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By Nina Green
Is the BC government forcing private private property owners to go it alone to regain title to their properties?
It seems so.
As the news media have reported, in the Cowichan case the court refused to give notice to private property owners in Richmond that the Cowichan were suing for a declaration of Aboriginal title over the lands the private property owners hold under fee simple titles granted to them by the BC government under the province’s Land Title Act. In a pre-trial application in 2017, Madam Justice Power, the case management judge at the time, held that:
In these particular circumstances, I decline to exercise the court’s discretion to require the [Cowichan] plaintiffs to serve formal notice on private landowners.
The court’s refusal to require the Cowichan to notify private landowners that their rights would be affected by a claim of Aboriginal title meant that private landowners had to depend on the BC government to defend the validity of the indefeasible fee simple titles the BC government had granted them under the Land Title Act — titles which private landowners had always understood to mean that the BC government had granted them sole ownership.
As a result of the Cowichan decision on 7 August 2025, private landowners learned that what the BC government had assured them was sole ownership was instead an indeterminate species of ownership under which Cowichan Aboriginal title is a prior and superior right.
How did this result come about?
The upending of the rights of BC private property owners in the Cowichan decision came about because of actions taken by the BC government which directly affect how the BC government defends against Aboriginal title cases.
Canadian law on Aboriginal title is based on Section 35 of the Constitution, and on a series of decisions by the Supreme Court of Canada.
However in 2019 and 2022 the BC government put measures in place which elevate the United Nations above Section 35 of the Canadian Constitution and the Supreme Court of Canada decisions. These measures are the Declaration on the Rights of Indigenous Peoples Act, passed unanimously by the BC Legislature in 2019, and the BC government’s 2022 Civil Litigation Directives, which prescribe how BC government lawyers must conduct themselves when defending against Aboriginal title claims.
The United Nations Declaration on the Rights of Indigenous Peoples (hereafter referred to as UNDRIP) is an aspirational United Nations document which is not in itself law. However, as noted above, UNDRIP became BC Law in 2019 as the Declaration on the Rights of Indigenous Peoples Act (hereafter referred to as DRIPA).
It is important to note that UNDRIP is in direct conflict with Canadian law on Aboriginal title.
Canadian law sets out parameters under which Aboriginal title is established based on Section 35 of the Constitution and decisions already handed down by the Supreme Court of Canada.
UNDRIP, on the other hand, states bluntly in Article 26 that governments must give Indigenous peoples legal title to their traditional territories and resources, period. No ifs, ands, or buts. No constitutional requirement. No court proceedings. Under UNDRIP, which is now the law in BC thanks to DRIPA, Aboriginal title is an inherent right which does not have to be litigated.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Although the Cowichan case was decided under Canadian Aboriginal title law, the BC government was prevented from defending the rights of private property owners at trial because Article 26 of UNDRIP, which is now BC law under DRIPA, prohibits it from doing so.
This is unambiguously reflected in the BC government’s 2022 Civil Litigation Directives (copy attached), which the BC government refuses to rescind, and which caused it to lose the Cowichan case for private property owners.
Litigation Directive #14 explicitly states that:
. . . unilateral extinguishment [of Aboriginal title] is not consistent with the honour of the Crown or with the UN Declaration (see Articles 8 and 28). The Province will not advance arguments based upon the unilateral extinguishment of Aboriginal rights.
It could not be clearer. So far as the BC government fighting for the rights of private property owners was concerned, the Cowichan case was over before it started. There was no need for a trial. The BC government had already decided before the trial began that it was incompatible with DRIPA or its Civil Litigation Directives for BC government lawyers to take the position that the BC government had extinguished Aboriginal title when it granted fee simple titles to Richmond private property owners under the province’s Land Title Act. Again, as stated in Litigation directive #14:
The Province will not advance arguments based upon the unilateral extinguishment of Aboriginal rights.
Because of the BC government’s failure to argue extinguishment, Madam Justice Young issued a declaration of Aboriginal title over privately-owned properties as requested by the Cowichan, and the fee simple titles of Richmond private property owners — and private property owners throughout the province — have been thrown into a state of complete confusion.
Understandably, Madam Justice Young’s decision created a public furor which led to the decision being appealed by all parties — including the Cowichan, who, not content with a declaration of Aboriginal title over almost 800 acres in Richmond, want a declaration of Aboriginal title over the 1000 additional acres Madam Justice Young didn’t award them at trial.
However so far as private property rights are concerned, the appeal is doomed if the BC government continues to refuse to repeal DRIPA and to rescind its Civil Litigation Directives. With DRIPA and the Civil Litigation Directives in place, the BC government’s protection of the rights of private property owners in the BC Court of Appeal will be just as ineffective as it was at trial. The appeal will be lost, and private property owners’ titles in BC will be left in a state of uncertainty and confusion.
Two other cases
While the appeal of the Cowichan case is pending, other Aboriginal title cases, some involving private property, are ramping up. Two have recently attracted media attention. The first involves Aboriginal title at Kingcome Inlet, and is said to build on the ‘landmark 2025’ Cowichan decision. In a news story on the Kingcome Inlet claim, Premier David Eby is quoted as saying that ‘private property is non-negotiable’:
Celebrated by many, the Cowichan decision set off alarm bells for B.C.’s NDP government and others who said they were worried about the integrity of private property rights.
