INSIGHTS

Aboriginal Title and Private Property: Two Provinces, Two Different Paths

September 15, 2026Aboriginal Law · Property

Author: Nir-Nissim Elkouby

Two 2025 judgments addressed a difficult question: can Aboriginal title exist over land that the Crown later granted as private property?

In Cowichan Tribes v. Canada (Attorney General), the British Columbia Supreme Court concluded that Aboriginal title and private ownership can legally coexist.[1] In J.D. Irving, Limited v. Wolastoqey Nation, the New Brunswick Court of Appeal concluded that their central features are incompatible.[2]

The contrasting results reflect two approaches within the common law. British Columbia emphasized the historical priority of Aboriginal title, while New Brunswick emphasized the exclusive control associated with both forms of title.

The legal foundation

Aboriginal title does not originate in a Crown grant. It arises from an Indigenous people’s occupation of land before the Crown asserted sovereignty.

In Calder, the Supreme Court of Canada recognized that Indigenous land rights existed independently of colonial law.[3] In Guerin, the Court described the Indigenous interest in land as unique and confirmed that the Crown’s dealings with Indigenous land can create special obligations.[4]

Later, Delgamuukw established that Aboriginal title is a collective right to the land itself. It includes the rights to possess the land, determine how it will be used and receive its benefits.[5] In Tsilhqot’in Nation, the Supreme Court confirmed that Aboriginal title burdens the Crown’s underlying title. Once title is established, governments generally require either the Indigenous nation’s consent or a constitutionally sufficient justification before using the land.[6]

These decisions explain the nature of Aboriginal title, but they do not conclusively settle what happens when the Crown has already transferred the land to private owners.

British Columbia: reconciling continuing interests

Cowichan Tribes concerned Tl’uqtinus, a historic Cowichan village located in what is now Richmond, British Columbia. The court found that the Cowichan plaintiffs had established Aboriginal title to part of the claimed area, including land subsequently granted in fee simple.[1]

The court began with historical priority. Aboriginal title existed before the Crown issued the later grants. Because the Crown could not convey more than it lawfully possessed, granting fee-simple interests did not automatically eliminate the earlier Indigenous title.

Neither form of title is absolute. Private ownership is subject to zoning, taxation, expropriation and other legal restrictions. Aboriginal title has different limits: it is collective, can generally be transferred only to the Crown and cannot be used in ways that would substantially deprive future generations of the land’s benefit.[5][6]

On this reasoning, Aboriginal title and private ownership can coexist. Their practical exercise must be reconciled through negotiation, constitutional justification and carefully designed remedies.

This approach prevents the Crown from effectively extinguishing Aboriginal title merely by transferring the land. Its weakness is uncertainty: recognizing coexistence does not immediately tell owners, Indigenous nations or governments which interest will prevail in every land-use dispute.

New Brunswick: exclusive rights cannot coexist

The Wolastoqey litigation concerns an Aboriginal title claim covering Crown land and extensive privately owned territory. The 2025 appeal was preliminary and did not determine whether the Wolastoqey had proved Aboriginal title.[2]

The New Brunswick Court of Appeal focused on the content of the competing rights. Aboriginal title includes the right to possess land and control its use. Fee-simple ownership gives a private owner similar powers. In the court’s view, two parties cannot meaningfully hold exclusive control over the same property.

The court therefore distinguished between a historical finding of Aboriginal title and a present-day declaration. The Wolastoqey may prove that their Aboriginal title historically covered privately owned lands, potentially supporting a remedy against the Crown. The court concluded, however, that present-day Aboriginal title should not be declared over private lands.[2]

This reasoning places responsibility for historical wrongdoing on the Crown rather than current owners. It reflects concerns expressed in Chippewas of Sarnia, where the Ontario Court of Appeal considered the position of innocent landowners and the stability of longstanding private titles.[7]

The New Brunswick approach gives private owners greater certainty. However, it risks converting a constitutional right grounded in a continuing relationship with land into a financial claim whenever the Crown has already transferred the property.

Why the outcomes differed

The courts began with different questions.

British Columbia asked: Which interest existed first, and could the Crown lawfully erase it? Because Aboriginal title came first, a later Crown grant could not automatically defeat it.

New Brunswick asked: Can two parties exercise exclusive control over the same land? Because both Aboriginal title and fee simple include rights of possession and control, the court treated them as incompatible.

British Columbia’s approach gives stronger present-day effect to Aboriginal title but creates uncertainty for private owners. New Brunswick protects current ownership but directs Indigenous claimants mainly toward remedies against the Crown.

Quebec’s civil-law difference

Quebec does not use the common-law concept of fee simple. Article 947 of the Civil Code of Québec defines ownership as the right to use, enjoy and dispose of property fully and freely, subject to limits imposed by law.[8]

Aboriginal title, however, is not merely a common-law property interest. In Uashaunnuat, the Supreme Court explained that it is a unique constitutional right that cannot be fully described using either common-law or civil-law property categories.[9]

A Quebec court would therefore ask how constitutionally protected Aboriginal title interacts with ownership under the Civil Code.

Article 947 could support either direction. Its broad rights of use, enjoyment and disposal reinforce New Brunswick’s concern about competing control. Yet its express recognition that ownership is subject to legal limits could support the British Columbia view that Aboriginal title may continue to affect privately owned land.

A Quebec court could distinguish between recognizing Aboriginal title and selecting a remedy. Depending on the circumstances, that remedy could include a declaration over Crown land, negotiated arrangements, restoration of particular properties, limits on future uses or compensation from the Crown.

The central lesson is that Aboriginal title cannot be reduced to ordinary property law. British Columbia prioritized its continuing connection to the land. New Brunswick prioritized the stability of present-day ownership. Quebec would have to address the same constitutional conflict using the distinct concepts and remedies of its civil-law system.

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This commentary is provided for general information only and does not constitute legal advice. For advice on a specific situation, contact the firm.

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