In recent B.C. Supreme Court ruling, Cowichan Tribes did not seek to displace private property holders but ruling says Indigenous and fee-simple land title can co-exist

Published Dec 08, 2025

Last updated 5 hours ago

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Kwikwetlem First Nation in Port Coquitlam is claiming land adjacent to their territory as part of an Aboriginal land claim. Photo by Jason Payne /PNG

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In 2016, the Kwikwetlem First Nation filed a claim in B.C. Supreme Court for Aboriginal title to about five square kilometres in Port Coquitlam.

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The lands lie along the Coquitlam River, and include some provincial lands within the City of Coquitlam.

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The provincial properties include the Riverview lands where a psychiatric hospital ran for nearly a century and was closed in 2012, the Colony Farm Forensic Psychiatric Hospital lands, and a wildlife area at the mouth of the Coquitlam River.

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The claim by the Kwikwetlem, also known as the kʷikʷəƛ̓əm, also includes Metro Vancouver’s ƛ̓éxətəm Regional Park, formerly called Colony Farm Regional Park, and the City of Port Coquitlam’s Gates Park and undeveloped South Shaughnessy lands owned by the city and earmarked for future housing.

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The Kwikwetlem say they exclusively used these lands to harvest, hunt and fish. They built fish traps and used various sites to process and preserve fish, plants and berries. It’s where they undertook burial, ceremonial and spiritual activities.

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According to their court filing, they’ve been left with poor and inaccessible reserve land, which they say leaves them with less than three hectares of usable land.

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They say the provincial and city lands they are seeking title to are the last remaining undeveloped lands in their much larger traditional territory.

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The Kwikwetlem’s court filing excludes privately held lands but Aboriginal title claims like theirs — that are under negotiation or working their way through the courts — have come under sudden public scrutiny because of a recent landmark B.C. Supreme Court ruling.

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That ruling found the Cowichan Tribes from Vancouver Island had Aboriginal title to about half of the 7.5 square kilometres they had claimed, land owned by the City of Richmond and federal Vancouver-Fraser port lands, but also privately held homes, farms, a golf course, and commercial lands with large warehouses.

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The Cowichan had used the area along the Fraser River as a summer village where as many as 2,000 people gathered to fish for salmon, but the land was sold off by government starting in 1871.

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The Cowichan Tribes did not seek a ruling on the private land and B.C. Supreme Court Justice Barbara Young found that only the city and federal lands were “defective and invalid” and gave the parties 18 months to negotiate a settlement.

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But the ruling did not put private lands off limits.

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The judge ruled that Aboriginal title and fee-simple title can co-exist. And Young noted that while the Cowichan are not pursuing exclusive use and occupation of privately owned lands, they might choose to do so in the future through negotiation or legal action.

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While there have been two other court cases in B.C. that gave Aboriginal title to specific parcels of land, it was the first time that properties held by individuals and businesses, called fee simple, were captured in a court ruling. The decision is being appealed by the province, federal government, the City of Richmond, and the Musqueam and Tsawwassen nations.

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The city and province are appealing to protect the existing system of private property rights, while the First Nations are appealing because they believe their rights in the area have been infringed. The Cowichan are also appealing to get access to all the land in their original claim.

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Given other Aboriginal title cases filed in B.C. Supreme Court, including recent renewed cases in the B.C. Interior and Vancouver Island, the ruling has raised concerns and fears among property owners and businesses that their privately held land is under threat.

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“It could be large tracts of British Columbia,” says Robin Junger, a former chief provincial treaty negotiator, former deputy minister of energy and now a lawyer with McMillan LLP, which represents Montrose Properties, the largest commercial landholder affected in Richmond.

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Metro Vancouver’s ƛ̓éxətəm Regional Park, formerly called Colony Farm Regional Park, is part of an Aboriginal title claim by the Kwikwetlem First Nation. Photo by Jason Payne /PNG

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However, exactly how much privately held land might be encompassed by Aboriginal land claims in future is unclear. Also unclear is whether privately held lands will be on the table in all cases.

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Asked by Postmedia to provide a list of Aboriginal land claims notices, the B.C. NDP government refused.

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“Court records remain the most reliable source of information,” the Ministry of the Attorney General said in a statement sent by senior public affairs officer Art Aronson.

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The B.C. government did not make anyone available for an interview.

