September 22, 2025 • 47 mins
The 2025 Cowichan Tribes v. Canada ruling is shaking Metro Vancouver. Chief Aaron Pete explains its challenge to the Land Title Act, the impact on Aboriginal title, property rights, homeowners and governments, and the path to balancing justice with stability.
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Speaker 1 (00:32):
If there's one thing Canadians love more than hockey,
it's property.
Your house, your condo, yourcabin on the lake.
These aren't just buildings,they're life goals, and our
economy, our politics, even oursense of self-worth are wrapped
up in the belief that ownershipequals security.
In fact, canada's entireretirement system basically says
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don't worry about pensions,just buy a house and pray that
it triples in value.
And for much of the past 50years, that strategy has worked.
So when a court decision comesalong that threatens to
complicate that story, canadiansfreak out.
Which brings us to this OnAugust 7th 2025, the BC Supreme
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Court issued a ruling inCowichan Tribes versus Canada
confirming Aboriginal title overlands in Richmond yes, richmond
, the middle of Metro Vancouver.
This was the first time inCanadian history that a court
recognized Indigenous title inan urban setting that includes
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private property.
Suddenly, canada's sacred cowhomeownership property.
Suddenly, canada's sacred cowhomeownership found itself
standing nose to nose withsomething even older and
awkwardly, more legally seniorAboriginal title.
Now how did we get here?
Well, to understand this, wehave to zoom out, because
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Canadians' relationship withland has changed dramatically in
the past few decades.
In the 1990s, the idea ofstarting a meeting with a land
acknowledgement would haveconfused everyone.
You'd get blank stares andmaybe someone asking sorry, are
you talking about selling me atimeshare?
Back then, canada's officialconversation about Indigenous
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rights was all about treaties.
Official conversation aboutIndigenous rights was all about
treaties, constitutionalrecognition and the aftermath of
the Oka Crisis.
In 1996, the Royal Commission onAboriginal Peoples, a massive
4,000-page report, warned thatCanada's relationship with First
Nations was broken andunsustainable.
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It called for recognizingIndigenous governments,
respecting land rights andcreating new treaties.
But land acknowledgements werenowhere to be found.
Fast track forward to 2015,when the Truth and
Reconciliation Commissiondropped its final report and the
94 calls to action.
That report didn't mandateacknowledgements either, but it
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created the cultural space forthem and almost overnight, land
acknowledgements spreadeverywhere in schools, in
universities, in city councils,in governments, in email
signatures.
Suddenly, canadians were callingthemselves settlers or guests
and starting speeches with I'dlike to acknowledge I'm on the
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unceded ancestral territory ofwhatever people they were near.
To some people, this was apowerful step, a small but
meaningful act of truth.
For others, it was a slipperyslope into existential dread.
Add in protest slogans likeland back and commentators like
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Candace Malcolm warning thathomeowners are about to lose
everything.
And suddenly a simple landacknowledgement sounds like a
prelude to an eviction notice.
Which brings us back to theCowichan decision, because this
case takes all those anxieties,the guilt, the gestures, the
fear, the property obsession andputs them all on trial
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literally.
And here's why it matters Forthe first time a Canadian court
said Aboriginal title doesn'tvanish just because land was
handed out in fee, simple.
The court even declared thatsome crown grants, including to
the city of Richmond, werelegally invalid.
And it raises the question ifAboriginal title can exist in
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Richmond, where else could itexist?
Vancouver, victoria or yourbackyard?
So today we're going to breakthis down the history of
Aboriginal people in Canada andtitle.
What the Cowichan decisionactually said beyond the
headlines, the politics fromIndigenous nations who see
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justice to Conservatives who seechaos, to governments who are
stuck in the middle, and,finally, what I think this means
for Canada's future and themost likely outcomes.
Because, make no mistake, thisisn't just about Richmond or
even about the Cowichan people.
It's about Canada and Canadiansbeing forced to confront a
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question it has dodged for 150years what happens when the
foundations of property systemare built on land that was never
yours to give away?
History of First Nations titlein Canada.
So before we get into theCowichan case, let's talk about
how we got here, becauseAboriginal title in Canada isn't
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new.
It's been around longer thanCanada itself.
It's been around longer thanCanada itself.
In fact.
The Crown has beenacknowledging Indigenous land
rights since well before Canadaeven existed.
The Royal Proclamation of 1763is where we'll start.
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The Royal Proclamation of 1763,issued by King George III after
Britain won the Seven Years'War.
It basically saidcongratulations, britain owns
North America now, except forthe parts that belong to
Indigenous people.
The proclamation made it clearIndigenous nations had land
rights and only the crown couldpurchase those lands through
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treaties.
It was a way to stop settlersfrom running around with shovels
and flags claiming whateverland they wanted.
In other words, the veryfoundation of Canada is an
admission that Indigenous titleexists.
And that proclamation wasn'tjust symbolic.
Canadian courts, including theSupreme Court in Calder 1973 and
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Delcamus in 1997, have cited itas proof that Aboriginal title
didn't vanish just becauseEuropeans showed up with canons
and confidence.
But here's the kicker While theRoyal Proclamation recognized
Indigenous title in theory,colonial governments spent the
next century doing the exactopposite in practice.
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Enter the reserve system.
Instead of negotiating fairland agreements across the board
, governments began carving outtiny parcels of land and called
them reserves.
Think of them as Canada'soriginal designated parking
spots for Indigenous peoples.
Canada's original designatedparking spots for Indigenous
peoples, except where they werealways far smaller than promised
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, often placed in the poorestsoil and came with endless
restrictions.
And here's the crucial partReserves aren't owned by
Indigenous nations.
They're federal lands held intrust by the Crown under the
Indian Act of 1876.
Communities can live on them,farm them, even lease them out,
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but they can't sell them, expandthem without Ottawa's approval
or exercise the same authority amunicipality has.
In legal terms, indigenouspeople became tenants on their
own land, while Ottawa playedthe landlord.
This legal framework wasreinforced in the Constitution
itself.
Section 91-24 of the BritishNorth America Act 1867, gave
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Ottawa jurisdiction over quoteIndians and the lands reserved
for the Indians.
The system wasn't an accident.
It was deliberate.
But here's a twist manyCanadians don't know.
The idea of reserves didn'tbegin until 1867.
It started as early as 1817when Lord Selkirk, or also known
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as Thomas Douglas, had setaside what were called
anticipatory reserves for FirstNations in the Red River region.
He believed, at leastrhetorically, that Indigenous
people should have some landprotected for them as settlers
arrived.
Selkirk even wrote thatIndigenous nations had an
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incontrovertible right to thesoil.
Yet even when the supposedlyprogressive vision assumed,
indigenous people wouldeventually assimilate into a
settler society.
Reserves were never designedfor permanence, they were
designed as holding zones.
In British Columbia the colony'sfirst governor, james Douglas,
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initially recognized Indigenousland rights more explicitly than
later officials.
According to the CanadianEncyclopedia, douglas stated in
1850 that the Hudson's BayCompany had no wish to interfere
with the rights of the nativesto the lands they occupy.
Under his leadership, theDouglas Treaties on Vancouver
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Island promised Indigenoussignatories that they could
retain their village sites andenclosed fields.
But even Douglas's policy waslimited On the mainland.
As settlement accelerated, heshifted from negotiating
treaties to simply designatingreserves.
His vision was paternalistic.
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Reserves would confineIndigenous peoples to farming
plots under colonial oversight.
As historian Cole Harris notesin Making Native Space Douglas'
reserves were small and intendedto facilitate assimilation
rather than safeguardsovereignty.
And then came along JosephTrutch, bc's Commissioner of
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Lands and Works.
In the 1860s.
Trutch openly referred toIndigenous people as savages and
claimed they had no realconcept of land ownership.
In an 1864 letter he wrote theIndians have no rights to the
lands they claim, nor are theyof any actual value or utility
to them?
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And this was quoted by Harrisin Making Native Spaces and the
Dictionary of Canadian Biographyentry on Trutch.
He then proceeded to slashreserve sizes across BC,
sometimes by more than 90%.
Imagine your nation had 2,000acres.
Trutch arrives with a pen and amap and says you actually get
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200.
You're welcome.
That was BC's land policy andit was baked into Confederation.
The thinking behind Trutch'sdownsizing was chilling.
In its logic, he believed FirstNations would eventually
disappear, whether throughassimilation or extinction.
Why preserve thousands of acresfor people who, in his eyes,
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were destined to vanish?
