Aboriginal title and land ownership is suddenly a hot topic in Canada — and won’t be settled anytime soon

Source: The Conversation – Canada

Aboriginal title pertains to the rights Indigenous groups have to land. Fee simple title refers to the most common way individuals in Canada own land. How do these different forms of title interact?

The question isn’t new. And, as I recently stated at the annual conference of the Canadian Historical Association in Charlottetown, Prince Edward Island, a recent Supreme Court of Canada decision doesn’t fix it.

The court recently said it would not hear an appeal of the Wolastoqey case — in which a New Brunswick judge said a declaration of Aboriginal title over privately owned lands “would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”

Many people were watching this case because it differed from the similar Cowichan Case that stated Aboriginal title could co-exist with fee simple title.

The Wolastoqey Case limited a declaration of Aboriginal title to Crown land, saying that for fee simple land, at best, a finding (not a declaration) of Aboriginal title could be made — signifying that title existed, and an Indigenous group that once had this is entitled to compensation from the Crown for its loss.

As I wrote earlier on the Musqueam Agreements in B.C., the question of Aboriginal title has become a hot topic in Canada, especially since some people are concerned about their private property.

Politicizing property rights

With many people talking about Aboriginal title, the federal Conservative Party has pledged to protect private property rights.

The party even connected Aboriginal title to the K’ómoks Treaty in B.C. The party acknowledges that the document was “already approved through negotiation by K’ómoks First Nation and passed by the British Columbia legislature.” But it also falsely implies the treaty was only negotiated under the federal Liberals, partly by headlining information about it under “Carney’s first treaty” and connecting all of it to the United Declaration on the Rights of Indigenous Peoples.

For the record, the K’ómoks First Nation started negotiating with the province and federal government in 2007. They reached a framework agreement in 2008, followed by an agreement-in-principle in 2012, when the federal Conservatives were in power.

In other words, the federal Conservatives helped establish the framework and preliminary version of the treaty.

Compensation questions

While the Wolasotoqey technically lost the case, the court still promised them compensation for losing their Aboriginal title to the fee simple title land.

The Cowichan case established that compensation is required to address the co-existence of Aboriginal title and fee simple title. Rather than start the compensation process, B.C. and the federal government decided to appeal the ruling.

It’s cold comfort for those worried about their fee simple title, but logically it’s probably the best response if they’re unhappy with the ruling.

Reason for Supreme Court refusal?

It’s important to note that the refusal to hear an appeal to the Wolastoqey case doesn’t set precedent or affect the ruling in the Cowichan case.

The Supreme Court does not need to give a reason for refusing to hear an appeal. In fact, it’s possible the court refused to hear the case because, as one of the original plaintiffs and the Cowichan argued in their response to the Wolastoqey application to appeal, the case involving the Wolastoqey and their Aboriginal title was still at an an early stage, especially compared to Cowichan.

After the Supreme Court declined to hear the Wolastoqey case, the Fraser Institute criticized the court, saying it “kick[ed] the property crisis down the road” instead of “giving guidance.”

And yet some people on social media proclaimed the decision to not hear the appeal as a victory. If only it was that simple.

No quick fixes

As someone who has researched Indigenous history in British Columbia for two decades, two things are clear: first, it’s nearly impossible to avoid the issue of Aboriginal title and the general dearth of treaties.

Second, there are no quick fixes to the situation. This should be obvious when you consider that both sides in the Cowichan case reportedly welcomed the Supreme Court of Canada’s decision not to hear the New Brunswick case.

Representatives of B.C. and the federal government believe they can use the Wolastoqey case to make legal arguments to appeal the Cowichan decision. Meanwhile, the Cowichan believe it will allow them to make their own arguments in response to an appeal.

Given that significant cases like Tsilhqot’in took seven years to go from the B.C. Supreme Court to the Supreme Court of Canada, the Delgamuukw case took six years and the Calder case took four years, the Cowichan case might not be settled until sometime in the 2030s.

If it makes Canadians uncomfortable that it might take more than a decade to resolve the Cowichan case, consider how it feels for First Nations in British Columbia who have been waiting 180 years so far to deal with their Aboriginal title.

A good resource for people interested in studying the issue of Aboriginal title is historical geographer Cole Harris’ book Making Native Space from UBC Press. It does not cover the Cowichan case, but it does delve into the history leading up to it.

Daniel Sims currently holds an Insight Grant from the Social Sciences and Humanities Research Council to research failed economic developments and concepts of wilderness in Tsek’ehne traditional territory (the Finlay-Parsnip watershed).

Original source: https://analysis1.mil-osi.com/2026/07/08/aboriginal-title-and-land-ownership-is-suddenly-a-hot-topic-in-canada-and-wont-be-settled-anytime-soon/