’s role as stewards of the south arm, and the role of marriage and kinship-based permission in governing resource access between families and communities. Musqueam led oral history that Coast Salish law recognized that harvesting rights could be gained through marriage and exist on a family-to-family basis, lasting generations. Family travelling to the south arm would check-in with Musqueam and reaffirm these kinship connections. Musqueam’s oral history was that the Cowichan Nation’s access to the south arm was dependent on these kinship bonds with Musqueam and other hən̓q̓əmin̓əm-speaking peoples of the lower Fraser River.
The Court’s approach to oral history evidence was to accept that uncontradicted oral history evidence was entitled to as much weight as uncontested documentary evidence. When oral history was challenged, the Court gave more weight to oral history that in the Court’s view was corroborated by the written historical record. Ultimately, the Court agreed that the Cowichan Title Lands were the Cowichan Nation’s village, and that the permission of Musqueam and other hən̓q̓əmin̓əm-speaking peoples of the lower Fraser River was not required for resource access.
Determining the proper rights holding group: the Cowichan Nation
The Court found that at the time of contact and Crown assertion of sovereignty, the Cowichan Nation, which comprised 11 local groups, had a distinct collective identity, shared a common way of life, spoke a common dialect of the Hul’qumi’num language, lived together in the same geographic area, and would come together for defence and harvesting purposes. The Court concluded that the 11 local groups were all one prior to the creation of Indian Act bands. The Court found that members of the plaintiffs and Lyackson First Nation are the modern Aboriginal rights holding group, being direct descendants of the historic Cowichan Nation. The Cowichan Nation’s decentralized organization did not deter from their ability to be a rights-bearing collective.
The Court rejected BC’s argument that in the context of an Aboriginal title claim, the historic rights bearing group must have “shared the land in question according to the community’s own internal rules.”1 The Court held that this is not an independent requirement but is a consideration within the requirement to establish that the historic group shared language, customs, traditions and history.
Aboriginal title: Cowichan Title Lands found to be Cowichan Nation village
The judge found that the plaintiffs proved Aboriginal title to a portion of the claim area, including a stretch of submerged lands, finding that they had a permanent seasonal village, occupied exclusively and sufficiently by the Cowichan Nation at the relevant times. The judge found that the Cowichan Nation occupied their village en masse in the summer and maintained periodic presence throughout the year. The presence of permanent wood posts and beam frames were accepted as evidence of permanent and regular presence, and also served to communicate this to other Indigenous groups. These permanent posts and beam frames provided structure to Cowichan houses that would be rebuilt seasonally from boards they brought over by canoe from Vancouver Island. The trial judge inferred that the Cowichan Nation maintained their exclusive occupation in part due to their regional dominance by virtue of their larger relative population to other Indigenous groups and their fearsome reputation affirmed through Cowichan raids on groups located further upriver.
The plaintiffs did not establish Aboriginal title to portions of the claim area that were found to not have been Indian settlement lands. These lands were subject to grants throughout the latter half of the nineteenth century. The Court concluded these grants were compliant with the applicable Crown laws at these times.
Aboriginal rights: an all-species, year-round right to harvest
The Court concluded that the Cowichan have an all-species, year-round Aboriginal right to fish for food on the south arm of the Fraser River, which the court accepted ranged from “the eastern tip of Annacis Island and Lulu Island…and extend[ing] to the mouth of the south arm of the Fraser River…starting at the eastern boundary of subarea 29-9.”2 This right was held to be an all-species right as the court found that the Cowichan Nation had pre-contact practice of fishing whatever was available in the river while they were primarily targeting sockeye runs from June to October. In response to arguments seeking to limit the all-species nature of the right, the Court affirmed that a species did not have to be communally fished en masse to be included in an all-species Aboriginal right to fish.
The Cowichan Nation’s harvesting on the south arm was not found to be conditional on permission and Coast Salish laws of kinship and reciprocity. The judge did accept that the plaintiffs’ ancestors would announce their arrival to Musqueam and would fish in accordance with a form of agreement and understanding. The judge was not persuaded that modern protocol agreements–requests for permission to access parts of the Fraser River within Musqueam territory for harvesting–between the plaintiff bands and Musqueam were the contemporary operation of the Coast Salish law that would have applied to the Cowichan’s access to the claim area.
Other important issues and novel legal developments
Submerged lands can be subject to Aboriginal title in British Columbia
The Court endorsed Chippewas of Nawash Unceded First Nation v Canada (Attorney General), 2023 ONCA 565, and accepted that the submerged lands that were once shoreline and beach in front of the Cowichan Title Lands would have been used and occupied for harvesting purposes and were therefore entitled to be recognized as part of Cowichan’s title lands. Aboriginal title to submerged lands must be balanced against the public’s right to travel on navigable waters. The submerged lands subject to Cowichan Aboriginal title negligibly impeded on the public right to navigation and the Court affirmed this public right is not absolute and does not require unimpeded access to all of the body of water.
Aboriginal title and fee simple can coexist and are subject to the Sparrow analysis
The Court addressed an unsettled question in Canadian law: if and how overlapping Aboriginal title and fee simple interests can be reconciled. The Court held that neither Aboriginal title nor fee simple title is absolute; Aboriginal title burdens land upon which fee simple estates have been granted; and the exercise or application of Aboriginal title and fee simple ownership rights requires reconciliation.
The Court rejected various arguments that Aboriginal title was extinguished or displaced through the transfer of grants of fee simple interests. The Court found that Aboriginal title and fee simple interests can coexist, but this coexistence requires reconciliation as one necessarily must yield to the other; both modalities of land ownership grant many of the same land-based rights, like the right to control, use, and to benefit. The Court held that the Sparrow infringement and justification analysis is the appropriate legal test to assess whether the infringements flowing from the granting of fee simple interests to Aboriginal title lands is justifiable at law. This analysis must be undertaken on a case-by-case basis. The reconciliation of Aboriginal title and fee simple where infringements cannot be justified is likely to impact existing interests in land. However, where fee simple interests exist, the Aboriginal title holder must seek remedies to enforce its title, otherwise “title simply exists as recognized title in law.”3
The Court held that in this case the granting of fee simple interests had the effect of alienating the Cowichan from the Cowichan Title Lands and was an unjustified infringement of their Aboriginal title. The Court declared that Canada and Richmond’s fee simple titles and interests in numerous lots are defective and invalid but suspended this declaration for 18-months to allow time to make arrangements. Canada and BC were ordered to negotiate in good faith with the plaintiffs.
Conclusion
This case marks advancements in the law, including with respect to the coexistence of Aboriginal title and fee simple. This decision also demonstrates some of the major complexities and drawbacks of litigating disputes between Indigenous groups over land and resources, and of seeking to demonstrate Indigenous laws in the Canadian legal system. The Indigenous parties to this litigation shared their differing perspective and histories, and the Court ultimately looked to the written record for corroboration to resolve conflicting oral history evidence. The Court remarked on how this decision would fundamentally change the historic relationship between the Cowichan Nation, Musqueam, and Tsawwassen. The case is being appealed.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.
See CanLII for the Reasons for Judgement.
Footnotes
1 Para. 270.
2 Para. 3227; “Subarea 29-9” refers to a Department of Fisheries and Oceans fisheries management area.
3 Para. 2207.