So while the Royal Proclamationof 1763 recognized Indigenous
land rights, the reserve system,and especially Trutch's cuts,
systematically dispossessedIndigenous peoples of over 95%
of their territories in BritishColumbia.
Recognition on paper, but eraserin practice.
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This leads us into the Section35 of the Constitution Act of
1982.
Let's fast forward there.
When Canada patriated itsconstitution, section 35 of the
new Constitution Act declaredthe existing aboriginal and
treaty rights of the aboriginalpeoples of Canada are hereby
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affirmed and recognized.
That sounded powerful, aconstitutional guarantee.
Except and this is peak Canada,nobody defined what those
rights actually were.
It was like sayingcongratulations, you have rights
, but we'll get back to you onthe details.
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But Section 35 didn't appear outof thin air.
It was fought for when PierreTrudeau's government set out to
patriate the Constitution fromBritain in the late 1970s.
The original drafts containedno mention of Indigenous people
at all.
As historian Brian Swartz notes, aboriginal rights were, at the
best, an afterthought.
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It was only after sustainedIndigenous advocacy that Section
35 was inserted.
In 1980, hundreds of Indigenousleaders and community members
boarded what became known as theConstitution Express, a train
organized by the Union of BCIndian Chiefs to travel from
Vancouver all the way to Ottawa.
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They were protesting theirexclusion from the new
constitutional framework.
George Manuel, then presidentof the union, described it as a
train to Ottawa to demand thatour rights not be left on the
platform.
The movement drew national andinternational attention, putting
real pressure on Trudeau'sgovernment, and the lobbying
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worked.
After rounds of constitutionalconferences and political
maneuvering, indigenous leaderssecured the inclusion of Section
35.
But even then the language wasvague.
It recognized and affirmedAboriginal and treaty rights,
but without defining what thoserights were or how they were to
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be enforced.
That's why for the last 40years Indigenous nations have
had to prove their rights caseby case in courts.
The Calder decision in 1973cracked the door open,
recognizing for the first timeat the Supreme Court that
Aboriginal title exists.
At common law, delcamus in 1997, defined what title means that
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it is not just right to the landitself, it's not just a
traditional uses case Until ShelColton 2014,.
It was a historic decision thefirst time a Canadian court
issued a declaration ofAboriginal title over a specific
territory, each case chiselingout what Section 35 was supposed
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to guarantee in the first place.
And that's why cases likeCowichan today fit squarely in
this lineage, because Section 35promised recognition.
But the content of those rightsis still being hammered out
through costly litigation,nation by nation and generation
by generation.
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Now, treaties Canada really hastwo main categories.
The first are historic treaties.
These were agreements like theRobinson Treaties of 1850 in
Ontario, and later the numberedtreaties from 1 to 11, signed
between 1871 and 1921, coveringmost of the prairies, northern
Ontario, parts of Quebec and theNorthwest Territories.
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On the one hand, these treatieswere Canada's way of providing
legal certainty.
They opened land for settlement, railways and resource
development, while making formalcommitments to First Nations
reserves, annual payments andguarantees of hunting, fishing
and trapping rights as long asthe sun shines and the river
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flow To governments.
This was the compromiseIndigenous nations kept specific
rights, while Canada securedland for growth.
On the other hand, many FirstNations leaders later said they
understood treaties differently,as agreements to share the land
, not permanently surrender it,and in practice, the crown often
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fell short of its own promises.
Reserves were smaller thanexpected, rations sometimes
never arrived and resourcerights were restricted the
moment settlers or companieswanted more access.
So while Canada saw thesetreaties as final settlements,
many Indigenous communitiesviewed them as bargains that
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were broken.
Then come in modern treaties,starting in the 1970s.
After court cases like Calderconfirmed Aboriginal title still
existed, ottawa and provincesbegan negotiating new
comprehensive claims withnations that never signed
historic treaties.
These modern treaties like theNishka's Final Agreement or the
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Tawassin Treaty in 2009, weredesigned to bring clarity.
They provided cash settlements,parcels of land in fee, simple
and recognition ofself-government powers.
From a government perspective,modern treaties are successes.
They provide stability forinvestment, legal certainty for
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land ownership and a frameworkfor Indigenous self-governance.
But from the perspective ofsome Indigenous critics, they
still involve giving up broadtitle claims in exchange for a
fraction of traditionalterritories, and here's where BC
stands out, apart from thesmall Douglas treaties on
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Vancouver Island in the 1850sand Treaty 8 in the Northeast.
The rest of the province enteredConfederation in 1871 without
treaties.
To the government of the day,this was pragmatic.
Bc wanted land open forsettlers without the lengthy
negotiations Ottawa had run intoon the prairies.
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But the legal consequence isthat much of BC is now described
as unceded territory, land thatwas never formally surrendered.
That absence of treaties iswhat made the Haida's Nation's
2024 Rising Tide Title LandsAgreement so significant.
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For the first time in Canadianhistory, a provincial government
formally recognized Aboriginaltitle to an entire territory all
of Haida Gwaii.
Why?
Without forcing the nation toprove it through lengthy and
decades worth of litigation.
The agreement preservesexisting private property rights
, but it establishes atransition period in which Haida
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and provincial laws will bereconciled and land management
decisions will be shared.
For the Haida, this wasn't asurrender or extinguishment of
title.
It was land back throughgovernance, a practical
recognition that theirjurisdiction never went away.
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So, depending on yourperspective, you get two very
different takeaways.
From the government's point ofview, treaties, historic or
modern, are the way to resolveuncertainty and move forward.
From many Indigenous nations'point of view, the absence of
treaties in BC means theirrights to land were never dealt
with at all and agreements likeRise on land that was never
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formally ceded.
Eventually a court is going tonotice, which is exactly what
happened in Cowichan Tribes vsCanada.
Finally, undrip the UnitedNations Declaration on the
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Rights of Indigenous Peoples,adopted by the UN General
Assembly in 2007, is a relevantplace to also discuss.
Now you know, canada'soriginally voted against it,
standing shoulder to shoulderwith the US, australia and New
Zealand, basically the colonialsettler states club.
Why?
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Because UNDRIP scared the hellout of governments.
It recognized that Indigenouspeoples have the right to
self-determination and,crucially, the right to their
lands, territories and resources.
Crucially, the right to theirlands, territories and resources
.
One of its central principlesis free, prior and informed
consent, meaning you can't justbuild pipelines, mines or
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subdivisions on Indigenous landwithout meaningful agreement.
And, let's be honest, canada'sentire economy since
Confederation has been built onexactly that.
So, of course, on ottawa,panicked.
If you admit indigenous peopleshave a right to the land, then
suddenly the question becomeswhat about all the land already
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taken, sold and developed?
That's not just a politicalheadache, that's an existential
legal migraine.
But international pressuremounted and in 2016, canada
officially endorsed UNDRIP.
Then, in 2021, british Columbiawent even further and passed
the Declaration on the Rights ofIndigenous Peoples Act, also
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known as DRIPA, committing theprovince to bring its laws into
alignment with UNDRIP.
Why does that matter for title?
Because UNDRIP isn't just aboutconsultation, it's about
recognition.
Article 26 of UNDRIP saysIndigenous peoples have the
right to the lands, territoriesand resources which they have
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traditionally owned, occupied orotherwise used or acquired.
That is aboriginal title, wordfor word.
So when BC says it will alignits laws with UNDRIP, it's
basically acknowledgingindigenous people still have
rights to land, even in areasCanada has long pretended were
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settled, and courts like inCowichan are now putting legal
teeth into that principle.
In short, undrip closes the gapbetween lofty promises and hard
law.
It forces governments to stopsteamrolling indigenous nations
with the old colonial assumptionwe already own this and you're
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just lucky we let you live there.
Instead, undrip reframes theconversation around this to say
this was always yours and now weactually have to deal with the
reality.
That's why UNDRIP ties directlyinto Aboriginal title.
It takes what Indigenousleaders have been arguing since
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the Royal Proclamation the titleexists until it's properly
dealt with and puts it on theworld stage as an international
human right and that makes itharder and harder for
governments or even courts topretend otherwise.
Bringing it all back toCowichan.
Because when the courtrecognized the title enrichment,
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it wasn't to Cowichan.
Because when the courtrecognized title enrichment, it
wasn't some radical newinvention.
It was the logical culminationof centuries of promises and law
, from the Royal Proclamation toJoseph Trutch's land cuts, to
Section 35, to UNDRIP, allpointing to the same reality
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Aboriginal title exists.
It is real and Canada has beentrying and failing to wiggle out
of that truth for 150 years.
So what was the Cowichandecision?
