How Does Aboriginal Title Impact Real Estate?
The Cowichan Tribes Decision & Private Property Rights
Whenever I talk with Canadians about reconciliation, one question always hangs in the air: what exactly is Aboriginal title?
It’s a term that pops up in court decisions, in land acknowledgments, and now in headlines about Metro Vancouver. But for most people, it feels abstract—like some dusty legal concept far removed from everyday life. Until, suddenly, a case like Cowichan Tribes v. Canada drops into the news, and homeowners start wondering: Does this affect me?
Let’s break it down.
The Legal Definition
At its core, Aboriginal title is a form of land ownership held by Indigenous peoples under Canadian law.
It’s unique because:
It is collective—held by a nation, not individuals.
It is constitutionally protected—recognized and affirmed in Section 35 of the Constitution Act, 1982.
It is based on occupation before European contact—tied to the fact that Indigenous nations were here first, governing and using the land long before Canada existed.
The courts have said Aboriginal title includes the right to:
Decide how the land is used (from cultural preservation to economic development).
Benefit from the land’s resources (timber, minerals, fisheries, etc.).
Exclude others from using the land.
It’s not symbolic—it’s ownership, in a very real and legal sense.
Where Did It Come From?
The roots of Aboriginal title stretch back centuries.
1763 Royal Proclamation: King George III acknowledged that Indigenous peoples had rights to their lands, and that only the Crown could acquire them through treaties. This was Canada’s first recognition that land wasn’t simply “up for grabs.”
The Courts:
Calder (1973): The Supreme Court recognized Aboriginal title exists at common law.
Delgamuukw (1997): Defined Aboriginal title as including decision-making and economic use of the land, not just traditional practices.
Tsilhqot’in (2014): First modern declaration of Aboriginal title over a specific territory in B.C.
Together, these cases hammered out a consistent principle: Aboriginal title exists unless it’s been properly dealt with by treaty or surrender.
How Is It Different from Reserves or Treaties?
This is where confusion often sets in.
Reserves: Created under the Indian Act. These lands are owned by the Crown and “set aside” for Indigenous use. Communities live there but don’t hold full ownership.
Treaties: Agreements where Indigenous nations exchanged title to vast territories in return for promises of land, payments, and rights. Historic treaties cover much of Canada—but not most of British Columbia.
Aboriginal Title: Exists independently of reserves or treaties. Where no treaty was signed, title was never extinguished. That’s why most of B.C. is considered “unceded territory.”
Why It Matters Now
For decades, Aboriginal title was treated like a theoretical concept. But that’s changing fast.
In Richmond (2025), the Cowichan Tribes proved title to land in an urban setting. For the first time, courts said title can coexist with private property.
In Haida Gwaii (2024), the B.C. government signed an agreement recognizing Aboriginal title across an entire territory—without a court battle.
Through UNDRIP and B.C.’s DRIPA (2019, 2021), governments have formally committed to aligning laws with Indigenous land rights.
This means Aboriginal title is no longer just a question for academics or judges. It shapes real estate markets, infrastructure projects, resource development, and even your local city planning process.
Common Misunderstandings
“Does this mean people will lose their homes?”
No. Courts have consistently said Aboriginal title must be reconciled with existing interests. The focus is on negotiation and shared governance, not eviction.
“Is Aboriginal title just symbolic?”
No. It’s enforceable in court and can override provincial or federal laws that unjustifiably infringe on it.
“Why didn’t we hear about this decades ago?”
Because governments preferred to ignore it. Indigenous nations had to spend decades—and millions in legal fees—proving what the Royal Proclamation admitted in 1763.
Two Ways to See It
From a government or homeowner perspective: Aboriginal title raises questions about certainty. The idea that your property rights aren’t absolute feels unsettling.
From an Indigenous perspective: Aboriginal title is long-overdue justice. It’s recognition that these rights never vanished and must now be respected.
Both truths matter.
My Take
As a Chief, I see Aboriginal title as more than a legal doctrine. It’s a bridge—an uncomfortable one, perhaps, but a necessary one—between two truths:
Canada was built on Indigenous lands.
Millions of Canadians now live, work, and build their futures on those same lands.
The challenge is not to choose one truth over the other, but to reconcile them in practice. That means moving beyond symbolic gestures to real negotiations, shared decision-making, and yes, sometimes uncomfortable compromises.
Conclusion
So, what is Aboriginal title?
It’s recognition—at law and in history—that Indigenous nations never gave up their rights to land unless they agreed to do so. It’s not going away, and cases like Cowichan Tribes v. Canada are only the beginning of how it will reshape Canada’s future.
The real question is not “what is Aboriginal title?” anymore. It’s “are we ready to live with it honestly, together?”
My understanding (and support) of this topic has been increased 1000% by your clear and logically presented article. Thank you so much for excluding the emotional aspects that just serve to cloud this important issue.
Very true and informing, thanks Aaron Pete