OPINION: Understanding the Cowichan Case

BY DR. DANIEL SIMS

Special to the News

In August 2025 the BC Supreme Court ruled in the Cowichan Case, declaring among other things that the Cowichan Tribe had Aboriginal title in the Richmond area and that it could co-exist with fee simple title. To say this ruling was groundbreaking is an understatement. That being said, it is equally amazing that it took a letter from mayor of Richmond in October 2025 for most people to realize something had happened.

This short piece is based on my academic career so far, which although focused on northern British Columbia, has dealt with land claims, Aboriginal title, and treaty in British Columbia and Canada for almost two decades at this point. The goal is to provide some quick information about the ruling with regard to context, meaning, and the future. Of course, the last part will be an educated guess.

The Context

            First, this ruling is part of the ongoing land claims in British Columbia. The Calder Case in 1973 established what Indigenous peoples have always known – that they have rights to the land they traditionally lived on and these rights were not created by the Crown. These rights are known as Aboriginal title and since the Royal Proclamation of 1763 British and then Canadian law states only the Crown can acquire/deal with Aboriginal title.

Traditionally this acquisition has occurred through treaties between the Crown and Indigenous states. Since the Colony of Vancouver Island stopped signing treaties in the 1850s and the Colony of British Columbia never signed treaties, this means Aboriginal title has not been dealt with in most of the Province of British Columbia. And to be perfectly clear this has been a known issue since 1850. There are not only numerous archival records in which London and Ottawa warn the colonies and then the province that if they do not deal with Aboriginal title it will backfire on them, but when Ontario and Ottawa realized Aboriginal title had not been dealt with in all of Ontario after a thorough investigation they signed the Williams Treaties in 1923. And to be clear these investigations were looking for any evidence Aboriginal title had been dealt with in all of Ontario.

            Both London and Ottawa were quite clear in the Victorian Period that since the colonies and then the province had not dealt with Aboriginal title that other forms of title were suspect. The colonies and the province chose to ignore them. This has resulted in a complicated situation with no clear solution. On the one hand it has been firmly established that you can acquire ownership over property if the property is stolen. That being said, until the Haida Title Agreement of 2024, fee simple title was excluded from land claims unless some sort of agreement was reached with the title holder.

So, in this sense the Cowichan case did not create the concept that fee simple title can co-exist with Aboriginal title, it just established it as a precedent. We also tend to misrepresent fee simple title in Canada, particularly as result of the United States. For example, it is not allodial title, and the government retains a number of rights over it. These rights explain why expropriation is possible. What is more, many fee simple title holders only have surface rights, which means if they go down far enough they no longer own the land. The end result is that the rights to any given piece of land can be thought of a bundle of sticks, with the fee simple title holder having most of the sticks, but the Crown having a few, and someone else potentially having the sticks for sub-surface rights. In this context, the Cowichan now have some sticks.

The Meaning

            So, what does this mean? The honest answer is no one is entirely sure and quite frankly anyone who tells you they know for sure is at best delusional and at worst a liar. The whole point of excluding fee simple title from land claims without some agreement with the title holder was to avoid this sort of situation. Right now all of the parties involved in the Haida Title Agreement and Cowichan case have been told to work it out. What is more, as of the writing of this piece both the Cowichan and the Haida nations have been quite clear about wanting to remove title holders from their fee simple property. Of course there are fear mongers out there, but remember, the BC Supreme Court ruled in early August. So where were they in through the month of August and September?

The Future

            As mentioned, when it comes to the Haida Title Agreement and Cowichan case all parties involved have been told to work things out. In the case of the latter this process seems headed towards a case in BC Court of Appeals and more than it will end in a Supreme Court of Canada case.  And it is the reason why no one knows what it means. It is possible that on appeal the entire ruling or parts of it will be overturned. It is also possible that the ruling will be expanded. It is also possible that the appeal will be denied.

            James Douglas decided to stop signing treaties in the 1850s on Vancouver Island and never signed treaties on the mainland. London and after 1871 Ottawa warned the colonies and then the province that this would create problems. They were right.

Daniel Sims is an Associate Professor in the Department First Nations Studies and Adjunct Professor in the School of Education at the University of Northern British Columbia with a PhD in history. He also a band member of the Tsay Keh Dene First Nation.