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On August 7th 2025, the BCSupreme Court released its
ruling in Cowichan Tribes vCanada.
The case had been in the courtsfor more than a decade, with
over 500 trial days the longestin Canadian history.
At its core, cowichan Tribesclaimed aboriginal title to
roughly 1,846 acres of landalong the south arm of the
Fraser River in Richmond land.
They called Deluctinus, ahistoric village and fishing
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site.
The court found yes, cowichanproved Aboriginal title to part
of that area, includingsubmerged riverbeds.
Yes, they proved an Aboriginalright to fish in the south arm
of the Fraser River protectedunder Section 35 of the
Constitution.
And no, bc never had theauthority to extinguish that
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title by granting fee-simpleownership to settlers or
municipalities.
The court even declared thatCanada and the City of
Richmond's current fee-simpletitles were invalid, though it
suspended that declaration for18 months to allow for
negotiations.
What does that mean?
This decision is historicbecause it's the first time
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Aboriginal title has beenconfirmed in an urban area where
there are existing privateproperty owners.
Previous cases, like Delgamu in1997 and Tishel Colton in 2014,
dealt with more remote or rurallands.
Courts had carefully avoidedruling on private lands.
Here the court said plainlyAboriginal title can exist
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alongside fee-simple ownershipand when the two clash, it's not
about extinguishing one or theother, but reconciling them.
That's a major shift because itsuggests that the Torrens land
system the Torrens land titlesystem the backbone of certainty
for Canadian real estate is notabsolute when it comes up
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against Aboriginal title.
Title certificates that wereonce thought ironclad may not be
In practice.
This doesn't mean homeownersare being evicted, but it does
mean the province and Canadahave a constitutional duty to
negotiate with Cowichan tribesand potentially adjust how land
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enrichment is managed, developedor compensated.
It also signals somethingbigger If Aboriginal title can
exist in Richmond, it couldexist in Vancouver, victoria,
any city in BC where no treatieswere signed.
So first we'll start withGowlings WLG.
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In their post-decision memobluntly titled Aboriginal Title
in Metro Vancouver a lot ofunfinished business in this
province.
They didn't sugarcoat it.
The Cowichan decision confirmsAboriginal title in an urban
area and highlights thepotential for uncertainty
regarding fee simple interests.
It emphasizes the fact thatthere is a lot of unfinished
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business in this province.
That's law firm language, forthe foundation of BC's land
title system just cracked.
The ruling directly challengesthe principle of indefeasibility
in the land title act, theguarantee that once your name is
on a deed your ownership isfinal.
For decades that's been treatedas rock solid.
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The ruling suggests it's not asabsolute as we thought.
Then there's miller tidderly.
Their take is less about panicand more about responsibility.
They argue the ruling goesbeyond recognizing title.
It actually imposes a fiduciaryduty on BC to reconcile
Aboriginal title with existingfee-simple property.
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To quote them, british Columbianow owes a fiduciary obligation
to the Cowichan Nation inrespect of their Aboriginal
title lands, which include theprivate fee simple lands.
In other words, governmentscan't sit back and wait for the
next lawsuit.
They now have a constitutionalduty to get proactive, to
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negotiate, to reconcile and totake Aboriginal title seriously.
But why do these perspectivesmatter?
So two leading legal voices,two very different tones?
Gowlings is sounding alarmbells about uncertainty and
miller, titterly, is pointing toaccountability and
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responsibility.
Together they capture thecrossroads we're at.
On the one hand, the Cowichandecision unsettles the bedrock
of BC's property system,creating fear for homeowners who
had thought their titles wereironclad.
On the other, it reframesreconciliation, not as endless
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litigation but as an ongoingduty, a responsibility the Crown
can't deny any longer.
This is why the Cowichan rulingis so divisive.
It's not just a legaltechnicality.
It forces Canadians to wrestlewith two truths at the same time
.
One, the Aboriginal title isconstitutionally real and that
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Canadians still need certaintyin their own property system.
And if we don't deal with thosetruths honestly, fear will fill
the void.
And fear, as history keepsshowing us, rarely leads to good
decisions.
So what are its morecontroversial aspects?
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This is where the fears, hopesand politics collide.
For Indigenous peoples, theruling is validation.
It proves what they've beensaying for over 150 years their
land rights were neverextinguished, not even the heart
of Metro Vancouver.
It's a chance for justice,recognition and meaningful
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negotiations about land andresources.
For governments it's a headachethe certainty of BC's land
title system is now in question.
If upheld on appeal, the rulingcould force governments to
negotiate not just in Richmondbut across the province,
destabilizing assumptions thatunderpinned everything from
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infrastructure projects toproperty markets.
For private land owners it'sanxiety-inducing, even though
the court said private homesaren't being stripped away.
The very idea that Aboriginaltitle can overlap with fee
simple ownership raises fearsabout property values, mortgages
and future development.
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Commentators like candacemilcom have leaned hard into
this fear, warning canadiansthat decisions like cowichan are
a slippery slope toward losingtheir backyards for
reconciliation as a.
This is a real stress test.
The court itself admitted thiscreates unfinished business that
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must be dealt with politically,not just legally.
That means negotiation,compromise and recognition,
things Canada has historicallyavoided in favor of top-down
control, and that's where KelSalim's response matters.
In his piece the Truth Aboutthe Cowichan Title Decision, he
points out that the Cowichannever asked for private homes.
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Their focus was on land stillheld by governments and public
authorities For private property.
The ruling is about negotiation,not about dispossession.
Kelsum's warning is clear.
The panic you hear in someheadlines is fear through
confusion.
The truth is much less dramaticand much more important.
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Aboriginal title is aconstitutional reality and the
Cowichan ruling shows it can bereconciled with existing
property rights throughnegotiation.
So the big picture is Cowichan athreat or an opportunity?
Well, critics see it asdestabilization of property
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rights.
Supporters see it as longoverdue justice.
The court frames it asreconciliation.
The Aboriginal title is real,private property is real and the
Crown has 18 months to figureout how they coexist.
In short, cowichan iscontroversial because it forces
Canada to confront the one issueit has dodged for 150 years,
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which is what happens when yourproperty system sits on the land
that was never yours, to giveaway Politics.
So we've covered the history,the law and what the Cowichan
decision actually means.
But, as with all big rulings,the real battle isn't just in
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the courts, it's in politics.
And oh boy, does this one bringout the divisions.
So what does the left think?
On the political left, thereaction has been mostly
celebratory.
For progressives, this decisionis proof that reconciliation
isn't just a buzzword.
It's not just landacknowledgements before hockey
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games or orange shirts once ayear.
It's the legal system sayingyes, title is real and yes, it
applies, even in the heart ofmetro vancouver.
For the left, couching is whatreconciliation looks like when
you stop being symbolic andstart being serious.
And they're not wrong.
The ruling gives weight tosomething Indigenous people have
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been saying for generationsthis land was never surrendered
and it is unceded.
But the left also tends togloss over the practical side.
They talk about justice but notabout how messy, expensive and
complicated reconciliation inurban real estate actually is.
It's one thing to say land back, it's another to work out who
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pays when a condo developer inRichmond suddenly finds
themselves negotiating with boththe city and Cowichan tribes,
which is very complicated.
So what do First Nations think?
For First Nations this decisionis deeply validating.
For the Cowichan Alliance it'sa recognition of a broken
promise in the 1850s whenTlucnes was sold out from under
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them.
For Indigenous nations acrossBC it's precedent.
It proves Aboriginal titleisn't limited to remote forests
or mountains.
It can exist in cities, portsand suburbs.
That said, many Indigenousleaders know the fight isn't
over.
The province has already saidit will appeal.
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Negotiations will be slow andgovernments have a long track
record of dragging their feet.
But symbolically, cowichanshifts the ground.
The courts are backing whatFirst Nations have been saying
for 150 years the land questionis unfinished business.
What does the BC governmentthink?
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That brings us to theprovincial government, caught in
the middle.
Attorney General Nikki Sharmaresponded quickly, saying BC
would appeal and seek a stay.
She warned this ruling couldhave significant unintended
consequences for fee-simpleprivate property rights in BC
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that must be reconsidered by ahigher court.
In other words, this is too bigfor one trial judge.
We need clarity from the Courtof Appeal, maybe even the
Supreme Court of Canada.
Sharma acknowledged theruling's importance but framed
it as leaving lots of questionsabout how Aboriginal title
interacts with the BC landstitle system questions about how
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Aboriginal title interacts withthe BC lands title system.
From Victoria's perspective, theruling isn't just a moral or
legal issue.
