Are Canadian Courts Fit For Purpose?

With the Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490 (CanLII) decision, the British Columbia Supreme Court cast aside nearly a millennium of certainty regarding land ownership. It did this by severely limiting the rights inherent to fee simple title. It additionally declared invalid land titles under the Province’s Torrens land registry system (undermining the provincial guaranty inherent in Torrens systems). Given the nature of the claim, namely ownership and development of land that occurred in the absence of a formal treaty, this decision has nationwide implications. In reaching its decision, the court further disregarded nearly a millennium of jurisprudence dating to the Magna Carta, including by failing to provide affected non-parties with either notice or a chance to be heard. Given the process employed to reach this decision and its widespread implications to property rights and government legitimacy in Canada, it begs the question of whether Canadian courts are fit for purpose?

Over the last several decades, it has become fashionable to romanticize and reimagine North America and Canada prior to European colonization as a kind of new Eden. Historically, it was to large extent an untamed and sparsely populated wilderness whose tribes (which were of varying sizes and at varying stages of development) engaged in inter-tribal warfare and particularly on the west coast, widespread slavery (with slaves comprising up to one quarter of the native population). Some tribes also practiced ritualized killing and human sacrifice, with even the British Columbia Supreme Court noting that at times, the Cowichan Tribes’ territory was marked by ”heads on sticks.” Such actions were incompatible with nineteenth century English norms, as reflected by the Abolition of Slave Trade Act 1807 or the Slavery Abolition Act 1833.

Starting in the mid 1800’s, British Columbia saw an influx of European settlers. The Europeans and natives were in competition for land, which resulted in frequent clashes, with the Indians requiring protection from the settlers and vice versa. To ameliorate this, it had been the practice of the B.C. Crown (through Governor Douglas) to purchase native lands, initially via use of funds from the Hudson’s Bay Company, which by virtue of its charter, was given de facto government power over much of what is now Canada. However, as that Charter came to an end, the Crown was want of funds such that payments ceased. Interestingly, the then Governor had both been instructed by the British Government to distribute land (done via a series of proclamations) and instructed that the acquisition of title was purely a colonial interest that must not burden the British taxpayer. Moreover, it was noted that dealing with the native Indians was of so local a character that it must be solved by the Governor’s knowledge and expertise. Accordingly, lands (reserves) were thereafter set aside for natives over the ensuing decades, including after B.C. joined Confederation in 1871 through the Indian Reserve Commission, with the remainder of the Province opened up for investment and development.

Likely due to the fact that the BC government did not recognize aboriginal title when it joined Confederation, almost all land in BC (including Vancouver) was never formally ceded to the Crown via treaty, such that almost all land in the Province is subject to often overlapping land claims, as shown by the ATRIS image below for Denman Island. Factually, the Crown exercised complete dominion over most land (including by various Proclamations from the colonial government prior to joining Confederation), with the Richmond land affected by the Cowichan Tribes claim being granted by the Crown between 1871 and 1914.

For more than one hundred years post Confederation, the Federal and B.C. governments denied aboriginal title. To further this position, s. 141 of the Indian Act was amended in 1927 to prohibit the receipt of funds (including by lawyers) from an Indian to pursue claims absent permission of the Minister of Indian Affairs and Northern Development (after the government had been embarrassed internationally by indigenous claims for sovereignty in Ontario along with separate claims to all of British Columbia).

The legal landscape in Canada shifted abruptly with Calder et al. v. Attorney-General of British Columbia, 1973 CanLII 4 (SCC). Similar to Cowichan Tribes, Calder involved a claim for aboriginal title for land that had not been formally ceded (though in that case the land was remote). While Calder’s claim was denied on technical grounds, it is notable in several respects. Initially, it recognized the doctrine of discovery, essentially that title was held by whichever European sovereign discovered and exercised power over the territory. Next, it recognized that the sovereign had the power to grant land, even land possessed by natives and that such title would pass to the grantees, subject to any existing Indian occupancy. It was further recognized that such occupancy rights could be extinguished in a number of ways, including by purchase, the sword, the exercise of complete dominion adverse to the right of occupancy or otherwise. Despite this, a plurality of the court held that to extinguish Indian title, the government’s intention needed to be clear and plain. That reasoning was adopted in R. v. Sparrow, 1990 CanLII 104 (SCC) (which dealt with fishing rights). It was then expanded by the Ontario Court of Appeal in Chippewas of Sarnia Band v. Canada (Attorney General), 2000 CanLII 16991 (ON CA) which held that only the Federal government could extinguish aboriginal title (prior to 1982) but that same could only be done by the use of clear and plain language.

Subsequent to Calder, the Charter was adopted. In contrast to the written constitutions of most other liberal democracies, there was no explicit protection included of property rights (at least for most Canadians). While the Charter provided that all individuals were equal under the law, it specifically allowed programs and activities to ameliorate conditions of disadvantaged groups. Section 35 further affirmed the existing aboriginal and treaty rights of the aboriginal people. This has subsequently come to be interpreted as barring the extinguishment of aboriginal rights and permitting regulation and infringement only where doing so can be justified.

A generation later came the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Canada implemented domestically in 2021. This provided, among other things, an indigenous right to self determination (Article 3), self-government and a ways and means of financing same (Article 4), redress for any action which dispossessed them of lands, territories and resources (Article 8), to the improvement of their economic and social conditions (Article 22), to the lands, territories and resources which they have traditionally owned, occupied or otherwise acquired (Article 26) and to restitution for lands that were confiscated, taken or occupied (Article 28). UNDRIP’s preamble, incorporated into the enabling legislation also decried the discovery doctrine, which formed the foundation of economic development and economic relations over the last few hundred years.

