Aboriginal Title, Private Property, and What It Could Mean for BC Homeowners

If you've been following news about Aboriginal title cases in BC, you may have seen recent headlines connecting a New Brunswick court decision to the ongoing Cowichan Tribes case here in BC. Both cases touch on a question that matters to anyone who owns or is buying property in this province: can Aboriginal title and private fee simple ownership coexist on the same land?

Here's a rundown of where things currently stand.

The Cowichan Case (BC)
In August 2025, after more than 500 days at trial, BC Supreme Court Justice Barbara Young ruled that Aboriginal title and private fee simple title can coexist on certain lots in East Richmond, an area once used as a seasonal fishing village by the Cowichan Nation [1], with Aboriginal title described as the "prior, senior right." Importantly, the ruling did not order land to be handed over, but instead directed the BC government to work toward a resolution with the Cowichan Nation through good faith negotiation [2]. This remains the only case in Canada where a court has declared Aboriginal title over land that overlaps with existing privately held fee simple titles [1]. The BC government and other parties, including the federal government, have since applied for the BC Court of Appeal to take up the case, and the matter remains under several appeal applications.

The New Brunswick Case (Wolastoqey Nation)
In a separate case, the Wolastoqey Nation sought Aboriginal title over a large area of New Brunswick, including privately owned industrial land. In a pretrial procedural ruling last December, the New Brunswick Court of Appeal found that Aboriginal title cannot be claimed over private property [1], siding with timber companies over the Wolastoqey Nation [2]. On May 28, 2026, the Supreme Court of Canada declined to hear an appeal of that decision, leaving the New Brunswick ruling in place for now. The full Wolastoqey case has not yet gone to trial [1].

Why People Are Connecting the Two
The Globe and Mail noted that the New Brunswick finding excluding private property from the Wolastoqey's claim stands at odds with the Cowichan decision in BC [1]. A legal publication from Osler Law observed that the Cowichan and Wolastoqey decisions have created divergent jurisprudential approaches to the consequences of successful Aboriginal title claims, and that clarity is needed from higher courts on these questions [3].

Both BC's Attorney General and a property owner involved in the Cowichan case have suggested the Supreme Court of Canada's decision not to hear the New Brunswick appeal could have implications for the Cowichan appeals, given the similarities in the arguments [3]. However, not everyone agrees. A Cowichan Nation representative pushed back on that framing, calling the New Brunswick case "New Brunswick specific" with different facts, and cautioned against drawing conclusions for the Cowichan case from the Supreme Court's refusal to hear it [4].

Where Things Stand
By declining to hear the New Brunswick case, the Supreme Court of Canada left the broader question of whether Aboriginal title can apply to privately held land for another day [1]. Both cases are expected to eventually make their way to Canada's top court, though the Wolastoqey will need to go through a full trial first [1], and the Cowichan case remains under appeal.


What does this mean for property owners and buyers in BC?