It's a potential destabilizerof the entire real estate system
, and in a province wherehousing affordability is already
a political wildfire, that's nosmall thing.
What do conservatives think Now?
Conservatives and I'm paintinga broad strokes here tend to see
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this as a nightmare scenarioFor them.
This ruling threatens thecertainty of private property,
the backbone of capitalism,mortgages and yes, backyard
barbecues.
For many on the right land,acknowledgements are already a
bridge too far, a kind of ritualguilt they resent being asked
to perform.
(36:37):
So when a court ruling seems tomove from symbolic
acknowledgement to actual legalrecognition.
The fear is what's next?
Are they taking my house?
And this fear isn't just abouteconomics, it's cultural.
Land acknowledgements anddecisions like Cowichan make
some conservatives feel likestrangers in their own country,
(37:00):
like they're being told youdon't really belong here.
Conservative commentators haveleaned heavily into that fear,
framing Cowichan as a slipperyslope.
The narrative is simple Todayit's Richmond, tomorrow it's
your backyard.
It's a powerful line because ittaps into that deep anxiety
about security and ownership.
(37:20):
But here's the problem.
It's not what the court said.
The court was explicit Nobody'sevicting homeowners.
The ruling is about negotiatingwith governments over public
lands and reconciling themoverlapping rights, as Kelsalom
pointed out in his article.
The truth is about Aboriginaltitle is about coexistence.
(37:43):
It doesn't rip up propertydeeds or evict homeowners.
It sets out a framework wheregovernments must negotiate in
good faith.
So conservative commentary maywork as politics, but it doesn't
reflect the law.
It creates fear but it doesn'tdescribe the ruling.
So what's the bigger picture?
(38:05):
This is the political landscape.
The left sees progress, firstNations see justice, the BC
government sees uncertainty andrisk, conservatives see danger
and commentators see anopportunity to inflame anxieties
.
(38:27):
Messy, imperfect, negotiatedreconciliation.
And if we're being honest,that's the only path forward,
because Canada can't keep sayingunceded territory in speeches
while pretending it doesn'tmatter in practice.
Cowichan forces the country tolive up to its own words.
(38:48):
Here's where I want to step outof the courtroom analysis and
speak personally.
I've sat through countlessevents where land
acknowledgements are readsometimes with sincerity and, to
be honest, sometimes withscript.
I think we've reached a pointwhere they're said too often and
risk becoming a lip service.
(39:09):
I don't believe anyone shouldbe forced or pressured to say
words.
I don't believe anyone shouldbe forced or pressured to say
words.
They don't believe A landacknowledgement that comes from
compulsion isn't reconciliation,it's theater.
It should be optional andheartfelt, not mandatory and
hollow.
And that connects to theCowichan decision.
Legally this ruling is historic.
(39:31):
Politically it's a challengebecause it doesn't just live in
the law books, it lands inpeople's living rooms.
For homeowners alreadystruggling with the fear they'll
never own a home in Canada, theidea the Aboriginal title might
overlap with private propertyrights sounds terrifying.
(39:51):
Fear makes people irrational.
Fear is powerful.
Fear makes people say thingsand vote for things they might
later regret.
That's the danger.
This ruling, while a legalvictory for First Nations, could
substantiate the idea thatCanadians are settlers or
unwelcome guests.
(40:12):
That kind of framing risksturning reconciliation into an
us versus them narrative FirstNations on one side, ordinary
Canadians on the other.
That doesn't build bridges, itbuilds divides.
As a First Nations chief, I'mglad we're moving beyond
rhetoric and beyond empty landacknowledgements.
(40:35):
Case law like Cowichan helpsdefine the real legal
relationship between the Crownand Indigenous nations.
That matters.
But as a Canadian, I don't wantto see our communities torn
apart through this process.
I hear the argument that we areall Canadians and I believe
(40:56):
there's truth to that.
Yet decisions like this cancreate distance, and here's the
clarified metaphor If thatdistance isn't filled with
honest dialogue, it will befilled with misinformation and
fear.
And once fear takes over, it'slike dropping chum in the water
Suddenly everyone's swimming inshark territory.
(41:18):
This case will be appealed.
Hopefully the higher courtswill give more clarity.
But legal clarity is not enough.
If First Nation leaders don'tstep forward to explain what
this means, not just for us butfor everyone, then other voices
will define it for us and thosevoices will not build bridges.
(41:41):
We need to hold two truths atonce.
One the Aboriginal title existsand that it matters exists and
that it matters.
And two Canada only works ifeveryone, indigenous and
non-Indigenous, feels like theybelong here together.
(42:04):
If we lose sight of eithertruth, reconciliation collapses
into either empty symbolism orbitter division.
Conclusion the Cowichandecision doesn't just test the
limits of Canadian law.
It tests the limits of ourability to live together.
At the beginning, we talkedabout Canada's obsession with
property houses, condos, cabins.
They aren't just assets,they're our national security.
(42:27):
Blanket Owning a home issupposed to mean safety,
stability.
Blanket Owning a home issupposed to mean safety,
stability and dignity.
And that's why this ruling hitso hard.
Because for the first time,canada's sacred cow, the deed in
your hand, came face to facewith something older, deeper and
legally senior Aboriginal title.
(42:49):
And here's the thing Aboriginaltitle is real.
It didn't vanish when citiesrose, when treaties failed or
when crown grants tried to buryit in paperwork.
For 150 years, indigenouspeoples carried that truth, and
now the courts have acknowledgedit.
But Canadians also live anothertruth we need stability, and
(43:11):
right now that stability isfragile.
Inflation, though slowing to1.7% year over year, still hurts
when rent is up 5.1% andgroceries up 3.4%.
Trump's tariffs have alreadyshrunk Canada's GDP by 1.6%,
rattling exports and investment.
(43:32):
Add shifting geopolitics and ashaky housing market and
Canadians already feel liketheir footing is a house of
cards in a gale.
Now layer the Cowichan rulingon top.
For homeowners living on afinancial knife's edge, the idea
that private property mightoverlap with Aboriginal title
(43:53):
sounds less like history andmore like instability.
Fear is a powerful force andfear doesn't build bridges, it
digs trenches.
That's the risk here.
A legal victory for FirstNations could, if poorly
explained, reinforce a narrativethat Canadians are just
settlers unwelcome in their owncountry.
(44:15):
That story turns reconciliationinto an us-versus-them
mentality.
It divides the very people it'smeant to bring together.
As a chief, I welcome the legalprogress.
Words alone are not enough.
Law must affirm whatacknowledgement began.
But as a Canadian, I also worry.
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If Indigenous leaders don'tstep up to explain what this
means, silence will be filledwith fear, misinformation and
resentment, and once that waterfills.
And once that water fills, it'sno longer safe to swim.
Yes, this case will be appealed.
The courts may clarify the law,but clarity in law is not unity
(45:00):
in a society.
Unity requires conversation,engagement and trust.
We need to hold two truths atonce.
Aboriginal title exists and itdemands recognition.
But Canada only works ifeveryone, indigenous and
non-Indigenous, feel that theybelong here Lose either truth
(45:22):
and reconciliation collapsesinto hollow gestures on one side
or bitterness on the other.
Because, at the end of the day,reconciliation won't be decided
by judges in robes orpoliticians with microphones.
It will be decided in classrooms, in workplaces, in city halls
and at kitchen tables.
It will depend on whether welet fear define us or whether we
(45:46):
build trust in its place.
It will be decided by whetherwe see one another as
adversaries locked in a zero-sumfight over land and history, or
as neighbours who share thesame home.
And that home is not just soiland property lines.
It is the communities we'vebuilt, the rivers and mountains
(46:06):
we depend on and the fragilesense of belonging that makes
Canada possible at all.
If we approach each other asadversaries, reconciliation
collapses into walls andresentment.
If we approach each other asneighbors, reconciliation
becomes the difficult butnecessary work of sharing space,
(46:28):
sharing responsibility andsharing a future.
That is the challenge of theCowichan decision to prove that
justice for First Nations andstability for Canadians are not
opposites but two sides of thesame promise.
The only question now iswhether we have the courage, the
(46:50):
humility and the patience tolive up to that promise together
.
If there's one thing Canadians love more than hockey,
it's property.
Your house, your condo, yourcabin on the lake.
These aren't just buildings,they're life goals, and our
economy, our politics, even oursense of self-worth are wrapped
up in the belief that ownershipequals security.
In fact, canada's entireretirement system basically says
(00:57):
don't worry about pensions,just buy a house and pray that
it triples in value.
And for much of the past 50years, that strategy has worked.
