Cowichan Tribes v. Canada is a decision by the Supreme Court of British Columbia establishing that the Cowichan Tribes have Aboriginal title to approximately 732 acres of a riverine area in the city of Richmond. The decision was made, in part, on the basis that the disputed land had been used exclusively as a Cowichan summer fishing village in 1846, the date of assertion of British sovereignty over what later became British Columbia, Canada. All parties involved in the case have expressed their intention to appeal to the British Columbia Court of Appeal.
For the area over which the decision awarded the Cowichan Aboriginal land title, the court declared that the land titles of the national government and the City of Richmond were "defective and invalid" meaning that, if the ruling is upheld on appeal, the Cowichan could eventually take control of the land and use it as they see fit. The court suspended its declaration for 18 months since it "will change a long-established status quo and have significant impacts for Richmond and third-party lessees on the lands that Canada owns."
The Cowichan's claim was only against governments, and the court did not invalidate the fee simple titles of private landowners where Aboriginal title was granted. However, the court declared that the Cowichan Aboriginal title is a "prior and senior right" to other property interests, whether the land is publicly-held or privately-held. Further, the court ruled that the government's granting of private fee simple titles "unjustifiably infringe" the Cowichan's Aboriginal title. The court declared that "Aboriginal title and fee simple interest can coexist," and it leaves to future litigation to determine the extent to which the Cowichan can influence how the privately-owned fee simple lands over which they hold Aboriginal title are used.
The ruling is the first in Canada where Aboriginal title has been established over privately-owned land. The judgement has potentially widespread implications for private property ownership in the province of British Columbia, and perhaps elsewhere in Canada.
The trial was the longest in Canadian history, concluding 11 years after legal proceedings began, and 6 years after the trial started.
Participants in the trial Cowichan Tribes was the plaintiff in the case. The defendants were the federal government (Attorney General of Canada), the province of British Columbia (B.C.), the City of Richmond, the Vancouver Fraser Port Authority, the Musqueam First Nation, and the Tsawwassen First Nation.
No private landowners were parties to the lawsuit, although the ruling affects approximately 145 private properties (45 in the title area, and an additional 100 within the rest of the claim area, according to the premier's office). Early in the court proceedings, the court rejected a request by the City of Richmond, the province of B.C., and the federal government to require the Cowichan to provide formal notice to affected landowners. The Cowichan argued that such notice would be an invitation for hundreds of people to join the litigation, which would slow the case. B.C. Supreme Court Justice Jennifer Power (the judge who oversaw early stages of the litigation) ruled in 2017 that private landowners did not need to be notified during the trial because they "will have an opportunity to make all arguments, including that they were not given formal notice, in any subsequent proceedings against them if any such proceedings are brought." After the trial, the provincial and federal governments supported a request to the court by some landowners to reopen the case and to name them as a party in the litigation. Justice Young denied the request in June 2026, and in July 2026 the landowners appealed her decision.
The claim area
The land claimed by the Cowichan Tribes is approximately 1,846 acres (747 hectares) on Lulu Island in the City of Richmond. Before the court decision, the property in the claim area was worth an estimated $1.3 to $2 billion, and includes a port terminal; airport jet fuel facilities; industrial, commercial, and agricultural businesses; and residential properties. The boundary of the territory claimed is based on the extended land management area of a former Cowichan summer settlement, as determined by historical geographer and cartographer Dr. Kenneth Brealey.
The ruling In August 2025, a B.C. Supreme Court judge ruled that the Cowichan Tribes had established Aboriginal title to approximately 732 acres in the City of Richmond, and the Cowichan were granted recognition of an Aboriginal Right to fish the south arm of the Fraser River. The judge declared that land titles held by Canada and Richmond were "defective and invalid", meaning that if the Cowichan's win is upheld on appeal, they could take control of the land and use it as they see fit. The judge suspended her declaration for 18 months so the Cowichan, Canada, and Richmond "have the opportunity to make the necessary arrangements." She wrote that her declaration "will change a long-established status quo" and have significant impacts for Richmond and third-party lessees on the lands that the government of Canada owned, and that "much remains to be resolved."
The Court also determined that wherever Aboriginal title is found to exist, it is a "prior and senior right" to other property interests, whether the land is public or private. The judge ruled that where Aboriginal and fee simple title exist for the same parcel of land, the government's grant of fee simple title "unjustifiably infringed" on the Cowichan Aboriginal title. ("Fee simple" title is as close to absolute ownership title as exists in the Canadian system of property law.) The Court did not invalidate the land titles held by private fee simple landowners, as the Cowichan's claim was only against governments. The ruling leaves to future litigation a determination of to what extent the Cowichan can influence how the fee simple private lands over which they hold Aboriginal title are used. The City of Richmond has told affected private landowners that, since the Cowichan Tribes have been granted Aboriginal title, this "may compromise the status and validity" of their land ownership.
