From British Columbia Real Estate Association (BCREA)

Discussion Paper – October 2025

Introduction

British Columbia’s land-title system rests on one of the most powerful social compacts in modern economic life: trust. Buyers, sellers, lenders, governments, and communities rely on a shared belief that registered title is secure, complete, and final. That belief is foundational to property and land transfer, and it is what has fostered a stable and sustainable structure for the real estate market.

Today, that trust is being questioned. Court decisions such as Cowichan Tribes v. Canada (AG) (2025 BCSC 1490) have challenged perceptions about the absolute nature of fee-simple ownership. The Cowichan decision confirmed that Aboriginal title may be declared over lands that include existing fee-simple parcels, clarifying that the Land Title Act’s principle of indefeasibility does not extinguish constitutionally protected Aboriginal title. While the judgment did not invalidate private ownership, it reframed the relationship between Crown-granted title and Indigenous rights, emphasizing the need for reconciliation through negotiation and accommodation rather than assumption of exclusivity.

Meanwhile, new legislation such as Bill 13 – the Land Title and Property Law Amendment Act, 2024 – invites First Nations into direct participation in the Torrens registry.

Key Questions for the Real Estate Sector

Together, these developments raise important questions for regulators, practitioners, and the public:

• • Can confidence in fee-simple title be maintained when overlapping claims of Aboriginal title are recognized by the courts?
• • How does the real estate profession sustain market trust amid uncertainty?
• • What role could organizations like the BC Real Estate Association (BCREA) play in strengthening that trust?

This paper does not seek to resolve questions of reconciliation or the constitutional place of Aboriginal title. Rather, it aims to frame the conversation around trust and confidence, which are the bedrock on which property ownership, investment, and the public’s faith in the Torrens system depend.

Defining the Framework

Aboriginal Title

Aboriginal title is a collective, constitutionally protected interest in land rooted in Indigenous occupation prior to colonization. It carries the right to decide how land is used and to benefit from its uses, subject only to justified Crown infringement (Delgamuukw v. BC, 1997; Tsilhqot’in Nation v. BC, 2014). It is a real interest in land, not merely a right to use, and exists independently of Crown grants or registration.

Fee-Simple Title

Fee-simple ownership is the highest form of estate recognized by common law. It grants the holder broad powers to use, transfer, or encumber the property, limited only by law or by private restrictions. In BC, the fee-simple estate is given force and certainty through the Torrens system, which guarantees that the person registered on title is the legal owner, and that the register itself is conclusive evidence of ownership.

In theory, the two concepts of Aboriginal title and fee-simple title operate on separate planes: one constitutional, the other statutory. In practice, recent jurisprudence suggests they can overlap. Where they do, the tension is not merely legal but existential: Can these two forms of ownership coexist within a single regime built on singular certainty?

Trust as the Operating Currency of the Property System

In The Speed of Trust, Stephen M.R. Covey writes that “trust is the one thing that changes everything.” He argues that where trust is high, “speed goes up and cost goes down.” The inverse is also true: Where trust is low, transactions slow, costs rise, and relationships fracture.

Nowhere is this more evident than in real estate. Each conveyance, mortgage, and subdivision presupposes confidence in the system’s accuracy and impartiality. If that confidence erodes through uncertainty, conflicting claims, or opaque processes, then market efficiency collapses.

Covey’s definition of trust is built on the dual foundations of character and competence, and offers a powerful lens through which to view British Columbia’s land-title ecosystem. The system’s character is expressed through the integrity, transparency, and ethical standards of the institutions and regulated professionals who uphold it, such as the Land Title and Survey Authority, the Land Title Office, lawyers, notaries, and REALTORS®. Its competence is demonstrated through the technical reliability and legal precision of title registration, conveyancing, and dispute-resolution processes. Together, these attributes create the credibility that allows every participant, from first-time homebuyers to institutional lenders, to transact with confidence that the title they see is the truth they can rely on.

For over a century, BC’s Torrens system has embodied both. Its success depends not only on accuracy but on public belief in accuracy, a belief that the registry is the single source of truth. When that belief is shaken, the entire system slows: Lenders re-evaluate risk, developers hesitate, and consumers lose confidence.

The Property Trust Equation

Economist Hernando de Soto, in The Mystery of Capital, observed that what distinguishes successful economies is not simply ownership, but formalized ownership (the ability to record, prove, and transfer rights with certainty). He argued that secure property systems turn “dead capital” (informal, unrecorded holdings) into “live capital” capable of generating credit, investment, and growth.

BC’s Torrens system is precisely such a formalization mechanism. It converts land into capital by ensuring the owner’s right is public, provable, and enforceable. De Soto’s insight also illuminates what is at stake when trust in that system wavers: When ownership becomes uncertain or contestable, capital formation deteriorates, and markets constrict.