So when a court decision comesalong that threatens to
complicate that story, canadiansfreak out.
Which brings us to this OnAugust 7th 2025, the BC Supreme
(01:19):
Court issued a ruling inCowichan Tribes versus Canada
confirming Aboriginal title overlands in Richmond yes, richmond
, the middle of Metro Vancouver.
This was the first time inCanadian history that a court
recognized Indigenous title inan urban setting that includes
(01:39):
private property.
Suddenly, canada's sacred cowhomeownership property.
Suddenly, canada's sacred cowhomeownership found itself
standing nose to nose withsomething even older and
awkwardly, more legally seniorAboriginal title.
Now how did we get here?
Well, to understand this, wehave to zoom out, because
(01:59):
Canadians' relationship withland has changed dramatically in
the past few decades.
In the 1990s, the idea ofstarting a meeting with a land
acknowledgement would haveconfused everyone.
You'd get blank stares andmaybe someone asking sorry, are
you talking about selling me atimeshare?
Back then, canada's officialconversation about Indigenous
(02:22):
rights was all about treaties.
Official conversation aboutIndigenous rights was all about
treaties, constitutionalrecognition and the aftermath of
the Oka Crisis.
In 1996, the Royal Commission onAboriginal Peoples, a massive
4,000-page report, warned thatCanada's relationship with First
Nations was broken andunsustainable.
(02:42):
It called for recognizingIndigenous governments,
respecting land rights andcreating new treaties.
But land acknowledgements werenowhere to be found.
Fast track forward to 2015,when the Truth and
Reconciliation Commissiondropped its final report and the
94 calls to action.
That report didn't mandateacknowledgements either, but it
(03:05):
created the cultural space forthem and almost overnight, land
acknowledgements spreadeverywhere in schools, in
universities, in city councils,in governments, in email
signatures.
Suddenly, canadians were callingthemselves settlers or guests
and starting speeches with I'dlike to acknowledge I'm on the
(03:25):
unceded ancestral territory ofwhatever people they were near.
To some people, this was apowerful step, a small but
meaningful act of truth.
For others, it was a slipperyslope into existential dread.
Add in protest slogans likeland back and commentators like
(03:46):
Candace Malcolm warning thathomeowners are about to lose
everything.
And suddenly a simple landacknowledgement sounds like a
prelude to an eviction notice.
Which brings us back to theCowichan decision, because this
case takes all those anxieties,the guilt, the gestures, the
fear, the property obsession andputs them all on trial
(04:09):
literally.
And here's why it matters Forthe first time a Canadian court
said Aboriginal title doesn'tvanish just because land was
handed out in fee, simple.
The court even declared thatsome crown grants, including to
the city of Richmond, werelegally invalid.
And it raises the question ifAboriginal title can exist in
(04:33):
Richmond, where else could itexist?
Vancouver, victoria or yourbackyard?
So today we're going to breakthis down the history of
Aboriginal people in Canada andtitle.
What the Cowichan decisionactually said beyond the
headlines, the politics fromIndigenous nations who see
(04:55):
justice to Conservatives who seechaos, to governments who are
stuck in the middle, and,finally, what I think this means
for Canada's future and themost likely outcomes.
Because, make no mistake, thisisn't just about Richmond or
even about the Cowichan people.
It's about Canada and Canadiansbeing forced to confront a
(05:15):
question it has dodged for 150years what happens when the
foundations of property systemare built on land that was never
yours to give away?
History of First Nations titlein Canada.
So before we get into theCowichan case, let's talk about
how we got here, becauseAboriginal title in Canada isn't
(05:38):
new.
It's been around longer thanCanada itself.
It's been around longer thanCanada itself.
In fact.
The Crown has beenacknowledging Indigenous land
rights since well before Canadaeven existed.
The Royal Proclamation of 1763is where we'll start.
(05:59):
The Royal Proclamation of 1763,issued by King George III after
Britain won the Seven Years'War.
It basically saidcongratulations, britain owns
North America now, except forthe parts that belong to
Indigenous people.
The proclamation made it clearIndigenous nations had land
rights and only the crown couldpurchase those lands through
(06:21):
treaties.
It was a way to stop settlersfrom running around with shovels
and flags claiming whateverland they wanted.
In other words, the veryfoundation of Canada is an
admission that Indigenous titleexists.
And that proclamation wasn'tjust symbolic.
Canadian courts, including theSupreme Court in Calder 1973 and
(06:45):
Delcamus in 1997, have cited itas proof that Aboriginal title
didn't vanish just becauseEuropeans showed up with canons
and confidence.
But here's the kicker While theRoyal Proclamation recognized
Indigenous title in theory,colonial governments spent the
next century doing the exactopposite in practice.
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Enter the reserve system.
Instead of negotiating fairland agreements across the board
, governments began carving outtiny parcels of land and called
them reserves.
Think of them as Canada'soriginal designated parking
spots for Indigenous peoples.
Canada's original designatedparking spots for Indigenous
peoples, except where they werealways far smaller than promised
(07:29):
, often placed in the poorestsoil and came with endless
restrictions.
And here's the crucial partReserves aren't owned by
Indigenous nations.
They're federal lands held intrust by the Crown under the
Indian Act of 1876.
Communities can live on them,farm them, even lease them out,
(07:55):
but they can't sell them, expandthem without Ottawa's approval
or exercise the same authority amunicipality has.
In legal terms, indigenouspeople became tenants on their
own land, while Ottawa playedthe landlord.
This legal framework wasreinforced in the Constitution
itself.
Section 91-24 of the BritishNorth America Act 1867, gave
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Ottawa jurisdiction over quoteIndians and the lands reserved
for the Indians.
The system wasn't an accident.
It was deliberate.
But here's a twist manyCanadians don't know.
The idea of reserves didn'tbegin until 1867.
It started as early as 1817when Lord Selkirk, or also known
(08:39):
as Thomas Douglas, had setaside what were called
anticipatory reserves for FirstNations in the Red River region.
He believed, at leastrhetorically, that Indigenous
people should have some landprotected for them as settlers
arrived.
Selkirk even wrote thatIndigenous nations had an
(09:01):
incontrovertible right to thesoil.
Yet even when the supposedlyprogressive vision assumed,
indigenous people wouldeventually assimilate into a
settler society.
Reserves were never designedfor permanence, they were
designed as holding zones.
In British Columbia the colony'sfirst governor, james Douglas,
(09:23):
initially recognized Indigenousland rights more explicitly than
later officials.
According to the CanadianEncyclopedia, douglas stated in
1850 that the Hudson's BayCompany had no wish to interfere
with the rights of the nativesto the lands they occupy.
Under his leadership, theDouglas Treaties on Vancouver
(09:47):
Island promised Indigenoussignatories that they could
retain their village sites andenclosed fields.
But even Douglas's policy waslimited On the mainland.
As settlement accelerated, heshifted from negotiating
treaties to simply designatingreserves.
His vision was paternalistic.
(10:07):
Reserves would confineIndigenous peoples to farming
plots under colonial oversight.
As historian Cole Harris notesin Making Native Space Douglas'
reserves were small and intendedto facilitate assimilation
rather than safeguardsovereignty.
And then came along JosephTrutch, bc's Commissioner of
(10:29):
Lands and Works.
In the 1860s.
Trutch openly referred toIndigenous people as savages and
claimed they had no realconcept of land ownership.
In an 1864 letter he wrote theIndians have no rights to the
lands they claim, nor are theyof any actual value or utility
to them?
(10:49):
And this was quoted by Harrisin Making Native Spaces and the
Dictionary of Canadian Biographyentry on Trutch.
He then proceeded to slashreserve sizes across BC,
sometimes by more than 90%.
Imagine your nation had 2,000acres.
Trutch arrives with a pen and amap and says you actually get
(11:12):
200.
You're welcome.
That was BC's land policy andit was baked into Confederation.
The thinking behind Trutch'sdownsizing was chilling.
In its logic, he believed FirstNations would eventually
disappear, whether throughassimilation or extinction.
Why preserve thousands of acresfor people who, in his eyes,
(11:38):
were destined to vanish?
So while the Royal Proclamationof 1763 recognized Indigenous
land rights, the reserve system,and especially Trutch's cuts,
systematically dispossessedIndigenous peoples of over 95%
of their territories in BritishColumbia.
Recognition on paper, but eraserin practice.
(12:00):
This leads us into the Section35 of the Constitution Act of
1982.
Let's fast forward there.
When Canada patriated itsconstitution, section 35 of the
new Constitution Act declaredthe existing aboriginal and
treaty rights of the aboriginalpeoples of Canada are hereby
(12:21):
affirmed and recognized.