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How much private land might be at stake is also unclear because the land title settlement picture is complex.

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Historically, land titles settlement has been restricted to provincial and federal lands.

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And a lot depends on a First Nation’s intentions.

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Sometimes court filings for Aboriginal title are used to get the provincial and federal government to the bargaining table. That was the case with the Kwikwetlem, who noted they filed their claim in 2016 because the province refused to enter into treaty negotiations.

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The 2016 claim “is currently on hold as multiple parties negotiate a deal. Negotiations are still ongoing,” the Kwikwetlem said in a written statement sent by Josh Kozelj, a communication specialist with the First Nation.

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Chief Ron Giesbrecht, reached by phone, declined to comment on their claim.

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The Kwikwetlem, which has about 130 members, noted in its court case that it was going after provincial and municipal lands because urban development makes it impossible for “the practical exercise of Aboriginal title without the substantial displacement or disruption of third parties.”

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More title cases

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In another court case, on the west of Vancouver Island, the Ehattesaht First Nation, which has about 550 members, amended a claim last month first launched in 2003.

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The First Nation, also known as ʔiiḥatisatḥ činax̣int, is seeking Aboriginal title to about 650 square kilometres of their traditional territory that contains privately held lands, including in the tiny village of Zeballos.

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This summer, the First Nation dropped its claims against the now defunct Doman forest company, Greig Seafoods, the Regional District of Comox Strathcona and the Village of Zeballos.

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But not unlike the Cowichan Tribes in their claim for land in Richmond, the Ehattesaht says Aboriginal title extends “to lands which are currently held in fee simple.”

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But the First Nation’s claim states: “In the interest of reconciliation, Ehattesaht do not seek to dispossess, displace or invalidate the titles for fee simple held by third parties. Ehattesaht does claim compensation against the Crown for loss of use and benefits, and unjustified infringement, regarding the fee simple lands and minerals.”

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The Ehattesaht and their lawyer did not respond to questions.

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In another title claim on Vancouver Island originally filed in 2003 and amended in December 2024, the Mowachaht/Muchalaht, which has about 615 members, is seeking title to about 4,300 square kilometres that encompass the small community of Gold River and monetary compensation.

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The claim is directed solely at the B.C. government and alleges that the province has adversely affected their title by granting rights to forest activities and fee-simple interests, including a park in Gold River.

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“For centuries the province has been making decisions in our territory without our consent that have had devastating cultural, spiritual, environmental and economic harms, and very little benefit to (the Mowachaht/Muchalaht),” Chief Mike Maquinna said when the amended claim was filed.

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Mowachaht/Muchalaht First Nation Chiefs Jerry Jack (left) and Mike Maquinna are photographed following an announcement about the title claim they’re seeking for declaration of Aboriginal title in pursuit of self-governance and land stewardship during a press conference at the Hotel Grand Pacific in Victoria on Dec. 12, 2024. Photo by CHAD HIPOLITO /THE CANADIAN PRESS

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The First Nation declined to comment further on their title case.

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In the B.C. Interior, the Stk’emlupsemc te Secwépemc of the Secwépemc Nation, which have about 1,800 members, filed an Aboriginal title claim in 2015 to halt the proposed $1.3 billion Ajax Mine. That claim has been amended several times, including in March 2025.

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The claim is for 12,500 square kilometres of traditional territory that includes the City of Kamloops and District of Logan Lake, as well as smaller settlements.

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The claim does not say anything specific about fee-simple lands and the First Nation has not said anything publicly on their position on privately held property.

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The Stk’emlupsemc te Secwépemc’s court filing notes that one of the cumulative adverse impacts of various development is the “dedication of these lands to settlement by non-Aboriginal communities, including the development of major cities and towns, including the City of Kamloops and the Town of Logan Lake.”

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The picture shows Inks Lake, within an area claimed by the Stk’emlupsemc te Secwépemc. Photo by KGHM Ajax /PNG

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The Tŝilhqot’in were the first to win Aboriginal claim to specific lands in B.C., their historic 2014 Supreme Court of Canada win granting them 1,700 square kilometres in central B.C.

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In 2016, their central government filed a claim in B.C. Supreme Court to private lands in their title area, most of them ranches. But the First Nation said they had no intention of pursuing the lawsuit, instead it was meant to protect their interests before a two-year limit expired to get compensation at the negotiating table.

