Ruling against Aboriginal title on private land is allowed to stand by high court

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In the New Brunswick decision that has been allowed to stand, an Appeal Court judge said in December that a declaration of Aboriginal title over privately owned lands “would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”

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In addition to British Columbia and Richmond, Canada’s federal government is also a party to the Cowichan case.

The Crown-Indigenous Relations Department said the Wolastoqey decision allowed by the Supreme Court of Canada to stand on Thursday was an important ruling, adding that “private property rights are fundamental.”

“Canada takes note of the Supreme Court’s decision not to hear the Wolastoqey case,” a spokesperson for Crown-Indigenous Relations Minister Rebecca Alty said.

“In the case, the courts found that Aboriginal title could not be declared over privately owned lands. This important New Brunswick Court of Appeal decision will inform arguments in other cases, such as the Cowichan case in British Columbia.”

In the Cowichan ruling last August, the B.C. Supreme Court ruled that the Cowichan Tribes have Aboriginal title over a portion of land in Richmond along the Fraser River, that Aboriginal title is a “senior interest” compared with fee-simple title, and that sections of B.C.’s Land Title Act that establish fee-simple title as “indefeasible” do not apply to Aboriginal title.

It has led to concerns that it puts private property at risk, although the Cowichan Tribes have said they are not seeking to lay claim to private land.

The lawyer for the Cowichan Tribes said the decision by the Supreme Court of Canada not to hear the Wolastoqey appeal was “good news” for his clients, who had sought to intervene in the application.

David Robbins said in a statement that his clients had “argued that the Supreme Court of Canada should not decide the very important question of ‘can Aboriginal title exist over privately held lands?’ on an appeal of a pre-trial decision, as in the Wolastoqey Nation case.”

He said his clients believed it would be more appropriate for the court to wait and address that question in any appeal of the Cowichan decision.

Another lawyer for the Cowichan, David Rosenberg, said the Supreme Court of Canada’s decision could be interpreted to mean it was “more interested in deciding these important issues on a full record, after a full trial.”

The Lyackson First Nation was among the “modern-day successors” of the historic Cowichan Nation covered by the Cowichan ruling. Hereditary Lyackson Chief Shana Thomas said the Supreme Court of Canada’s decision had not shaken her “full confidence” in the Cowichan decision.

“We definitely are within our rights to pursue that justice, and we have the evidence, we have the history, we have the oral evidence, we have the colonial records, we have all that we need to stand up to any challenge that we face, and I feel quite confident in the Cowichan Nation on this matter,” said Thomas.

The spokesperson for Alty said the federal government would always protect private property rights.

“As the appeals process for the Cowichan case proceeds, Canada will make all legally viable arguments to protect private property,” the spokesperson said.

“At the same time, we remain committed to advancing reconciliation and working with Indigenous partners to address claims in a way that respects and upholds their rights and preserves the certainty and stability of private property.”

The federal and B.C. governments and other parties, including the City of Richmond, are appealing the Cowichan Tribes decision, while Montrose Properties, the largest private land owner in the Cowichan title area, was in court this week separately seeking to reopen the case, saying it was unfairly omitted from the original trial.

Montrose CEO Ken Low said the company believed the Supreme Court of Canada’s decision on Thursday “is helpful to our position.”

“In our application to reopen the Cowichan Tribes trial that was heard earlier this week, Montrose relied expressly on the New Brunswick Court of Appeal decision in Wolastoqey,” he said.

Richmond Mayor Malcolm Brodie said the city hoped the rejection of the Wolastoqey Nation’s leave application “is a signal of the current thought process of the Supreme Court of Canada, and we will get a similar result.”

He said he thinks landowners in the area “should breathe a little easier now with this Supreme Court of Canada ruling.”

“We’ve got to keep working hard on the situation, finish off the trial, get to the Court of Appeal, and then, if necessary, get to the Supreme Court of Canada,” he said.

“I hope that people feel a little better about the situation than they felt before.”

B.C. Green Party member of the legislature Rob Botterell, a lawyer who has worked with First Nations, warned against reading too much into the court’s refusal to hear the New Brunswick case.

“The important thing is, is that the New Brunswick case is New Brunswick specific, and you can’t necessarily take anything from the Supreme Court of Canada refusing to hear an appeal in terms of what is happening with the Cowichan case. They are totally different facts and settings.”

Chief Thomas rejected the idea that individual landowners should have a role in reconciling Aboriginal title with assertions of Crown sovereignty.

“It is not up to individual landowners to engage in that. It is up to the province to meet its fiduciary duty and carry out its responsibilities … the Cowichan Nation and the provincial government are currently at a table engaging in those conversations as we speak,” said Thomas.

This report by The Canadian Press was first published May 28, 2026.

Wolfgang Depner and Nono Shen, The Canadian Press