Can Aboriginal title be declared in respect of privately-held lands? Recent cases reach opposing conclusions

Two recent decisions from the courts of British Columbia and New Brunswick have addressed the relationship between Aboriginal title and private property rights. In Cowichan Tribes v. Canada (Attorney General), the Supreme Court of British Columbia granted a declaration of Aboriginal title, which included lands held in fee simple by third parties¹. In contrast, in JD Irving Limited et al. v. Wolastoqey Nation, the New Brunswick Court of Appeal held that such a declaration could not extend to privately-owned lands². While these remedial declarations are discretionary, the apparent conflict in judicial approaches raises questions about the future approach to Aboriginal title claims in respect of private property.

What you need to know

• These two decisions reached opposite conclusions on the availability of a declaration of Aboriginal title over privately-held lands. The BC Supreme Court declared Aboriginal title over privately-held lands, leaving open the possibility that privately-held lands may be returned to the Cowichan Tribes. In contrast, the New Brunswick Court of Appeal held such a declaration would not advance reconciliation, while leaving open the potential to seek damages from government in respect of private property subject to a finding of Aboriginal title.
• In neither case were private property rights invalidated. In BC, while the Court declared that government-held lands must be returned to the Cowichan, it did not declare third party fee simple interests invalid. Instead, the Court found that the Crown owes a duty to negotiate in good faith reconciliation of the fee simple interests with the Cowichan Aboriginal title.
• The legal test to establish Aboriginal title is difficult to meet, having been established just three times in court. The implications of the Cowichan Tribes decision are therefore fact- and context-specific. While the governing test for Aboriginal title remains proof of sufficient historic occupation, continuity and exclusivity, the decision marks the first time that Aboriginal title has been established without relying on present occupation to prove historic occupation in a manner sufficient to establish title.
• The plaintiffs in Wolastoqey Nation are seeking leave to appeal at the Supreme Court, while all defendants in Cowichan Tribes have appealed to the BC Court of Appeal. It is likely to be several years before the Supreme Court may resolve this apparent conflict in judicial approaches.

Background

Before Cowichan Tribes, just two previous decisions of Canadian courts had found that Aboriginal title was established, both in respect of Crown lands in relatively remote areas of British Columbia³. Both claims had excluded privately-held lands from their scope. Various modern Treaties and Land Claims Agreements have been negotiated between Indigenous communities and the Crown on a similar basis: Aboriginal title would be recognized over Crown lands, but private property rights would be respected⁴. Against this backdrop, commentators have discussed whether Aboriginal title could be recognized in respect of privately-held lands.

The decisions

Cowichan Tribes v. Canada (Attorney General)

The Cowichan claimed Aboriginal title over an 1,846-acre area of land that formed their traditional village of Tl’uqtinus, located in Richmond, British Columbia. After more than four years at trial, in August 2025 the BC Supreme Court declared that the Cowichan had established Aboriginal title to a portion of the claimed area, including government-held lands and privately-held lands.

The Court concluded that fee simple interests in the claim area were granted without statutory or constitutional authority⁵. In 1853, the colonial Governor at the time of settlement promised the Cowichan that they would be treated with “justice and humanity” in exchange for peace⁶. The Court found that this promise must be understood as requiring respect for the Cowichan’s interest in the lands at issue. The Court also noted that the government planned to create a Reserve for the Cowichan at the site of Tl’uqtinus. However, the Crown subsequently sold off those lands between 1871 and 1914. This was found to breach the honour of the Crown.

When considering remedy, the Court treated government-held lands differently from lands subject to private interests. The Court declared that Canada’s and Richmond’s fee simple titles are defective and invalid⁷. In contrast, in respect of privately-held lands, the Court declared that Canada owes a duty to the Cowichan to negotiate the reconciliation between private property rights and the Cowichan’s Aboriginal title in good faith, and in a manner consistent with the honour of the Crown. This reconciliation may take the form of expropriation and return of privately-held lands to the Cowichan, compensation, or a mix of approaches, all to be determined.

JD Irving Limited et al. v. Wolastoqey Nation

In Wolastoqey Nation, the New Brunswick Court of Appeal decided an appeal of a motion to strike, which held that private landowners could not be respondents to an Aboriginal title claim. In this case, the Wolastoqey Nation seeks a declaration of Aboriginal title over the western half of New Brunswick. The New Brunswick Court of Appeal adopted a different approach to Aboriginal title from the BC Supreme Court. The Court of Appeal held that the Wolastoqey may pursue its claim for a “declaration” of Aboriginal title in respect of Crown lands, but, for privately-held lands, only a “finding” of Aboriginal title is possible.

The Court concluded that a declaration is not possible in respect of privately-held lands on the basis that it would grant ownership rights and the Court was “unable to see how those rights can co-exist with the very same rights vested in fee simple owners”⁸. The Court also noted that a declaration of Aboriginal title would affect persons who are not parties to the action “without their participation in the preceding process and in violation of their right to be heard”⁹.

In making these findings, the Court recognized that the Crown is ultimately responsible for reconciling Indigenous rights with other rights and interests. The Court concluded that declaring Aboriginal title over privately-held lands would not further reconciliation as it would create an “irreconcilable” situation by recognizing two competing rights of exclusive ownership over land¹⁰. Instead, the Court of Appeal found that the Wolastoqey could pursue a claim for compensation and damages in respect of privately-held lands once a “finding” of Aboriginal title is made.

Key takeaways

What is required to establish Aboriginal title?

The legal test to establish Aboriginal title is difficult to meet, having been established just three times in court. The implications of the Cowichan Tribes decision are therefore fact- and context-specific. Relevant to lands that have not been ceded by Treaty, the test requires (1) “sufficient occupation” of the land at the time of assertion of European sovereignty; (2) where present occupation is relied on to establish “sufficient occupation,” occupation must be continuous; and (3) exclusive occupation¹¹.

Is a declaration of Aboriginal title available in respect of privately-held lands?

The Cowichan Tribes and Wolastoqey Nation decisions diverge on whether a declaration of Aboriginal title is available in respect of privately-held lands. The New Brunswick Court of Appeal held that such a declaration of Aboriginal title would not advance reconciliation, and that claims in respect of privately-held lands should be limited to compensation and damages. The BC Supreme Court held that Aboriginal title may be established in respect of privately-held lands, and that reconciliation of interests should be subsequently negotiated. Ultimately, this issue may be taken up by the Supreme Court to clarify.

Even if Aboriginal title is declared in respect of private property, does that automatically invalidate private property rights?

Even in the current state of legal uncertainty, it appears clear that a declaration of Aboriginal title will not automatically invalidate private property rights. In Cowichan Tribes, the Court ordered that the government-held lands be returned to the Cowichan, but not the privately-held interests. Instead, the Court required the Crown to negotiate in good faith reconciliation in respect of the fee simple held by third parties. The outcome of these negotiations could include compensation to the Cowichan, expropriation and return of lands, or a mix of these or other approaches. Modern treaty negotiations have typically carved out an exception for private fee simple interests, so it is possible a similar resolution is reached here.

How can companies manage this uncertainty?

In view of this uncertainty, companies should conduct enhanced diligence on any significant or key lands in relation to project development or otherwise, in the aim of understanding the basis for and strength of potential Aboriginal title claims. Where diligence identifies potential risks, consider what representations, warranties, indemnities or other measures may be appropriate to manage risk. In the context of this uncertainty, it is also particularly important for proponents to engage early and meaningfully with key Indigenous communities, with the goal of building relationships and satisfying concerns presented.