That sounded powerful, aconstitutional guarantee.
Except and this is peak Canada,nobody defined what those
rights actually were.
It was like sayingcongratulations, you have rights
, but we'll get back to you onthe details.
(12:41):
But Section 35 didn't appear outof thin air.
It was fought for when PierreTrudeau's government set out to
patriate the Constitution fromBritain in the late 1970s.
The original drafts containedno mention of Indigenous people
at all.
As historian Brian Swartz notes, aboriginal rights were, at the
best, an afterthought.
(13:02):
It was only after sustainedIndigenous advocacy that Section
35 was inserted.
In 1980, hundreds of Indigenousleaders and community members
boarded what became known as theConstitution Express, a train
organized by the Union of BCIndian Chiefs to travel from
Vancouver all the way to Ottawa.
(13:24):
They were protesting theirexclusion from the new
constitutional framework.
George Manuel, then presidentof the union, described it as a
train to Ottawa to demand thatour rights not be left on the
platform.
The movement drew national andinternational attention, putting
real pressure on Trudeau'sgovernment, and the lobbying
(13:47):
worked.
After rounds of constitutionalconferences and political
maneuvering, indigenous leaderssecured the inclusion of Section
35.
But even then the language wasvague.
It recognized and affirmedAboriginal and treaty rights,
but without defining what thoserights were or how they were to
(14:07):
be enforced.
That's why for the last 40years Indigenous nations have
had to prove their rights caseby case in courts.
The Calder decision in 1973cracked the door open,
recognizing for the first timeat the Supreme Court that
Aboriginal title exists.
At common law, delcamus in 1997, defined what title means that
(14:33):
it is not just right to the landitself, it's not just a
traditional uses case Until ShelColton 2014,.
It was a historic decision thefirst time a Canadian court
issued a declaration ofAboriginal title over a specific
territory, each case chiselingout what Section 35 was supposed
(14:55):
to guarantee in the first place.
And that's why cases likeCowichan today fit squarely in
this lineage, because Section 35promised recognition.
But the content of those rightsis still being hammered out
through costly litigation,nation by nation and generation
by generation.
(15:16):
Now, treaties Canada really hastwo main categories.
The first are historic treaties.
These were agreements like theRobinson Treaties of 1850 in
Ontario, and later the numberedtreaties from 1 to 11, signed
between 1871 and 1921, coveringmost of the prairies, northern
Ontario, parts of Quebec and theNorthwest Territories.
(15:39):
On the one hand, these treatieswere Canada's way of providing
legal certainty.
They opened land for settlement, railways and resource
development, while making formalcommitments to First Nations
reserves, annual payments andguarantees of hunting, fishing
and trapping rights as long asthe sun shines and the river
(16:01):
flow To governments.
This was the compromiseIndigenous nations kept specific
rights, while Canada securedland for growth.
On the other hand, many FirstNations leaders later said they
understood treaties differently,as agreements to share the land
, not permanently surrender it,and in practice, the crown often
(16:22):
fell short of its own promises.
Reserves were smaller thanexpected, rations sometimes
never arrived and resourcerights were restricted the
moment settlers or companieswanted more access.
So while Canada saw thesetreaties as final settlements,
many Indigenous communitiesviewed them as bargains that
(16:44):
were broken.
Then come in modern treaties,starting in the 1970s.
After court cases like Calderconfirmed Aboriginal title still
existed, ottawa and provincesbegan negotiating new
comprehensive claims withnations that never signed
historic treaties.
These modern treaties like theNishka's Final Agreement or the
(17:06):
Tawassin Treaty in 2009, weredesigned to bring clarity.
They provided cash settlements,parcels of land in fee, simple
and recognition ofself-government powers.
From a government perspective,modern treaties are successes.
They provide stability forinvestment, legal certainty for
(17:27):
land ownership and a frameworkfor Indigenous self-governance.
But from the perspective ofsome Indigenous critics, they
still involve giving up broadtitle claims in exchange for a
fraction of traditionalterritories, and here's where BC
stands out, apart from thesmall Douglas treaties on
(17:48):
Vancouver Island in the 1850sand Treaty 8 in the Northeast.
The rest of the province enteredConfederation in 1871 without
treaties.
To the government of the day,this was pragmatic.
Bc wanted land open forsettlers without the lengthy
negotiations Ottawa had run intoon the prairies.
(18:09):
But the legal consequence isthat much of BC is now described
as unceded territory, land thatwas never formally surrendered.
That absence of treaties iswhat made the Haida's Nation's
2024 Rising Tide Title LandsAgreement so significant.
(18:29):
For the first time in Canadianhistory, a provincial government
formally recognized Aboriginaltitle to an entire territory all
of Haida Gwaii.
Why?
Without forcing the nation toprove it through lengthy and
decades worth of litigation.
The agreement preservesexisting private property rights
, but it establishes atransition period in which Haida
(18:52):
and provincial laws will bereconciled and land management
decisions will be shared.
For the Haida, this wasn't asurrender or extinguishment of
title.
It was land back throughgovernance, a practical
recognition that theirjurisdiction never went away.
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So, depending on yourperspective, you get two very
different takeaways.
From the government's point ofview, treaties, historic or
modern, are the way to resolveuncertainty and move forward.
From many Indigenous nations'point of view, the absence of
treaties in BC means theirrights to land were never dealt
with at all and agreements likeRise on land that was never
(19:37):
formally ceded.
Eventually a court is going tonotice, which is exactly what
happened in Cowichan Tribes vsCanada.
Finally, undrip the UnitedNations Declaration on the
(20:01):
Rights of Indigenous Peoples,adopted by the UN General
Assembly in 2007, is a relevantplace to also discuss.
Now you know, canada'soriginally voted against it,
standing shoulder to shoulderwith the US, australia and New
Zealand, basically the colonialsettler states club.
Why?
(20:22):
Because UNDRIP scared the hellout of governments.
It recognized that Indigenouspeoples have the right to
self-determination and,crucially, the right to their
lands, territories and resources.
Crucially, the right to theirlands, territories and resources
.
One of its central principlesis free, prior and informed
consent, meaning you can't justbuild pipelines, mines or
(20:44):
subdivisions on Indigenous landwithout meaningful agreement.
And, let's be honest, canada'sentire economy since
Confederation has been built onexactly that.
So, of course, on ottawa,panicked.
If you admit indigenous peopleshave a right to the land, then
suddenly the question becomeswhat about all the land already
(21:08):
taken, sold and developed?
That's not just a politicalheadache, that's an existential
legal migraine.
But international pressuremounted and in 2016, canada
officially endorsed UNDRIP.
Then, in 2021, british Columbiawent even further and passed
the Declaration on the Rights ofIndigenous Peoples Act, also
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known as DRIPA, committing theprovince to bring its laws into
alignment with UNDRIP.
Why does that matter for title?
Because UNDRIP isn't just aboutconsultation, it's about
recognition.
Article 26 of UNDRIP saysIndigenous peoples have the
right to the lands, territoriesand resources which they have
(21:51):
traditionally owned, occupied orotherwise used or acquired.
That is aboriginal title, wordfor word.
So when BC says it will alignits laws with UNDRIP, it's
basically acknowledgingindigenous people still have
rights to land, even in areasCanada has long pretended were
(22:12):
settled, and courts like inCowichan are now putting legal
teeth into that principle.
In short, undrip closes the gapbetween lofty promises and hard
law.
It forces governments to stopsteamrolling indigenous nations
with the old colonial assumptionwe already own this and you're
(22:34):
just lucky we let you live there.
Instead, undrip reframes theconversation around this to say
this was always yours and now weactually have to deal with the
reality.
That's why UNDRIP ties directlyinto Aboriginal title.
It takes what Indigenousleaders have been arguing since
(22:54):
the Royal Proclamation the titleexists until it's properly
dealt with and puts it on theworld stage as an international
human right and that makes itharder and harder for
governments or even courts topretend otherwise.
Bringing it all back toCowichan.
Because when the courtrecognized the title enrichment,
(23:14):
it wasn't to Cowichan.
Because when the courtrecognized title enrichment, it
wasn't some radical newinvention.
It was the logical culminationof centuries of promises and law
, from the Royal Proclamation toJoseph Trutch's land cuts, to
Section 35, to UNDRIP, allpointing to the same reality
(23:36):
Aboriginal title exists.
It is real and Canada has beentrying and failing to wiggle out
of that truth for 150 years.
So what was the Cowichandecision?
