The recent decision by the British Columbia Supreme Court in Cowichan Tribes v. Canada (Attorney General) should sound the alarm for every Canadian, who owns property. While the case may seem distant, focused on lands in Richmond, B.C., its implications reach far beyond the West Coast. At stake is the very foundation of property ownership in Canada: fee simple title.
In this landmark ruling, the court granted Aboriginal title to the Quw’utsun (Cowichan) Nation over lands that include areas currently held in fee simple by governments, and private entities. The court declared that these fee simple interests were invalid, where they unjustifiably infringed on Aboriginal title. In doing so, it affirmed that Aboriginal title is a senior interest, Constitutionally protected, and superior to fee simple ownership.
Let that sink in. The concept of indefeasible title, the idea that once your land is registered, your ownership is secure, has been upended. The court ruled that the Land Title Act does not shield fee simple estates from Aboriginal title claims. In other words, your registered title is not conclusive evidence of ownership if an Indigenous group can demonstrate historical occupation of the land.
This decision creates significant uncertainty for property owners, not just in British Columbia, but across Canada. It opens the door to future claims that could challenge the validity of land titles in Ontario, and elsewhere. It also highlights a troubling imbalance in our Constitutional framework: Indigenous treaty rights are protected under the Charter, but property rights are not.
The Charter’s Blind Spot
Section 25 of the Canadian Charter of Rights and Freedoms ensures that nothing in the Charter can be interpreted to diminish Aboriginal or treaty rights. These rights are further entrenched in Section 35 of the Constitution Act, 1982. Nowhere in the Charter is there a guarantee of property rights for individual Canadians.
This omission is not accidental. When the Charter was drafted in 1982, property rights were deliberately excluded. Attempts to amend the Charter to include them have repeatedly failed. As a result, Canadians enjoy no constitutional protection for their homes, farms, or businesses. Meanwhile, collective Indigenous rights are shielded from Charter scrutiny, even when they conflict with individual rights.
This imbalance is not just theoretical. It has real-world consequences. In the Cowichan case, the court rejected arguments that fee simple title holders were bona fide purchasers for value without notice. It dismissed defences based on limitations statutes and ruled that economic development and settlement were not justifiable infringements of Aboriginal title.
The message is clear: Indigenous rights trump property rights. Since property rights are not constitutionally protected, Canadians have little recourse when their titles are challenged.
What This Means for Ontario
Some may argue that this is a B.C. issue, rooted in that province’s unique history, but Ontario is not immune. There are unresolved land claims across our province, including areas where fee simple titles overlap with traditional Indigenous territories. The Cowichan decision sets a precedent that could be cited in future litigation here.
Ontario landowners, especially rural property owners, should be concerned. If courts begin to apply the same reasoning, we could see challenges to land titles in areas subject to historical claims. The very concept of secure ownership could be eroded.
This is not about denying Indigenous peoples their rights. It is about ensuring that all Canadians, Indigenous and non-Indigenous alike, are treated fairly under the law. Reconciliation must not come at the expense of legal certainty.
A Call to Action
It is time to restore balance to our Constitutional framework. Property rights must be recognized and protected. Canadians should not have to live in fear that their homes or farms could be subject to retroactive claims decades, or even centuries, after the fact.
The Conservative Party has long advocated for the inclusion of property rights in the Charter. We believe that the right to own and enjoy property is fundamental to freedom, prosperity, and personal security. It is time for Parliament to act.
We must also demand clarity from the courts and governments. The Cowichan decision suspended its declaration of invalidity for 18 months to allow for negotiations. But what happens after that? Will governments expropriate land? Will homeowners be compensated? Will municipalities be forced to return public lands?
These questions remain unanswered. That uncertainty is unacceptable.
Conclusion
The Cowichan decision is a turning point. It challenges long-held assumptions about land ownership, and exposes the vulnerability of fee simple title. It reminds us that property rights are not guaranteed in Canada, and that they can be overridden by rights that are.
Ontario landowners must be vigilant. We must demand Constitutional protection for property rights. We must also ensure that reconciliation does not come at the cost of fairness, transparency, and the rule of law.
The Charter must protect all Canadians, not just some. Until it does, our property rights remain at risk.