“After conducting the longest running trial in Canadian history on behalf of our clients, we are celebrating the Court’s recognition of Quw’utsun [Cowichan] Nation’s Aboriginal title and rights,” said Woodward & Co. Lawyers LLP, one of the firms representing the plaintiffs, noting that staff dedicated over 10 years to the case.
In the Aug. 7 decision Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, the plaintiffs brought the action on behalf of their descendants, seeking declarations of Aboriginal title to their traditional village, Tl'uqtinus, located on the south arm of the Fraser River, including its surrounding and submerged lands, as well as a declaration of an Aboriginal right to fish in the river.
“This case raised complex, and in many instances, novel issues,” wrote Justice Barbara Young in the 863-page decision.
The claim area is located on the south shore of Lulu Island in the city and covers about 1,846 acres of land. It was owned by the defendants, the federal Crown, the Vancouver Fraser Port Authority (VFPA) and the city, along with private third parties. Other defendants included the province, Tsawwassen First Nation and the Musqueam Indian Band.
Various evidence was heard including oral history, “a substantial volume of historical documents” and ethnographic evidence, along with expert evidence in areas of archaeology, sociocultural anthropology, ethnohistory, history, ethnogeography, ethnoecology, ethnobotany, historical geography, cartography, cartology, genealogy and transportation economics.
The court found that the plaintiffs had established Aboriginal title to a portion of the claim land that included a strip of submerged lands and established their right to fish for food in the south arm of the river. The court made numerous findings central to the matter.
The Cowichan Nation comprises 11 local groups before the time of European contact and at the time the British Crown asserted sovereignty. Five current groups are descendants and were found to be bands within the meaning of the Indian Act and a continuation of those 11 groups. The court noted them as modern-day successor groups.
The Cowichan were found to have occupied several winter villages on the east coast of Vancouver Island and the southern Gulf Islands. Every summer, they travelled en masse to a permanent post and beam village (Lands of Tl’uqtinus) where they lived and fished.
The court found that prior to, at and after 1846, the Cowichan people sufficiently and exclusively occupied their permanent village, its surrounding lands and the strip of submerged lands in front of the village at Tl'uqtinus. The village existed on the lands through to 1859. They continued to return to the village every summer through the 1870s and beyond. About 2,250 Cowichan occupied the village on the Lands of Tl'uqtinus in season as of 1846.
The evidence also showed that while many groups lived on the lower Fraser River, there were places that belonged to specific groups. The Cowichan had their village that belonged to them, and other groups respected that it was on Cowichan land, the court noted.
The Cowichan exercised effective control over their land, the court explained. There was no evidence of other Indigenous groups occupying the village. At the relevant time period in the first half of the 18th century, the Cowichan were the dominant Indigenous group on the lower Fraser River for their size and strength, and they had the intention and capacity to exclusively control their village land and some surrounding areas.
The beach that the Cowichan actively used in front of their village is now underwater. The court found they had sufficient and exclusive use of the shoreline, which was immediately in front of their village. The plaintiffs met the test for Aboriginal title to submerged lands resulting from shore erosion.
Governor James Douglas told the Cowichan in 1853 that Queen Victoria “had given him a special charge to treat them with justice and humanity, so long as they remained at peace with the settlements.” This solemn promise engaged the honour of the Crown, a constitutional principle that requires the Crown to act honourably in its dealings with Indigenous Peoples.
In 1859 and 1860, Douglas appropriated Indian settlements from the Crown’s land disposition processes. This included sale and pre-emption. The settlements were set aside to become Indian reserves.
While the Cowichan continued to occupy their village, and it was an “Indian settlement” as understood by colonial officials, Cowichan’s settlement was never established as an Indian reserve for the Cowichan. The Lands of Tl’uqtinus were instead sold to settlers without the Cowichan’s knowledge.
Crown grants of fee simple interest were issued over the whole of the claim area between 1871-1914, including the title lands. Since occupied Indian settlements were appropriated and could not be sold, most of the Crown grants in the Cowichan lands were made without statutory authority. Further, post-Confederation Crown grants in the Cowichan title lands were made without constitutional authority.
“The Crown grants of fee simple interest deprived the Cowichan of their village lands, severely impeded their ability to fish the south arm of the Fraser River, and are an unjustified infringement of their Aboriginal title,” wrote Justice Young.
“Subsequent dispositions of the Cowichan’s land, including BC’s vesting of Richmond with fee simple interests and the soil and freehold of highways, are also unjustified infringements. Additionally, some of Canada and the VFPA’s activities on the Cowichan Title Lands unjustifiably infringe the Cowichan’s Aboriginal title.”
The judge also noted that the province had no jurisdiction to extinguish Aboriginal title and that Crown grants of fee simple interest did not extinguish or displace the Cowichan’s Aboriginal title. Rather, Aboriginal title goes beyond the land title system in the province. Sections 23 and 25 of the Land Title Act did not apply to Aboriginal title.
Richmond’s reliance on these sections as a statutory defence was not made out. Its fee simple interests in the Cowichan title lands were not conclusive evidence that it is indefeasibly entitled to that land as against the Cowichan as Aboriginal titleholders.
B.C. and Richmond also advanced limitations defences and equitable defences of bona fide purchaser for value without notice and laches. The plaintiffs’ invocation of estoppel to the defences was not made out, the court found. Despite this, the plaintiffs’ claims were not found to be time-barred by limitations statutes and the equitable defences were not made out.
The court stated that limitation legislation “cannot bar courts from issuing declarations on the constitutionality of the Crown’s conduct” and that “profound adverse consequences — the dispossession of the Cowichan people of their homeland — continue today, and this gives rise to a fresh cause of action each day it continues.” Further, the dispossession amounted to trespass.