(23:58):
On August 7th 2025, the BCSupreme Court released its
ruling in Cowichan Tribes vCanada.
The case had been in the courtsfor more than a decade, with
over 500 trial days the longestin Canadian history.
At its core, cowichan Tribesclaimed aboriginal title to
roughly 1,846 acres of landalong the south arm of the
Fraser River in Richmond land.
They called Deluctinus, ahistoric village and fishing
(24:21):
site.
The court found yes, cowichanproved Aboriginal title to part
of that area, includingsubmerged riverbeds.
Yes, they proved an Aboriginalright to fish in the south arm
of the Fraser River protectedunder Section 35 of the
Constitution.
And no, bc never had theauthority to extinguish that
(24:43):
title by granting fee-simpleownership to settlers or
municipalities.
The court even declared thatCanada and the City of
Richmond's current fee-simpletitles were invalid, though it
suspended that declaration for18 months to allow for
negotiations.
What does that mean?
This decision is historicbecause it's the first time
(25:05):
Aboriginal title has beenconfirmed in an urban area where
there are existing privateproperty owners.
Previous cases, like Delgamu in1997 and Tishel Colton in 2014,
dealt with more remote or rurallands.
Courts had carefully avoidedruling on private lands.
Here the court said plainlyAboriginal title can exist
(25:29):
alongside fee-simple ownershipand when the two clash, it's not
about extinguishing one or theother, but reconciling them.
That's a major shift because itsuggests that the Torrens land
system the Torrens land titlesystem the backbone of certainty
for Canadian real estate is notabsolute when it comes up
(25:53):
against Aboriginal title.
Title certificates that wereonce thought ironclad may not be
In practice.
This doesn't mean homeownersare being evicted, but it does
mean the province and Canadahave a constitutional duty to
negotiate with Cowichan tribesand potentially adjust how land
(26:15):
enrichment is managed, developedor compensated.
It also signals somethingbigger If Aboriginal title can
exist in Richmond, it couldexist in Vancouver, victoria,
any city in BC where no treatieswere signed.
So first we'll start withGowlings WLG.
(26:36):
In their post-decision memobluntly titled Aboriginal Title
in Metro Vancouver a lot ofunfinished business in this
province.
They didn't sugarcoat it.
The Cowichan decision confirmsAboriginal title in an urban
area and highlights thepotential for uncertainty
regarding fee simple interests.
It emphasizes the fact thatthere is a lot of unfinished
(26:59):
business in this province.
That's law firm language, forthe foundation of BC's land
title system just cracked.
The ruling directly challengesthe principle of indefeasibility
in the land title act, theguarantee that once your name is
on a deed your ownership isfinal.
For decades that's been treatedas rock solid.
(27:22):
The ruling suggests it's not asabsolute as we thought.
Then there's miller tidderly.
Their take is less about panicand more about responsibility.
They argue the ruling goesbeyond recognizing title.
It actually imposes a fiduciaryduty on BC to reconcile
Aboriginal title with existingfee-simple property.
(27:45):
To quote them, british Columbianow owes a fiduciary obligation
to the Cowichan Nation inrespect of their Aboriginal
title lands, which include theprivate fee simple lands.
In other words, governmentscan't sit back and wait for the
next lawsuit.
They now have a constitutionalduty to get proactive, to
(28:07):
negotiate, to reconcile and totake Aboriginal title seriously.
But why do these perspectivesmatter?
So two leading legal voices,two very different tones?
Gowlings is sounding alarmbells about uncertainty and
miller, titterly, is pointing toaccountability and
(28:28):
responsibility.
Together they capture thecrossroads we're at.
On the one hand, the Cowichandecision unsettles the bedrock
of BC's property system,creating fear for homeowners who
had thought their titles wereironclad.
On the other, it reframesreconciliation, not as endless
(28:50):
litigation but as an ongoingduty, a responsibility the Crown
can't deny any longer.
This is why the Cowichan rulingis so divisive.
It's not just a legaltechnicality.
It forces Canadians to wrestlewith two truths at the same time
.
One, the Aboriginal title isconstitutionally real and that
(29:13):
Canadians still need certaintyin their own property system.
And if we don't deal with thosetruths honestly, fear will fill
the void.
And fear, as history keepsshowing us, rarely leads to good
decisions.
So what are its morecontroversial aspects?
(29:34):
This is where the fears, hopesand politics collide.
For Indigenous peoples, theruling is validation.
It proves what they've beensaying for over 150 years their
land rights were neverextinguished, not even the heart
of Metro Vancouver.
It's a chance for justice,recognition and meaningful
(29:56):
negotiations about land andresources.
For governments it's a headachethe certainty of BC's land
title system is now in question.
If upheld on appeal, the rulingcould force governments to
negotiate not just in Richmondbut across the province,
destabilizing assumptions thatunderpinned everything from
(30:19):
infrastructure projects toproperty markets.
For private land owners it'sanxiety-inducing, even though
the court said private homesaren't being stripped away.
The very idea that Aboriginaltitle can overlap with fee
simple ownership raises fearsabout property values, mortgages
and future development.
(30:40):
Commentators like candacemilcom have leaned hard into
this fear, warning canadiansthat decisions like cowichan are
a slippery slope toward losingtheir backyards for
reconciliation as a.
This is a real stress test.
The court itself admitted thiscreates unfinished business that
(31:02):
must be dealt with politically,not just legally.
That means negotiation,compromise and recognition,
things Canada has historicallyavoided in favor of top-down
control, and that's where KelSalim's response matters.
In his piece the Truth Aboutthe Cowichan Title Decision, he
points out that the Cowichannever asked for private homes.
(31:26):
Their focus was on land stillheld by governments and public
authorities For private property.
The ruling is about negotiation,not about dispossession.
Kelsum's warning is clear.
The panic you hear in someheadlines is fear through
confusion.
The truth is much less dramaticand much more important.
(31:49):
Aboriginal title is aconstitutional reality and the
Cowichan ruling shows it can bereconciled with existing
property rights throughnegotiation.
So the big picture is Cowichan athreat or an opportunity?
Well, critics see it asdestabilization of property
(32:10):
rights.
Supporters see it as longoverdue justice.
The court frames it asreconciliation.
The Aboriginal title is real,private property is real and the
Crown has 18 months to figureout how they coexist.
In short, cowichan iscontroversial because it forces
Canada to confront the one issueit has dodged for 150 years,
(32:34):
which is what happens when yourproperty system sits on the land
that was never yours, to giveaway Politics.
So we've covered the history,the law and what the Cowichan
decision actually means.
But, as with all big rulings,the real battle isn't just in
(32:54):
the courts, it's in politics.
And oh boy, does this one bringout the divisions.
So what does the left think?
On the political left, thereaction has been mostly
celebratory.
For progressives, this decisionis proof that reconciliation
isn't just a buzzword.
It's not just landacknowledgements before hockey
(33:15):
games or orange shirts once ayear.
It's the legal system sayingyes, title is real and yes, it
applies, even in the heart ofmetro vancouver.
For the left, couching is whatreconciliation looks like when
you stop being symbolic andstart being serious.
And they're not wrong.
The ruling gives weight tosomething Indigenous people have
(33:37):
been saying for generationsthis land was never surrendered
and it is unceded.
But the left also tends togloss over the practical side.
They talk about justice but notabout how messy, expensive and
complicated reconciliation inurban real estate actually is.
It's one thing to say land back, it's another to work out who
(34:01):
pays when a condo developer inRichmond suddenly finds
themselves negotiating with boththe city and Cowichan tribes,
which is very complicated.
So what do First Nations think?
For First Nations this decisionis deeply validating.
For the Cowichan Alliance it'sa recognition of a broken
promise in the 1850s whenTlucnes was sold out from under
(34:26):
them.
For Indigenous nations acrossBC it's precedent.
It proves Aboriginal titleisn't limited to remote forests
or mountains.
It can exist in cities, portsand suburbs.
That said, many Indigenousleaders know the fight isn't
over.
The province has already saidit will appeal.
(34:46):
Negotiations will be slow andgovernments have a long track
record of dragging their feet.
But symbolically, cowichanshifts the ground.
The courts are backing whatFirst Nations have been saying
for 150 years the land questionis unfinished business.
What does the BC governmentthink?
(35:07):
That brings us to theprovincial government, caught in
the middle.
Attorney General Nikki Sharmaresponded quickly, saying BC
would appeal and seek a stay.
She warned this ruling couldhave significant unintended
consequences for fee-simpleprivate property rights in BC
(35:29):
that must be reconsidered by ahigher court.
In other words, this is too bigfor one trial judge.
