Caroline Elliott: B.C. Supreme Court takes an axe to private property rights

National Post

a day ago

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While two previous decisions by the Supreme Court of Canada recognized Aboriginal title in British Columbia (Tsilhqot'in in 2014 and Nuchatlaht in 2024), neither declared it over privately held lands as this one does.
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Even as the B.C. government has promised to appeal the decision, it has been pursuing similar policies outside the courts. The province controversially overlaid Aboriginal title on private land with its problematic Haida Nation Recognition Act in 2024. The act was specifically referenced by the plaintiffs in the Cowichan case, and the judge agreed that it illustrated how Aboriginal title and fee simple can 'coexist.'
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This is a questionable assertion given the numerous legal concerns. As one analysis explains, private property interests and the implementation of Aboriginal title are ultimately at odds: 'The rights in land which flow from both a fee simple interest and Aboriginal title interest … include exclusive rights to use, occupy and manage lands. The two interests are fundamentally irreconcilable over the same piece of land.
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While the government claims it adequately protected private property rights in the Haida agreement, Aboriginal title is protected under the Constitution, while private property rights are not. When these competing interests are inevitably brought before the courts, it's easy to imagine which one will prevail.
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The fact that B.C. Premier David Eby said last year that he intended to use the Haida agreement as a ' template ' for other areas of B.C. stands in marked contrast with his sudden interest in an appeal as a means of preserving clear private property titles in the wake of this politically toxic ruling.
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Indeed, Eby's government continues to negotiate similar agreements elsewhere, including with the shíshálh Nation on B.C.'s Sunshine Coast, even as government documents admit that Aboriginal title includes the right to 'exclusively use and occupy the land.'
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Eby's commitment to an appeal suggests he may have learned from his costly refusal to appeal a 2021 B.C. Supreme Court decision, which found that excessive development had breached the treaty rights of the Blueberry River First Nation. Eby's government chose to pay out a $350-million settlement to avoid further litigation, a move that ultimately backfired when the two parties ended up back in court.
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But for now, the consequences of the Cowichan decision have created considerable uncertainty for property owners, businesses and general market confidence. The judge's own words sum it up: 'The question of what remains of Aboriginal title after the granting of fee simple title to the same lands should be reversed. The proper question is: what remains of fee simple title after Aboriginal title is recognized in the same lands?'
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If there's one positive aspect to this decision, it's that it is so extreme, it will force the Eby government's radical Indigenous policies onto the public agenda as awareness builds over what's at stake.
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From its incessant land acknowledgements, to MLAs referring to non-Indigenous British Columbians as ' uninvited guests,' to its embrace of the United Nations Declaration on the Rights of Indigenous Peoples and its land back policies, to undemocratic land use planning processes and the overlaying of Aboriginal title on private lands, B.C. government policy has long been headed in exactly this direction.
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Now, a reckoning is coming, and it's of the government's own creation. The broader issue will soon overtake all others in the public eye, and the premier must decide now whether he'll start walking things back, or double down on his disastrous course.
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