The court rejected the argument that the Land Title Act could shield fee simple title from Aboriginal title claims, finding that Aboriginal title exists outside the land title system. The judge relied on B.C.'s Interpretation Act which requires legislation to be interpreted in a way that does not diminish Aboriginal rights. The Court noted that interpreting the Land Title Act to override Aboriginal title would conflict with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which was incorporated into B.C. law in 2019 in its Declaration on the Rights of Indigenous Peoples Act.
The basis for the finding of Aboriginal title The test for Aboriginal title was, in part, whether the Cowichan could prove sufficient and exclusive occupation of land as of just prior to the date of assertion of Canadian sovereignty, with that date being 1846. (In 1846 the British government declared sovereignty over what later became British Columbia by entering into the Oregon Treaty with the U.S.)
In 1846, the ancestors of the Cowichan, who then numbered around 1000 people, used the area in dispute (a portion of Lulu Island in the city of Richmond) for a few months each summer for fishing. Their permanent home was on Vancouver Island. To meet the test of "exclusive" occupation required to establish Aboriginal title, the Cowichan had to prove that they effectively used intimidation and force so that other Indigenous groups, like the Musqueam and Tsawwassen (who both opposed the Cowichan claim), would have been reluctant to use the claimed area when the Cowichan were away.
The Colony of B.C. started issuing fee simple titles in the Richmond area in the 1860s. Around this time the government started, but did not complete, a process to create a reserve for the Cowichan in the area (a Cowichan reserve was declared on Vancouver Island in 1867). The Cowichan that had fished in the area during the summer left by about 1870, and there has been no connection between them and the area since. Various courts have ruled that there is no need for continuous occupation.
In determining the specific areas which had been exclusively occupied by the Cowichan in 1846, the judge relied on witnesses who gave oral evidence handed down from their ancestors, referred to as hearsay evidence in legal terms. Such evidence is generally inadmissible in common law, but the Supreme Court of Canada has permitted its use for Aboriginal peoples to substantiate their cases.
The Cowichan claim objectives Cowichan Tribes Chief Cindy Daniels said "As stated in our 2016 declaration of reconciliation, our land and resources objectives are to recover and restore our village and surrounding lands, re-establish our permanent residence and river access, re-establish our cultural practices including those that support food security and sustainability, realize economic development and re-establish the truth of our history in that region."
The chief negotiator for the Cowichan, Robert Morales, said the Cowichan did not want to displace "the ordinary British Columbian from their land, understanding that that's a pretty serious position to take." Regardless of what the Cowichan sought, the court found that governmental grants of fee simple title to the lands at issue were an "unjustified infringement of Cowichan Aboriginal title". The Cowichan's claim is over land held by governments, although (outside of this lawsuit) their position could change if their leadership changes.
Arguments of the defence One of the key issues in the case was whether Aboriginal title was extinguished when the fee simple titles were created. The City of Richmond was the only party at the trial to argue that the post-Confederation "Crown" (i.e., government) grants of fee simple title issued over the area between 1871 and 1914 necessarily extinguished Aboriginal title. The mayor of Richmond said there is an expectation that "any legitimate defence which can protect the people should be taken."
The federal government abandoned the extinguishment defence in 2018. Lawyers for B.C. were guided by a "civil litigation directive" established by Premier David Eby when he was provincial attorney general, which states the province will not advance arguments based upon the unilateral extinguishment of Aboriginal rights. While the court rejected the extinguishment argument, finding that Crown grants were made without constitutional authority (Canada's 1982 constitution does not include private property rights, but includes Aboriginal rights and title), the stance of the defendants may have influenced the outcome, since the court works with the arguments presented.
The judge noted that B.C. argued "the content of any Aboriginal title rights that the Cowichan may have today is necessarily limited by the fee simple interests." The trial judge said some of the province's arguments were rejected since they were inconsistent with B.C.'s own legal acts. Specifically, the judge's decision was influenced by the province of B.C.'s April 2024 decision to recognize Aboriginal title to Haida Gwaii (an archipelago on B.C.'s west coast where around half the population of 5000 are Haida). Also noted was the province's passage of the Declaration on the Rights of Indigenous Peoples Act which requires B.C. law to be consistent with the UNDRIP, which says Aboriginal groups have the right to own, use, develop, and control any lands that they traditionally occupied or used.
Implications and reactions Impact on landowners in the claim area