Indigenous Title vs. Private Property: The Cowichan Tribes Decision Explained
The foundation of property ownership in British Columbia faces a potential earthquake with the landmark Cowichan Tribes decision. After what may be Canada’s longest trial—spanning over 500 days—the judge delivered an 800-page ruling that could fundamentally alter who truly owns land throughout the province.
Michael Mulligan breaks down this complex legal battle by explaining the collision between two powerful forces: BC’s Torrens property system and Aboriginal title claims under Section 35 of the Constitution. The Torrens system provides what legal experts call “indefeasible title”—conclusive proof of ownership registered with the government that enables secure property transactions and mortgage lending. But the judge has ruled that Aboriginal title is “a prior and senior right to land” that can exist simultaneously with registered property ownership, potentially superseding private property rights despite the Torrens system’s guarantees.
The implications are profound. If Aboriginal title claims—which cover virtually the entire province, often with overlapping claims from multiple Indigenous groups—can override registered property ownership, what happens to homeowners who’ve worked their entire lives to pay for their properties? The economic consequences could be equally severe, as mortgage lending depends on the certainty of ownership. As Mulligan observes, the legal system ultimately depends on public acceptance: “If I tell you that the house you worked for and paid for is no longer yours, I don’t know that that’s generally going to be accepted.” With BC already announcing its intention to appeal, this case will likely progress through higher courts, where judges must balance constitutional obligations to Indigenous peoples with maintaining a functional property system. Listen now to understand what’s at stake for every property owner in British Columbia.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Aug 14 2025
Adam Stirling [00:00:00] Time for Legally Speaking. Hey Michael, are you with us?
Michael Mulligan [00:00:03] I certainly am. I’m direct from Pompeii, Italy, and it looks like we managed to get a good connection going through the miracle of the cell phone network.
Adam Stirling [00:00:11] That’s a solid connection. Anyway, interesting story on our agenda today because I know that you and I have talked in the past about various complicated lengthy legal issues involving Indigenous rights and title and the Cowichan Tribes issues in the news. As you well know, the province is already announcing they’re going to appeal. Can you help us understand exactly what’s happening here and how it relates to the idea of private property?
Michael Mulligan [00:00:35] Sure. Well, first of all, it’s a huge decision. I mean, I think the case may have set a Canadian record for the longest trial with some 500 plus days of trial and this enormous 800-page decision that came out of that. And some, and the case involved a claim, uh, for a whole bunch of property over, in, Richmond and interestingly, as with many of these things, there’s a, there was a conflict of part between different Indigenous groups claiming the same territory. So that’s a broad background to it. But part of what’s in this case has caused some very serious concern about what implications it could have more broadly in terms of property ownership in British Columbia. And to appreciate all of that, it has to start with an explanation for why it is you own property in British Columbia, right? Why do you, why do you own your house if you own a house? And the answer to that in BC and most Canadian provinces, not all, but most, is that we have a version of what’s called the Torrens system, and Torren system is a government registry, which lists who owns real property. And the core concept with the Torrens system, is it grants what’s referred to as indefeasible title to property, its conclusive ownership of the property. And what’s different about that is that in places where you don’t have that sort of a system, you would, your claim to ownership of property would depend on the claim of ownership, the last person had and the person before them and the person before them. And so you would need to go back and look and say, can I purchase this property from you? You would need to be assured that that person has legal title to it and how did they get that? And so you’d have to go back through the chain to try and figure it out. The Torrens system does away with that completely. And it says that if you’re listed as the owner of property in British Columbia or other places that have that, that is conclusive proof you own the property. Now that matters both in terms of the complications of transferring property, but it also has real implications for things like, let’s imagine you want to get a mortgage to purchase property or build a home or do something. The person lending money on the strength of the mortgage needs to be assured that you in fact own the property so that they could, if you didn’t pay them back, collect, right?
Adam Stirling [00:03:09] hmm.
Michael Mulligan [00:03:10] And if that’s uncertain, you’re also not only would you have trouble potentially selling something. But you may have trouble borrowing against it or your cost of borrowing will be higher because the lender will be uncertain about whether, you know, can you really be sure you own this thing? And so that’s the Torrens system. And so this is how interfaces with this, Cowichan decision. We have in Canada since 1982, provision section 35 of the Constitution Act. And it says this, the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. There’s some more detail below that, but that’s really the, that’s what it says. What does that mean? Right?
Adam Stirling [00:03:54] Yeah.