We need clarity from the Courtof Appeal, maybe even the
Supreme Court of Canada.
Sharma acknowledged theruling's importance but framed
it as leaving lots of questionsabout how Aboriginal title
interacts with the BC landstitle system questions about how
(35:53):
Aboriginal title interacts withthe BC lands title system.
From Victoria's perspective, theruling isn't just a moral or
legal issue.
It's a potential destabilizerof the entire real estate system
, and in a province wherehousing affordability is already
a political wildfire, that's nosmall thing.
What do conservatives think Now?
Conservatives and I'm paintinga broad strokes here tend to see
(36:16):
this as a nightmare scenarioFor them.
This ruling threatens thecertainty of private property,
the backbone of capitalism,mortgages and yes, backyard
barbecues.
For many on the right land,acknowledgements are already a
bridge too far, a kind of ritualguilt they resent being asked
to perform.
(36:37):
So when a court ruling seems tomove from symbolic
acknowledgement to actual legalrecognition.
The fear is what's next?
Are they taking my house?
And this fear isn't just abouteconomics, it's cultural.
Land acknowledgements anddecisions like Cowichan make
some conservatives feel likestrangers in their own country,
(37:00):
like they're being told youdon't really belong here.
Conservative commentators haveleaned heavily into that fear,
framing Cowichan as a slipperyslope.
The narrative is simple Todayit's Richmond, tomorrow it's
your backyard.
It's a powerful line because ittaps into that deep anxiety
about security and ownership.
(37:20):
But here's the problem.
It's not what the court said.
The court was explicit Nobody'sevicting homeowners.
The ruling is about negotiatingwith governments over public
lands and reconciling themoverlapping rights, as Kelsalom
pointed out in his article.
The truth is about Aboriginaltitle is about coexistence.
(37:43):
It doesn't rip up propertydeeds or evict homeowners.
It sets out a framework wheregovernments must negotiate in
good faith.
So conservative commentary maywork as politics, but it doesn't
reflect the law.
It creates fear but it doesn'tdescribe the ruling.
So what's the bigger picture?
(38:05):
This is the political landscape.
The left sees progress, firstNations see justice, the BC
government sees uncertainty andrisk, conservatives see danger
and commentators see anopportunity to inflame anxieties
.
(38:27):
Messy, imperfect, negotiatedreconciliation.
And if we're being honest,that's the only path forward,
because Canada can't keep sayingunceded territory in speeches
while pretending it doesn'tmatter in practice.
Cowichan forces the country tolive up to its own words.
(38:48):
Here's where I want to step outof the courtroom analysis and
speak personally.
I've sat through countlessevents where land
acknowledgements are readsometimes with sincerity and, to
be honest, sometimes withscript.
I think we've reached a pointwhere they're said too often and
risk becoming a lip service.
(39:09):
I don't believe anyone shouldbe forced or pressured to say
words.
I don't believe anyone shouldbe forced or pressured to say
words.
They don't believe A landacknowledgement that comes from
compulsion isn't reconciliation,it's theater.
It should be optional andheartfelt, not mandatory and
hollow.
And that connects to theCowichan decision.
Legally this ruling is historic.
(39:31):
Politically it's a challengebecause it doesn't just live in
the law books, it lands inpeople's living rooms.
For homeowners alreadystruggling with the fear they'll
never own a home in Canada, theidea the Aboriginal title might
overlap with private propertyrights sounds terrifying.
(39:51):
Fear makes people irrational.
Fear is powerful.
Fear makes people say thingsand vote for things they might
later regret.
That's the danger.
This ruling, while a legalvictory for First Nations, could
substantiate the idea thatCanadians are settlers or
unwelcome guests.
(40:12):
That kind of framing risksturning reconciliation into an
us versus them narrative FirstNations on one side, ordinary
Canadians on the other.
That doesn't build bridges, itbuilds divides.
As a First Nations chief, I'mglad we're moving beyond
rhetoric and beyond empty landacknowledgements.
(40:35):
Case law like Cowichan helpsdefine the real legal
relationship between the Crownand Indigenous nations.
That matters.
But as a Canadian, I don't wantto see our communities torn
apart through this process.
I hear the argument that we areall Canadians and I believe
(40:56):
there's truth to that.
Yet decisions like this cancreate distance, and here's the
clarified metaphor If thatdistance isn't filled with
honest dialogue, it will befilled with misinformation and
fear.
And once fear takes over, it'slike dropping chum in the water
Suddenly everyone's swimming inshark territory.
(41:18):
This case will be appealed.
Hopefully the higher courtswill give more clarity.
But legal clarity is not enough.
If First Nation leaders don'tstep forward to explain what
this means, not just for us butfor everyone, then other voices
will define it for us and thosevoices will not build bridges.
(41:41):
We need to hold two truths atonce.
One the Aboriginal title existsand that it matters exists and
that it matters.
And two Canada only works ifeveryone, indigenous and
non-Indigenous, feels like theybelong here together.
(42:04):
If we lose sight of eithertruth, reconciliation collapses
into either empty symbolism orbitter division.
Conclusion the Cowichandecision doesn't just test the
limits of Canadian law.
It tests the limits of ourability to live together.
At the beginning, we talkedabout Canada's obsession with
property houses, condos, cabins.
They aren't just assets,they're our national security.
(42:27):
Blanket Owning a home issupposed to mean safety,
stability.
Blanket Owning a home issupposed to mean safety,
stability and dignity.
And that's why this ruling hitso hard.
Because for the first time,canada's sacred cow, the deed in
your hand, came face to facewith something older, deeper and
legally senior Aboriginal title.
(42:49):
And here's the thing Aboriginaltitle is real.
It didn't vanish when citiesrose, when treaties failed or
when crown grants tried to buryit in paperwork.
For 150 years, indigenouspeoples carried that truth, and
now the courts have acknowledgedit.
But Canadians also live anothertruth we need stability, and
(43:11):
right now that stability isfragile.
Inflation, though slowing to1.7% year over year, still hurts
when rent is up 5.1% andgroceries up 3.4%.
Trump's tariffs have alreadyshrunk Canada's GDP by 1.6%,
rattling exports and investment.
(43:32):
Add shifting geopolitics and ashaky housing market and
Canadians already feel liketheir footing is a house of
cards in a gale.
Now layer the Cowichan rulingon top.
For homeowners living on afinancial knife's edge, the idea
that private property mightoverlap with Aboriginal title
(43:53):
sounds less like history andmore like instability.
Fear is a powerful force andfear doesn't build bridges, it
digs trenches.
That's the risk here.
A legal victory for FirstNations could, if poorly
explained, reinforce a narrativethat Canadians are just
settlers unwelcome in their owncountry.
(44:15):
That story turns reconciliationinto an us-versus-them
mentality.
It divides the very people it'smeant to bring together.
As a chief, I welcome the legalprogress.
Words alone are not enough.
Law must affirm whatacknowledgement began.
But as a Canadian, I also worry.
(44:38):
If Indigenous leaders don'tstep up to explain what this
means, silence will be filledwith fear, misinformation and
resentment, and once that waterfills.
And once that water fills, it'sno longer safe to swim.
Yes, this case will be appealed.
The courts may clarify the law,but clarity in law is not unity
(45:00):
in a society.
Unity requires conversation,engagement and trust.
We need to hold two truths atonce.
Aboriginal title exists and itdemands recognition.
But Canada only works ifeveryone, indigenous and
non-Indigenous, feel that theybelong here Lose either truth
(45:22):
and reconciliation collapsesinto hollow gestures on one side
or bitterness on the other.
Because, at the end of the day,reconciliation won't be decided
by judges in robes orpoliticians with microphones.
It will be decided in classrooms, in workplaces, in city halls
and at kitchen tables.
It will depend on whether welet fear define us or whether we
(45:46):
build trust in its place.
It will be decided by whetherwe see one another as
adversaries locked in a zero-sumfight over land and history, or
as neighbours who share thesame home.
And that home is not just soiland property lines.
It is the communities we'vebuilt, the rivers and mountains
(46:06):
we depend on and the fragilesense of belonging that makes
Canada possible at all.
If we approach each other asadversaries, reconciliation
collapses into walls andresentment.
If we approach each other asneighbors, reconciliation
becomes the difficult butnecessary work of sharing space,
(46:28):
sharing responsibility andsharing a future.
That is the challenge of theCowichan decision to prove that
justice for First Nations andstability for Canadians are not
opposites but two sides of thesame promise.
The only question now iswhether we have the courage, the
(46:50):
humility and the patience tolive up to that promise together
.
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