On December 16, we hosted a webinar on Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430. More than 1,100 people registered. Before and after the event, we received over 100 questions. Many of those questions raised the same concern: what do UNDRIP and Indigenous rights mean for private property owners? People asked this in different ways, but the worry stayed consistent. Does UNDRIP affect fee simple ownership? And could people lose their homes?
These concerns reflect widespread misunderstandings about Indigenous rights and how they interact with private property. This blog continues the conversation by addressing those misunderstandings directly.
Where the concern came from
Much of the anxiety appears to trace back to the August 7, 2025 decision of the B.C. Supreme Court in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490. That case recognized Aboriginal title to specific lands along the Fraser River in Richmond.After the decision, many property owners in Richmond and elsewhere in British Columbia felt uneasy. Unfortunately, misinformation amplified that unease.
What people heard, and why it spread
On October 19, 2025, the City of Richmond sent letters to some property owners stating that the Cowichan decision “may impact the title to your property.” That cautious language quickly escalated. Media coverage and social media posts suggested darker outcomes. Some claimed homeowners could lose their houses. Others warned that First Nations could take private land. A few even suggested that no property title in British Columbia was secure. Those claims spread fast. But they left out a critical fact.
The missing fact: Cowichan did not target private homeowners
The Cowichan plaintiffs did not sue private property owners. They did not ask the court to cancel private titles. They did not seek homes, businesses, or privately held land. Instead, they challenged specific parcels held by governments or public bodies. These included lands held by the Province, Canada, the City of Richmond, and the Vancouver Fraser Port Authority.
The decision carries serious consequences for the Crown. But the decision does not involve mass expropriation of private property.
The Court found that certain government-held interests were invalid because of history. The British Crown had set aside lands for Cowichan reserves. Despite that, between 1871 and 1914, the Provincial Crown granted those same lands away. Under British Columbia’s Terms of Union, the Province had no authority to do so. Aboriginal title was never extinguished.
Even then, the Court paused its declaration for 18 months. That pause allows time for negotiation and practical arrangements.
Aboriginal title in plain language: a beneficial interest that never disappeared
Aboriginal title rests on a straightforward idea: Indigenous peoples held land long before British sovereignty. The common law has always recognized that reality.
Courts identify 1846 as the year the British Crown asserted sovereignty over what is now British Columbia. That year, the United States abandoned its competing claim under the Oregon Treaty. By asserting sovereignty, the Crown acquired underlying or “allodial” title. But British law never treated that title as complete ownership. The Crown’s legal title remained subject to Indigenous peoples’ beneficial interests in their lands. When British Columbia joined Confederation in 1871, the Province acquired Crown lands “subject to any Trusts” and “any Interest other than that of the Province” under section 109 of the Constitution Act, 1867.
Because most of British Columbia remains untreatied, most First Nations never surrendered or ceded Aboriginal title. In practical terms, that title never vanished.
Why recognition has taken so long
Until a court defines boundaries or a treaty settles title, the law has allowed the Crown to manage and exploit Indigenous lands. That legal structure creates a strong incentive for delay. For decades, the Crown has benefited from postponing recognition of Aboriginal title. That delay reduced the Crown’s accountability; postponed compensation; and deferred restitution. But delay does not erase title. It only postpones the reckoning.
Fee simple ownership and where responsibility truly lies
Most homeowners hold land in fee simple. Such an interest always traces back to a Crown grant. But every fee simple grant is premised on the Crown owning both the legal and beneficial interest in the land. But where the Crown granted land that it did not fully own, because Indigenous peoples continue to hold the beneficial interest, that creates legal risk. That risk belongs to the Crown.
Today, if Indigenous peoples prove Aboriginal title to land still held by the Crown, the Crown must recognize that continuing interest.
Where land has already been granted away, the analysis becomes more complex. First, in Cowichan, the plaintiffs did not seek relief against homeowners. Second, longstanding principles of equity protect bona fide purchasers for value without notice. Where a private owner has bought land in good faith, without notice of an Aboriginal title claim, courts will preserve that interest.
Of course, Richmond tried to rely on that principle, but failed. The problem for Richmond is that the city did not acquire the lands through purchase. They reverted to Richmond through tax sales after no one paid the upset prices. But the broader point remains clear: courts will place responsibility where it belongs – on governments that took and used Indigenous lands without consent, treaty, or compensation.
If you believe in property rights, you must believe in reconciliation
Some commentary assumes that once the Crown claims ownership, the story ends. But property law has never worked that way. Courts do not reward unlawful takings. They do not freeze injustice in place. Two core principles guide property law: the state cannot take property without lawful authority, and they must either return the property, or pay just compensation if they cannot. Aboriginal title reflects those same principles. Reconciliation applies ordinary property law logic to an extraordinary historical injustice.
What UNDRIP actually changes
UNDRIP does not create new Aboriginal rights. Those rights have existed since 1846. They reflect aspects of pre-existing Indigenous civilizations that survived the Crown’s assertion of sovereignty. UNDRIP clarifies and affirms those rights as human rights. It helps align domestic law with rights that the Crown long denied or ignored. It gives courts and governments clearer guidance on how to respect them.
Reconciliation allows Indigenous peoples to pursue remedies against the Crown, just like any other rights-holders. That pursuit does not target innocent homeowners. It targets unlawful state conduct.
The path forward: certainty through justice, not fear
The Cowichan decision does not create chaos. It exposes unfinished business. Governments should stop invoking homeowners as a shield against Indigenous rights. Instead, the Provincial Crown should move reconciliation forward by:
- negotiating treaties and title agreements in good faith;
- funding fair compensation for past use of Indigenous lands and resources; and
- compensating First Nations where land cannot be returned.
Reconciliation does not undermine property rights; it strengthens them. Reconciliation through recognition of Aboriginal title insists that all ownership rest on lawful foundations.
Lisa C. Fong, KC and Michael Ng