Michael Mulligan [00:03:55] It’s really very ambiguous. And so since 1982, courts have been going on in trying to interpret, well, what all does that mean? And I should say as somebody who works in the sausage factory at the courthouse, that sort of thing goes on all the time, in terms of judges trying to, you know, specify what the law is. And there are some areas, for example, in civil law, where much of the law, is that. It’s sort of the common law, built up over hundreds of years, with things like, well, what do you need to have a contract, and what do you, in this particular circumstance, or what are the elements of a court? You know, all these things have been developed slowly over time, and that’s how common law works. And one of the, I should say, sort of duties of the law is that generally the law conforms with what most reasonable people who would think carefully about an issue would think, yeah, that’s probably how that should work out. That seems like a fair thing or sort of how contract law works or, you know, tort law in terms of putting somebody right, if you’re causing some harm or damage, it all sort of generally conforms with, yeah that seems like it’s a fair outcome and how people expect their lives to be ordered. This particular case has raised real concerns now that you know that that background of the Torrens system, why you own your property and that provision. And here’s the heart of it. The judge in this case says, “I agree that Aboriginal title is prior and a prior and senior right to land. It is not an estate granted by the Crown but rooted in prior occupation. It is constitutionally protected. The question is what remains of the question of what remains of Aboriginal title after the granting of fee simple title to the same land should be reversed. The proper question is, what remains a fee simple title after Aboriginal title is recognized in the same lands.” And then it goes on and essentially what the judge finds is the fact that the person, a person may be a registered owner of land and the fact that the Torrens system says that’s conclusive proof you own it. You can’t go behind that. The judge found that no Aboriginal title can still exist for that same land. Now, one of the great uncertainties about that is what is Aboriginal title that hasn’t been clearly defined. Many of the concepts here are, have just been judicially invented since 1982 because the provision we’re dealing with says, right, the existing Aboriginal treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. So all of the law that’s developed since then, all this concept of Aboriginal title, concepts of, you know, the honour of the crown, all these things which have been found in the law since then.
Adam Stirling [00:06:47] mm hmm.
Michael Mulligan [00:06:48] Are all judge created all of it. And one of the worries here is that this outcome, and each judge when they get one of these cases. It is looking at the prior decisions and trying to come up with a rational decision that fits within the previous decisions. And it’s all fine as far as all that goes. That’s what they’re of course trying to do. But the challenge here is that the outcome of the accretion of sort of principles and ideas and things that have been built up since 1982. If this case remains the law, what that may effectively mean is you don’t own your house anymore. Because you’ve got Aboriginal claims that virtually cover the entire province several times over.
Adam Stirling [00:07:28] Yes.
Michael Mulligan [00:07:30] And either Aboriginal title means nothing, right? You know, if it means nothing they can’t, the Aboriginal groups couldn’t use the land or do anything with it. Probably that’s not what’s intended eventually. It means nothingness. So if it means something and you’ve gotten this conclusion that it takes priority over the fee simple ownership of land. It doesn’t matter that you bought it for value, that the chain of people that have owned it for, you know, very long time. It could simply be, that can be rendered meaningless. And that’s the natural conclusion of this decision. And while the …to this particular case, we’re careful not to try to actually give this area claim includes things like farms and houses and so on and so they were because the conclusion of that would be, I think probably completely contrary to what most people would think of as a sort of the expected outcome of this sort of dispute, right? And unlike, you know, many areas where you say, yeah, that’s the answer to how a contract works. That sort of would accord with how you think that would work if you’re buying yourself a car or doing something.
Adam Stirling [00:08:45] hmm.
Michael Mulligan [00:08:45] If the outcome of all of this, the judicial interpretation of that terminology or that general phraseology in Section 35 results in a conclusion that that house you worked your whole life to pay for is not yours. Somebody else is free to come in and set up in the backyard or move into your living room. If that’s the outcome, and that seems to be what the judge has found here by putting together these sort principles in these other cases since 1982, that is a very problematic outcome.
Adam Stirling [00:09:21] Yeah.
Michael Mulligan [00:09:21] Because not only would it undermine sort of the economic functioning of the province as a whole, because first of all, people wouldn’t be able to reliably own property. People that have worked and paid for things would no longer get the benefit of them. And furthermore, going forward, if you were a lender, are you going to lend somebody money on the strength of title, which could be meaningless because three or four or more Indigenous groups are claiming that they have title to that land, whatever that means, probably not. And so it is potentially very, very broad, reaching implications, potentially seriously destabilizing, implications and it is exactly that. It’s just sort of the next accretion of sort of, well, these are the principles said by the Supreme Court of Canada in this case, you put those together, it must mean this, it can’t mean that and then you wind up with this result. Which unfortunately, in my view, is not one of those results that would generally accord with what people would think. Yeah, that’s about how that should work.
Adam Stirling [00:10:26] Yeah.
Michael Mulligan [00:10:26] it’s a result that I think generally would be the opposite of that. And one of the other big picture concerns that. As somebody who’s again, working in a sausage factory is that the justice system works because people generally agree with the outcomes, right? In a broad sense, you might not agree with a particular case, but you know a case there and that’s how that works. This is the sort of decision, which if it were not reversed on appeal, and it was carried to its logical conclusion, would not be that.
Adam Stirling [00:11:00] No.