Canada owns 11 lots in the claim area and assigns administration of them to the Vancouver Fraser Port Authority. It also manages marine fisheries. Canada opposed the Aboriginal title claim and posited that if the Cowichan needed permission from the Musqueam to fish, then an Aboriginal right had not been established. If such had been established, Canada reached an out-of-court agreement with the plaintiffs so the court does not need to determine the issue.
The port authority occupies land operating port storage facilities on the south arm of the river. It is Canada’s agent under the Canada Marine Act. It owns four lots in the claim area and advanced the same claims as Canada. Ultimately, the court found that Aboriginal title exists over some land owned by Canada and managed by it, but Aboriginal title did not exist on the four lots.
B.C. opposed the claim on the basis that the Cowichan did not sufficiently and exclusively occupy Tl'uqtinus in 1846. It argued that the land being granted to settlers by Crown grants of fee simple interest were validly made. If Aboriginal title is established, it argued that any exercisable right the Cowichan may have is limited by the fee simple interests.
Richmond owned lands in the claim area that included a strip on the shoreline of the river where the court found the village at Tl'uqtinus once sat. The Cowichan established Aboriginal title to the shoreline. The city had obtained the land between the 1920s and 1940s through a municipal tax sales process when settlers failed to pay property taxes. While the lands were only minimally developed, the city relied on indefeasibility protection of the Land Title Act and opposed Aboriginal title.
The Tsawwassen First Nation owned a large parcel of land south of the south arm of the river under the provincial and federal Tsawwassen First Nation Final Agreement Act. The court stated that the lands it owns are not in or near the claim area. However, there was geographical overlap and engagement between its modern treaty rights and the Cowichan’s asserted title to the Lands of Tl'uqtinus and right to fish in the south arm.
Tsawwassen opposed the claim that the Cowichan were an Indigenous people at the time of European contact or sovereignty or sufficiently or exclusively occupied Tl'uqtinus at 1846. It said the court “should avoid a conclusion that would detract from the established s. 35 rights of other First Nations or that would otherwise discourage parties from concluding modern treaties.”
The Musqueam occupy a reserve located on the north shore of the north arm of the river, at the entrance of it, near the Vancouver International Airport. Its territory was not determined by a court or treaty. In 1976, it declared it held Aboriginal title and rights to land, sea and freshwaters covering the north and south arms of the river, among other areas.
The court found that the Musqueam did not occupy the same area of the south arm of the river that the Cowichan did and never occupied the village of Tl'uqtinus. The Musqueam argued that the Cowichan needed its permission to fish in the south arm and therefore did not have the right to fish. The court found that historically, the Musqueam did not control fishing there and the Cowichan did not need their permission, or any other Indigenous group’s permission, to do so.
“Although it has taken a very long time, the Cowichan have now established their Aboriginal title to that land,” wrote Justice Young.
“These declarations will assist in restoring the Cowichan to their stl’ulnup [sacred, ancient homeland] at Tl'uqtinus and facilitating the revitalization of their historical practice of fishing for food on the Fraser River and teaching their children their traditional ways,” she added. “Nevertheless, much remains to be resolved through negotiation and reconciliation between the Crown and the Cowichan.”
“Additionally, the determinations in this case will impact the historic relationships between the Cowichan, Musqueam and [Tsawwassen First Nation], and relations moving forward. The fact is all the parties have continued interests, rights and obligations around the south arm of the Fraser River and limited resources need to be shared and preserved.”
Canada and Richmond’s fee simple titles and interests in the Cowichan title lands were declared defective and invalid, except for the “Vancouver Airport Fuel Delivery Project Lands.” Canada owed a duty to “negotiate in good faith reconciliation of Canada’s fee simple interests in the Vancouver Airport Fuel Delivery Project Lands with Cowichan Aboriginal title.”
B.C. also owed a duty “to negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title.”
The plaintiffs were successful in the action.
“As was our mission, we are honoured to have delivered transformative change for the Quw’utsun Nation in this era of reconciliation and decolonization,” said David Robbins, Woodward & Co.’s lead counsel on the case.
B.C. Attorney General Niki Sharma said in a statement that the province strongly disagrees with the decision and will be filing an appeal and seeking a stay to pause implementation pending the appeal’s determination.
“We respect the court’s role in our justice system, but given the significant legal issues raised in the recent decision … we believe it must be reconsidered on appeal,” she added. “This ruling could have significant unintended consequences for fee simple private property rights in B.C. that must be reconsidered by a higher court.”
She said the government is committed to protecting and upholding private property rights while also advancing work on reconciliation.
“This case is an example of why the Province prefers to resolve land claims through negotiation — where we can protect property rights directly — rather than risk considerable uncertainty through court decisions.”
She added that the province will provide updates as the process moves forward.
Counsel for the plaintiffs were numerous lawyers from Woodward & Co. Lawyers LLP, Rosenberg Law, Borden Ladner Gervais LLP, Harris & Brun, Morgan and Associates, and other firms and boutiques.
Counsel for Canada and B.C. were numerous lawyers from their respective attorneys general.
Counsel for Richmond were lawyers from Olthuis van Ert and the Province of B.C.
Counsel for the Vancouver Fraser Port Authority were lawyers from Juristes Power Law, McMillan LLP, Lindsay Kenney LLP and B.C.’s Department of Justice.
Counsel for Musqueam were lawyers from Mandell Pinder LLP, Hall & Larocque LLP, Ethos Law Group LLP and others.
Counsel for Tsawwassen were lawyers from Gall Legge Grant Zwack LLP.
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