Aboriginal title can’t apply to private land, Supreme Court of Canada decides
By Wolfgang Depner, The Canadian Press
British Columbia Attorney General Niki Sharma says she believes the decision “bodes well for our arguments, and the appeals that we are seeking in B.C.”
A Supreme Court of Canada decision upholding that Aboriginal title cannot be declared over private land gives British Columbia an avenue to win a future appeal in the landmark Cowichan Tribes case, says the province’s attorney general.
The high court refused to hear an appeal on Thursday involving Aboriginal title on private land in the case of a New Brunswick First Nation, and Niki Sharma said that is promising for its appeal in the Cowichan case, which has cast doubt on the primacy of private property rights.
“I think it gives us a clear path to an appeal here in B.C., and we are continuing to pursue that legal option. When it’s the same legal issues that we are dealing with here, I think that bodes well for our arguments, and the appeals that we are seeking in B.C.”
A B.C. Supreme Court in August ruled that the Cowichan Tribes has Aboriginal title over land along the Fraser River, that the granting of private titles by government unjustifiably infringed on the nation’s title.
It said Crown and city titles on the site are defective and invalid.
That ruling is in contrast to the ruling in a New Brunswick case, which Canada’s highest court refused to hear, following an appeal by the Wolastoqey First Nation.
The Crown-Indigenous Relations Department said Thursday that the ruling would inform arguments in other cases, including Cowichan, adding that “private property rights are fundamental.”
“would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”
The nation had sought leave to appeal that ruling but it was denied by the Supreme Court of Canada on Thursday.
“Canada takes note of the Supreme Court’s decision not to hear the Wolastoqey case. In the case, the courts found that Aboriginal title could not be declared over privately owned lands. This important New Brunswick Court of Appeal decision will inform arguments in other cases, such as the Cowichan case in British Columbia.”
The spokesperson said the federal government would always protect private property rights.
“As the appeals process for the Cowichan case proceeds, Canada will make all legally viable arguments to protect private property. At the same time, we remain committed to advancing reconciliation and working with Indigenous partners to address claims in a way that respects and upholds their rights and preserves the certainty and stability of private property.”
The federal and B.C. governments and other parties, including the City of Richmond, B.C., are appealing the Cowichan Tribes decision that ruled the First Nation holds Aboriginal title over a parcel of land on the Fraser River, including Crown, city and private property.
No one from the Cowichan Tribes or the nation’s lawyer was immediately available for comment on the high court’s decision.
The judge in the Cowichan case ruled last August that Aboriginal title was a “senior interest” compared with fee-simple title, and that sections of B.C.’s Land Title Act that establish fee-simple title as “indefeasible” do not apply to Aboriginal title.
The Cowichan ruling has led to concerns that it puts private property at risk, although the Cowichan Tribes have said they are not seeking to lay claim to private land.
Montrose Properties, the largest private land owner in the Cowichan title area, was in court this week separately seeking to reopen the case, saying it was unfairly omitted from the original trial.
This report by The Canadian Press was first published May 28, 2026.
Original report by Wolfgang Depner, The Canadian Press
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