Michael Mulligan [00:11:00] And that’s very troublesome from the perspective of through the rule of law and respect for judicial decisions, because I would imagine that this would not, would not be something that’s likely to be generally accepted by the population. If I tell you that that house you worked for, paid for, is no longer yours. I don’t know that that’s generally going to be accepted. And so that’s really the heart of it. That’s what the Torrens system is and the judge in this case has found that despite the fact that that legislation says that’s yours and no looking behind that, has found that, oh, there’s a way to look behind that. We’ll have to wait and see, of course, what happens with the appeal to the Court of Appeal and eventually probably to the Supreme Court of Canada, but everyone involved there, I think, should also just be aware that, you know, even if something might make logical sense or, you know, fit together with other previous decisions of the court, if the eventual result is a result that would not be broadly accepted by the public, it’s not going to work. Because at the end of the day, you know, we’re just people up there in robes and ties and stuff. It’s not going to work unless you have a decision which is going to be broadly accepted. I don’t know that this outcome is likely to be that. So that’s why there’s been concern about it. That’s what’s happened in this case, and we’ll have to wait and see what happens of course with the one or two levels of appeal, whether this gets reversed in some fashion or whether they, the courts decide to proceed in this way. So, that’s what is going on in the appeal.
Adam Stirling [00:12:39] All right, Cowichan Tribes decision under appeal, according to the Province of British Columbia. Quick break. Legally speaking continues after this.
[00:12:47] COMMERCIAL.
Adam Stirling [00:12:47] Legally Speaking, continues Michael Mulligan from Mulligan Defence Lawyers. We’ve got just over four minutes left in today’s segment. Michael, how shall we spend them?
Michael Mulligan [00:12:55] Sure. I think there’s another case where people may have some interest in rising out of a door dasher and how that fits in with arbitration. And the case involved a fellow who was a dasher, not dashing, but a dashing which you can sign up for on an app and then you do deliveries and get paid for that work. And this fellow had signed up in 2022 to do that and had done it for a couple of years. And then for reasons unknown or at least not specified this decision. DoorDash decided to cancel his account so he could no longer be a door dasher. And that prompted the fellow to sue DoorDash for a variety of things, including for some reason he was asking for 1200, 12,960 hours of work at $50 an hour for, he wanted $648,000 as long as along with wearing plus wear and tear in his car, various other things.
Adam Stirling [00:13:51] Wow.
Michael Mulligan [00:13:52] And he specified that he was suing for uh, as a result of breaches of the charter rules against discrimination, hate and defamation. So anyways, that’s what he was suing for. But the particular decision dealt with the applicability of an arbitration provision. And the way that worked in this case, as in many cases we’ve agreed to in software and app or something, you have to scroll through and say, I agree, I agree, I agree, to a bunch of things if you wish to be able to continue to sign up to do anything. And this particular agreement had in it an arbitration clause, which said that both parties agreed to, if they had any disputes, settle it by way of arbitration rather than going to court. One of the interesting things here in that clause, and it probably has to do with DoorDash being sensitive to their position that people who do that work are not employees, they’re independent contractors and they’re free to negotiate things, they actually say here you can opt out of the arbitration provision, there’s a way you can do that if you want write in and say you wish to opt out of it. This fellow hadn’t done that. And so DoorDash applied to have the court claim, struck out on the basis of how the Arbitration Act works. And that act essentially says that if you establish some basic things, like there was an arbitration agreement, one of the parties has started an action. The other party hasn’t taken steps in the action. Like you can’t, you know, get into day five of the trial, realize it’s not going well and say you wish to go arbitration. You haven’t done anything. You can apply for the court action to be stayed and discontinued. So the matter would be sent to arbitration. And that’s exactly what happened here. The result is, yeah, it appears to be an arbitration agreement. Was an opt in, opt out of it. You both appear to be parties to it. DoorDash hasn’t taken any steps in the litigation. And so they’re applying to have it struck out. That is to say the court claim. And that was the outcome. And so people should be aware of this when they’re, you know, scrolling through those, you know contract, provisions, clicking yes, yes, yes. In some cases you may actually have a remedy at the time to say, I wish to be out of this, but if you don’t, you may wind up agreeing to all sorts of things that could have implications for you later. Remember, Seinfeld used to joke, say people scroll to you could insert the entire text of Mein Kampf into the, you know agreement. The person’s go to is start tapping, I agree, I agreed, I agree, and that’s probably not too far from the truth. So that’s something to be aware of that, how that arbitration act works in British Columbia, be careful about what you’re clicking and signing on because the result could be, you won’t be able to advance your charter claim for 12,000 hours of work for DoorDash. If you clicked, I accept.
Adam Stirling [00:16:42] Michael Mulligan with Mulligan Defence Lawyers. Legally speaking, second half of our second hour every Thursday. Thank you so much.
Michael Mulligan [00:16:49] Pleasure as always. Thanks so much, it’s always great to be here.
Automatically Transcribed on September 3, 2025 – MULLIGAN DEFENCE LAWYERS