Premier David Eby was not available for comment but a spokesperson for his office pointed to a recent speech in which Eby described “bright lines” the government would not cross when it comes to negotiations with First Nations.
“For our government, private property is non-negotiable. People’s homes and businesses are not bargaining chips. Full stop. We will challenge court decisions and we are challenging a court decision that blurs that line,” he said at an industry event in Prince George earlier this month.
“But we cannot and we will not abandon our work to build lasting partnerships that support good jobs and benefit everyone. It is really the only path forward for this province.”
Premier Eby states that ‘private property is non-negotiable’ and ‘people’s homes and businesses are not bargaining chips’, yet he refuses to repeal DRIPA and insists on retaining Litigation Directive #14 which states that the BC government will not argue that Aboriginal title was extinguished when the government granted fee simple titles to private property owners under BC’s Land Title Act. It is impossible to reconcile Premier Eby’s contradictory positions.
The other case which has made the news in recent days involves the Kamloops Band’s assertion of Aboriginal title over the entire city of Kamloops and a huge swath of the surrounding area. The case had been dormant in the court system since it was filed in 2015 (see attached Statement of Claim), but was recently reactivated when Chief Rosanne Casimir of the Kamloops Band gave a 52-minute speech at a Reconciliation Breakfast at the Association for Mineral Exploration British Columbia conference in Vancouver on 28 January 2026. Although the full text of Chief Casimir’s speech is not available, it appears from news reports and social media that she proposed that the Kamloops Band’s unprecedented assertion of Aboriginal title over an entire BC city be settled on the basis of a 50/50 sharing of revenue. It seems obvious the Kamloops Band’s aggressive promotion in 2026 of a claim that it had not pursued since 2015 was encouraged by the recent Cowichan decision.
Montrose Properties seeks to reopen the Cowichan case
In light of the BC government’s refusal to defend the rights of private property owners because of its commitment to DRIPA and its Civil Litigation Directives, it has fallen to private property owners to defend their rights themselves.
Few, if any, private property owners can afford to do so, given the exorbitant cost of such litigation.
However a Richmond company, Montrose Properties, has stepped up to the plate. On 23 January 2026, Montrose filed an application for an order to reopen the Cowichan case. The application is slated to be heard by Madam Justice Young in Supreme Court in Victoria on 11-12 February 2026.
The application and supporting affidavit, available in Montrose’s media release, indicate that in addition to a request that Montrose be added as a party, the following order is sought:
3. An order re-opening the trial prior to entry of Order after Trial to permit Montrose Industries Ltd., Montrose Property Holdings Ltd. and Ecowaste Industries Ltd. to file limited submissions and supporting affidavit evidence confined to the issues identified below:
(a) the question of whether it would be appropriate for the court to make findings and/or declarations of Aboriginal title over Montrose Lands in circumstances where Montrose was not a party during the 513 days of trial;
(b) the question of what provincial laws would apply to the Montrose Lands if the Aboriginal title exists over it;
(c) the finding that the exercise of Aboriginal title and fee simple interests can coexist, but may not be exercised in their fullest form, and that the exercise of either will require modification or limitation;
(d) the finding that any infringement of Aboriginal title that occurred through the issuance of fee simple titles in respect of the Montrose Lands is unjustified; and
(e) the finding that Aboriginal title was not extinguished through the issuance of fee simple title and related legislation. [bolding added]
In other words, Montrose, as a private property owner, is seeking to have the case reopened to argue that Aboriginal title was extinguished by the BC government’s grants of indefeasible fee simple titles under the Land Title Act — the argument the BC government did not allow its lawyers to make at trial because of its commitment to DRIPA and its Civil Litigation Directives.
BC private property owners are thus being forced to go it alone, and to hire lawyers and at their own expense make the arguments the BC government deliberately did not make on their behalf at trial.
For a detailed analysis of the Cowichan decision and why it was wrongly decided, see Peter Best’s C2C article, and the attached PowerPoint presentation.
Thanks for reading. For more from this author, read Are there problems with the evidence in the Cowichan case?
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The men who framed our constitution in 1867 envisioned a country in which citizens had equal rights. Indians would be temporarily segregated to protect them while they acquired the skills to live in the modern world. Tribalism was to be done away with. Indians were temporarily to be “wards” and “in tutelage”, after which they would have all the rights of any citizen - and except for the very limited treaty rights - no more. The Supreme Court and post-RCAP politicians completely reversed this sensible plan, and restored tribalism with “First Nations” UNDRIP and now Canadian Indians are loyal to some vision of “indigenous peoples” and no longer is their first loyalty to Canada.. Our courts and politicians are encouraging them to do so. This is Gad Saad’s “suicidal empathy” in action. Thanks Nina Green for doing this excellent work. If only our politicians and judges would listen.
You can count on the NDP for nothing except to mess things up - serious things - time and again. Sometimes inadvertently through incompetence; sometimes deliberately because that's their policy. They are a danger to Canada. Seriously.
Furthermore, our entire judiciary is rotting in plain sight: property rights under assault, differential criminal sentencing for races with priority, weak criminal sentences generally, ...