Cowichan ruling dominates UBCM session

On Sept. 25, 2025, delegates at the Union of BC Municipalities convention crowded into one of the busiest legal panels of the week (watch it here). The subject: the Cowichan Tribes decision (2025 BCSC 1490), a nearly 1,000-page judgment that recognized Aboriginal title over 800 acres of land along the Fraser River in Richmond.

The ruling declared that some lands held by Richmond and Canada were defective and invalid — though it suspended that declaration for 18 months to allow for negotiations. Crucially, the court emphasized that private homeowners were not being displaced, but it did find that Aboriginal title and fee simple ownership can legally coexist.

David Rosenberg, KC, who acted for Cowichan, walked delegates through the legal and historical background. He underlined that the case was brought against the Crown, not private owners, and that Cowichan deliberately did not seek to challenge private fee simple titles.

The decision, he said, must be seen against 150 years of history in which Cowichan lands were sold out from under them, despite promises of justice made by colonial officials. The case was about reconciling pre-existing Aboriginal societies with Crown sovereignty. Rosenberg stressed that the declarations are measured, grounded in history, and provide time for governments to negotiate solutions.

Robin Junger: property rights and financial risk

In his opening statement, Robin Junger of McMillan LLP focused on the attention the case has drawn in relation to private property. He stressed respect for the trial and for Cowichan’s victory, but argued that there are legitimate issues that must be faced squarely.

• Coexistence of titles: He pointed to the court’s finding that Aboriginal title and fee simple can coexist, even though both grant rights to occupy, use, and benefit from the land — a conclusion he finds conceptually difficult to reconcile.
• Land title indefeasibility: He underscored the ruling that BC’s land title system is not fully “indefeasible” in the face of Aboriginal title, because Aboriginal title is prior and superior.
• Financial markets: Junger cautioned that lenders and bond analysts are already asking questions, and their risk assessments may change regardless of judicial caveats. “You don’t get to say, ‘You’re overreacting,’” he said.
• Procedural fairness: He noted that private owners were not parties to the case and received no notice, raising questions about fairness.
• Broader context: He tied the ruling to BC’s 2024 Haida Nation recognition legislation and the Province’s decision not to argue extinguishment of Aboriginal title, both of which signal a wider jurisdictional realignment.

“The real question is, how far did the limiting go?” Junger concluded.

Municipal impacts of Cowichan ruling

Local government lawyer Reese Harting pulled the discussion “down to ground.” He flagged immediate implications for municipalities:

• Infrastructure: Some Richmond lands struck down in the ruling are dikes and drainage works. Who now owns, maintains, and bears liability for them?
• Taxation: If federal Port Authority lands are invalidated, Richmond may lose payments in lieu of taxes — a direct budget hit.
• Approvals: If Aboriginal title and fee simple both exist on the same land, which owner has standing to apply for permits or rezonings?
• Services: Local governments provide policing, fire protection, waste management, and flood protection. Who pays for these services if tax jurisdiction shifts?

Key takeaway

The panel agreed on two points: the Cowichan case is measured, not catastrophic, and it is also massive in significance. Appeals are already underway, and the process could take seven years or more. In the meantime, municipalities, lenders, and governments will be navigating uncharted territory.