Incorporating de Soto’s reasoning into the BC context underscores a key policy principle: Clarity is equity. The more transparent and reliable the system, the more equitable and prosperous it becomes. Conversely, when the boundaries of ownership blur, economic participation can narrow, particularly for those least equipped to navigate complexity.

Bill 13 – Land Title and Property Law Amendment Act, 2024

Bill 13 represents a milestone in the modernization of BC’s property system. By amending the Land Title Act and Property Law Act, it allows First Nations to hold and register fee-simple interests directly in their own names, removing the colonial-era requirement to use corporations, trusts, or proxies.

This reform extends participation within the established system. As Murray Rankin, Minister of Indigenous Relations and Reconciliation, stated, “First Nations will have the ability to purchase and hold fee-simple land directly, just as individuals and corporations have long been able to do.” The First Nations Summit called the legislation “a small but very meaningful step to clear unnecessary and often invisible interference,” and the BC Association of First Nations characterized it as “a vital tool for our continued Nation rebuilding efforts.”

For BCREA, Bill 13 exemplifies how trust and inclusion can reinforce one another. Enabling First Nations to participate fully in the same land-title regime invites shared legitimacy for all users. It demonstrates that modernization need not threaten market confidence as long as reforms are transparent, consultative, and operationally clear.

In parallel with these legislative reforms, the Land Title and Survey Authority is developing the First Nations Land Governance Registry in partnership with the First Nations Land Management Resource Centre and the Lands Advisory Board. This initiative will provide digital infrastructure for First Nations operating under land codes, integrating with the national land-title ecosystem. Together, projects like this and Bill 13 demonstrate that modernization is not about abandoning or defending colonial constructs, but about bridging governance systems and creating transparent, interoperable frameworks that serve all stakeholders.

The Fragility of Trust: When Confidence Falters

The real estate sector understands better than most that confidence is the engine of the market. When it falters, regulation tightens, transaction costs climb, and the pace of economic activity slows. We have to go no further back in history than April 2, 2025, when the United States imposed sweeping tariffs, destabilizing confidence in many markets. The property ecosystem, including brokerages, lawyers, notaries, appraisers, lenders, regulators, and others, depends on a seamless chain of confidence.

In an environment where the public hears that Aboriginal title may coexist with fee-simple ownership, uncertainty can spread quickly through the marketplace. Lenders, insurers and others may begin to reassess risk, buyers may hesitate to proceed, and sellers could encounter reduced liquidity. For licensees and lawyers, shifting due-diligence standards may see practices evolve faster than regulations. In turn, regulators may respond by introducing new compliance and disclosure frameworks, the need for which could be perceived by the consumer as acknowledgement that something is wrong. In this case, these controls must be established to stabilize trust, not unintentionally incite fear, further diminishing trust and destabilizing confidence.

The Role of BCREA: Stewarding Confidence

As the professional voice for REALTORS® in British Columbia, BCREA occupies a unique position between the market, the public, and government. Our role is not to litigate ownership questions but to advocate for systems that preserve certainty, transparency, and confidence for everyone who transacts in real property, while supporting REALTORS®, managing brokers, consumers, and other stakeholders as they navigate the complexities that come with this quickly evolving environment.

Communication and Support form the first pillar of this role. BCREA will work with other stakeholders, such as the BC Financial Services Authority and Real Estate Errors and Omissions Insurance Corporation, to contribute to the development of messaging and guidance that will best inform the decisions of REALTORS® and their clients. There is a tremendous amount of complexity, history, and perspectives associated with every aspect of this expansive issue, which challenges the efforts to provide timely, responsive, and evolving updates, but BCREA will endeavour to do just that. As the case proceeds through potential appeals (a process that could take years), clear and consistent communication from both government and the sector will be crucial to maintaining public confidence in the Torrens system and preventing market uncertainty.

The second pillar is Advocacy and Participation in the Dialogue. BCREA has a duty to ensure that government decisions affecting property ownership promote and instill trust. This means working collaboratively with stakeholders and all levels of government to shape policies that maintain confidence in registered title. Through constructive advocacy, BCREA can amplify the message that certainty in property rights is not at odds with social progress but is the platform on which that progress depends.

Conclusion

The question is not whether the recognition of Aboriginal title or the introduction of new ownership forms will destabilize BC’s property system. The question is whether the stewards of that system can sustain public trust through clarity, communication, and competence.

For BCREA, that means championing the principles that underpin real estate in this province: transparency in title, integrity in practice, and confidence in ownership.

In the coming years, the landscape will continue to shift, and each step toward mutual understanding renews not only the process of reconciliation but also the public trust that underpins our shared prosperity. And if trust remains the measure by which we judge our systems, then both Aboriginal title and fee-simple title can find their rightful place within an ecosystem built on confidence: an ecosystem that honours the past, serves the present, and secures the future of property ownership in British Columbia.