Against that backdrop, the Cowichan Tribes sought aboriginal title to 1,846 acres of land (less than 7.5 km²) in Richmond, that was owned by the Federal Government, the Port Authority, the City of Richmond and several hundred non-parties, whose title dated to after the Province had entered Confederation. After trial spanning 7 years, 513 court dates and with 86 counsel listed in the Reasons (most likely paid via the public purse) the court found the Cowichan Tribes had established aboriginal title to the land, with the question then being what, if anything, remained of fee simple title? Interestingly, in just over 40 years, the concept of aboriginal title had expanded from a usufructuary right (to hunt and fish as their ancestors had) to one superior to fee simple title.

(image c/o CBC.)

While the court acknowledged that its decision about land (in rem) would be binding against non-parties, it nonetheless elected not to require notice be given to affected non-parties. Ignoring basic tenets of natural law, as the court did, it did this in spite of the existence of an Ontario Superior Court decision on point to the contrary, Kakeway v. Canada, 1988 CanLII 4816, with the Ontario Superior Court providing: “[t]his defies all rules of law and equity, that a person’s rights may be adversely affected without notice, or without having the specific allegations on which the claim is based, brought to his attention to enable him to defend the claim, and would result in a complete denial of natural justice.” Ultimately, the British Columbia Supreme Court’s reasoning was apparently that the interest sought was unique (sui generis) and any consequences unclear.

Post ruling, the unclear consequences quickly came into focus. The Cowichan lawyer went on record stating that any fee simple owner who attempted to sell would require the consent of the Cowichan. Significant commercial projects are in jeopardy and there have been reports that lenders are failing to renew mortgages. The Mayor of Richmond belatedly advised affected homeowners that the court had made a decision that may affect the status and validity of land ownership. Due to the uncertainty, at least one homeowner dropped their listing price 29%. Even Alaskan tribes have weighed in, to demand a say on Canadian resources projects going forward.

That the decision does violence to the common law, which is intended to promote stability and consistency should also be noted. As recently as 2000, the Supreme Court of British Columbia recognized fee simple title to be: “An estate of virtually infinite duration conveyed or granted absolutely to a person and his or her heirs forever; also known as FEE SIMPLE ABSOLUTE. There are no conditions, restrictions, or limitations on the holder of such an estate, and the property is freely alienable or hereditable.

The holder of the estate is known as the tenant in fee simple (see tenant) because, technically, he or she is merely a tenant of the Crown, though he or she has the highest and most extensive estate possible (emphasis by author). However, to all intents and purposes he or she is the absolute owner. . .” In reaching such holding in 2000, the court essentially acknowledged that it followed the property law of the English speaking world as it had been dating back to at least 1290. In contrast, by formally adopting the “clear and plain” test regarding extinguishment, the British Columbia Supreme Court has held a 19^th century colonial government to 2025 standards, effectively rendering our laws and economic relations entirely arbitrary.

In moving forward without clearly necessary parties, the court was further deprived of basic financial information, either as to the value of the unimproved land at the time, or financial impacts at present. Specifically, land in the 1800’s was very cheap, with Governor Douglas wanting, but lacking the £3,000 in funds to buy Vancouver Island in 1861 (the equivalent of around $900,000 CAD today). Shortly thereafter, the United States acquired Alaska in 1867 for $7.2M USD (equivalent to around $150M USD today), which worked out to about 2 cents per acre (around 40 cents per acre today), though even at that price the purchase was derided as Seward’s Folly. Likewise, via the 1870 Deed of Surrender, the Hudson’s Bay Company received only £300,000 (the equivalent of around $90,000,000 CAD today), for an area comprising more than one third of modern Canada.

To the extent the court considered financial information, it had little relevance to the dispute before it. For example, the court noted that $4.5 billion in GDP was attributable to the Port of Vancouver. Of course, the court did not tease out what portion of that was attributable to native labor over the years versus non-native labor, or the respective capital contributed by each group or the improvements made to the land itself (i.e. the betterment concept from its prior undeveloped and unserviced condition). The court was almost certainly also in the dark that residential property comprised almost 50% of B.C. residents net worth or that real estate contributing nearly 20% of provincial GDP.

To the extent our courts have been influenced by shifting political winds, they have handled it much less adroitly than in the US. By way of example, after the U.S. Supreme Court ruled that law enforcement must warn people of their right to remain silent (Miranda rights), Congress sought to overrule same via statute. When the constitutionality of that statute reached the Supreme Court several decades later, it was struck down, with the court holding that to not do so would disrupt routine police practice and that the warning had entered the national culture. Home and property ownership is no less part of Canadian culture, but then unlike in the US, there are very few checks on Canadian Judges and apparently for most, little protection of property rights.

If allowed to stand, this decision calls into question the legitimacy of the government (who initially granted the land to bona fide purchasers for value and via lower level of government has been levying taxes). It also effectively condones the imposition of a caste system in Canada, whereby natives are entitled to the redistribution of property owned by residents (or compensation in lieu thereof), with residents not even being entitled to be heard, as the court uses its “wisdom” to attempt to reorder more than one hundred and fifty years of economic relations. While the court seemed to be of the belief that its pronouncement would foster reconciliation, this was belied by the angry Town Hall response of residents who did not appreciate the court’s arbitrary and confiscatory impairment of their property rights in the name of “reconciliation.”

Far from healing old wounds, the court’s ruling has ignited fresh resentment, eroded public confidence in the courts and judiciary and left ordinary Canadians wondering whether the rule of law protects everyone equally – or only those the court, in its self-proclaimed wisdom, deems deserving. If this is the new face of reconciliation, it risks pitting one citizen against another, fracturing the very society it had hoped to mend.