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David Rosenberg, the lawyer for the Cowichan and who also represented the Tsilhqot’in, noted that First Nations often claim large traditional territories but the actual finding of Aboriginal title by the court is usually between two to five per cent of that area.

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“Whether or not fee simple would co-exist, and what the outcome would be, it’s very fact specific,” said Rosenberg of other First Nation title claims.

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A new history?

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Historically, land claims have been resolved with provincial or federal lands and money.

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The Musqueam First Nation, whose community is in the south end of Vancouver on the north arm of the Fraser River, used the court to assert Aboriginal rights to land in the Lower Mainland and parts of the North Shore. Their first major deal was secured in 2008 with the province for the University of B.C. golf course lands, another parcel adjacent to the University of B.C. now under development, land near its community, the River Rock Casino lands and $20.3 million.

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The total value of the deal at the time was estimated at $250 million.

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The Musqueam formed a joint-venture company in 2014 with the Squamish and Tseil-Waututh.

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The MST Development Corp. owns or co-owns six prime pieces of property in Vancouver, West Vancouver and Burnaby valued at more than $2 billion. The lands were mostly formerly held by the federal or provincial government.

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The Snuneymuxw First Nation recently settled a land claim with the federal government. The deal includes just under one hectare of federal land in Nanaimo on Vancouver Island and $42 million for failure to protect village and marine areas promised in an 1854 treaty.

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And in a deal that was not revealed until months later, after the 2024 provincial election, the province provided the shíshálh on B.C. Sunshine Coast with $104 million over five years and six square kilometres of land. It also promised to speed up decision making and Aboriginal title for the nation, which has more than 1,700 members.

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As part of that deal, B.C. has provided an unknown amount of money to allow the Nation to try to buy undisclosed lands on a willing-seller, willing-buyer basis.

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In Surrey, the Katzie, Kwantlen and Semiahmoo First Nations have a claim for 1.2 square kilometres of farmland that was declared surplus by the federal government in 2016.

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Bruce McIvor, an expert in Aboriginal law and an advocate for Indigenous rights, argues the Cowichan ruling was not a drastic change or reversal in law, noting that claims to traditional territory often encompass fee-simple lands.

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What is different is, for the first time, a court ruled on the issue, he said.

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Now that a court has said that private (fee-simple) ownership and Aboriginal ownership can co-exist, it’s a matter of negotiation on how they can co-exist, said McIvor, the founder and senior partner at Vancouver-based First Peoples Law LLP, an adjunct professor at UBC’s Allard School of Law, and a member of the Manitoba Métis Federation.

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The Kwikwetlem First Nation band office in Port Coquitlam. Photo by Jason Payne /PNG

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“You have to resolve these things through negotiation. You don’t resolve them by ignoring the injustice,” said McIvor, author of the recently published book Indigenous Rights in One Minute: What You Need to Know to Talk Reconciliation.

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How this new ruling will play out exactly will, in part, depend on the outcomes of appeals, which could take years.

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Junger, whose firm represents the largest private property holder affected by the Cowichan ruling, says he believes it is almost irrelevant that the First Nations did not seek a ruling on the fee-simple lands.

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“They do have a declaration of Aboriginal title over those lands today, and that has all kinds of implications,” he said.

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One thing that is clear is the value of land in cases in urban areas is significant.

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According to B.C. Assessment Authority records, the Riverview lands are valued at $338 million, the psychiatric institute lands at $60 million, and the Shaughnessy lands at $49 million.

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According to Paul Sullivan, a principal with tax firm Ryan, the value of the land in the total claim area of the Cowichan is $2.5 billion.

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Despite signing a deal with the Haida Nation last year that says Aboriginal title and fee-simple land interests can co-exist, and which is at odds with its position in the Cowichan case, the B.C. government says it will vigorously defend private land rights.

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“The province’s approach to private property rights are to protect them: that’s our approach both in litigation and negotiation. Private property is not part of treaty or other negotiations, except on a willing-seller willing-buyer basis. This has been the approach for successive governments and has not changed,” Spencer Chandra Herbert, the minister of Indigenous relations and reconciliation, said in a written statement.

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The City of Port Coquitlam has also said it will protect its interests.

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“We’ve made clear our position,” says Mayor Brad West. “We’re going to vigorously defend public ownership of municipal land.”

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