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.