In Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490, a court declared, for the first time, Aboriginal Title to “submerged lands” – i.e. lands under water. Justice Young of the BC Supreme Court concluded that the plaintiffs — Cowichan Tribes, Stz’uminus First Nation, Penelakut Tribe, and Halalt First Nation – along with the members of the Lyackson First Nation (all descendants of the Cowichan Nation (Quw’utsun mustimuhw)), established Aboriginal title to a strip of submerged lands contiguous to the dry land portion of the Title area that the plaintiffs established, along the Fraser River.
The ruling is significant – British Columbia has already announced it will appeal. The most prominent aspect of the ruling that the media and Attorney General Nikki Sharma’s statement announcing BC’s intention to appeal have focused on issues around Aboriginal Title and “fee simple” property interests granted by the Crown to third persons. But respecting submerged lands, the ruling matters because, until now, no First Nation had successfully established Aboriginal Title in court to submerged lands at all. BC has not yet made clear to what extent Aboriginal Title over submerged lands will feature in an appeal. However, given the persistent position of Crown governments that Aboriginal title over water spaces cannot arise due to public rights (relating to water spaces), we would be surprised if BC did not raise submerged lands as an appeal issue.
In fact, as we previously blogged about, the Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15 decision (and the Chippewas of Saugeen First Nation et al. v. The Attorney General of Canada et al., 2021 ONSC 4181 decision) saw trial judges actively musing on whether Aboriginal Title to submerged lands is even possible. Justice Kent in Saik’uzspeculated that “the conflict between the exclusivity of Aboriginal title and the primacy of the public right of navigation might still provide a potentially insurmountable barrier to a finding of Aboriginal title in this case. In fact, on the face of it, this would appear to be the case for any Aboriginal title claim to the bed of a navigable waterway” (para. 331).
Cowichan Tribes signals court recognition that there is no “insurmountable barrier” to Aboriginal Title to submerged lands, at least in that case.
The Court did not, however, declare Title to the full extent of the area sought by the plaintiffs, which included navigable waters:
[1652] The plaintiffs claimed a much wider expanse of submerged lands extending 142 acres of fluvial space into the south arm of the Fraser River, which has been described by Dr. Brealey as a fluvial highway. I do not find sufficient evidence of activities extending well into the Fraser River to base a finding of title there.
As to the nature of the evidence of Title to this “fluvial highway”, the ruling does not elaborate.
The Court approached the submerged lands to which it did recognize title by following the Ontario Court of Appeal’s approach in the Saugeen case – as summarized by Justice Young:
[1604] In Chippewas of Nawash ONCA, because of the trial judge’s finding that the plaintiffs had not established sufficient and exclusive occupancy of the submerged lands at issue, the Court found it unnecessary to assess whether the public right of navigation is incompatible with Aboriginal title. The Court did note at para. 93 that not every use of submerged lands will interfere with navigation, citing G.V. La Forest and Associates, Water Law in Canada: The Atlantic Provinces (Ottawa: Regional Economic Expansion, 1973) at 186:
It is now doubtful, to say the least, that every structure built in the bed of navigable water that may interfere in some slight degree with navigation is a public nuisance. Whether an obstruction constitutes a public nuisance is a question of fact to be determined having regard to all the facts of the particular case. This gives the courts some scope to make reasonable adjustments when the public right of navigation comes in conflict with other rights. In any event it is clear that not every work placed in navigable waters interferes with navigation.
[1605] The Court recognized that some instances of Aboriginal title to submerged lands may have no practicable effect on the public right of navigation, and may be entirely compatible with it: at para. 93.
The proper approach, according to the Court, is not to raise prima facie conceptual barriers regarding theoretical conflicts between common law public rights and Aboriginal Title, that would effectively foreclose the possible of Aboriginal Title arising in the first place, but rather to apply the standard Tsilhqot’in test for Aboriginal Title first. If Title is established under that analysis, the Court may then turn to the issue of how exclusive Aboriginal Title interacts with public rights (emphasis added):
[1627] I agree with the approach to determining Aboriginal title to submerged lands endorsed in Chippewas of Nawash ONCA. The first question the Court is concerned with is whether the plaintiffs have established Aboriginal title to submerged lands based on the usual test for Aboriginal title set out in Tsilhqot’in SCC. The requirements of sufficiency, continuity and exclusivity are lenses through which to view the question of Aboriginal title: at para. 32. In my view, these lenses are equally instructive on the question of submerged lands. If Aboriginal title to submerged lands is established, the court will next determine whether it is compatible with common law public rights of navigation: Chippewas of Nawash ONCA at para. 97. The Court of Appeal declined to express an opinion about the consequences of such an incompatibility, including whether the public right of navigation must pass the test for infringement of title or otherwise be reconciled: at para. 98.
Cowichan Tribes never proceeds beyond the first step – the application of the “sufficiency, continuity and exclusivity” lenses. The submerged lands to which the plaintiffs established Title are lands that were once above water and part of the village site to which the plaintiffs also established Title. Justice Young said, “[f]or the reasons I found they had sufficient and exclusive use of the village, I also find they had sufficient and exclusive use of the shoreline. This shoreline is immediately in front of the village, or is part of the village, now submerged. For two to four months in the summer, Cowichan occupied this area for harvesting purposes, and smaller groups sporadically occupied it throughout the year. I found this is sufficient occupation. The village was known by other Indigenous groups, who feared the Cowichan. By numbers and reputation, the Cowichan effectively controlled the village and shoreline in front of it” (para. 1649, emphasis added).
But, since these particular submerged lands “hug the shoreline”, the court concluded Aboriginal Title “will not interfere with public rights of navigation to any unreasonable extent, if at all. As no incompatibility between the Cowichan’s Aboriginal title and the public rights of navigation arise on the facts before me, I consider the question of compatibility no further” (para. 1653, emphasis added).
The case then, does not address the heart of the supposed problems identified in the Saik’uz and Saugeen trial decisions regarding how the “exclusivity” of Aboriginal Title can be compatible with public rights of navigation and fishing. A dispute therefore remains for First Nations seeking recognition of Aboriginal Title to ocean spaces. Courts hearing those cases, assuming they are satisfied that the Tsilhqot’in test is met in the first place, will almost certainly need to grapple with how public navigation and fishing rights interact with Aboriginal Title.
For the present, and subject of course to an appeal, Cowichan Tribes provides clarity that a court may declare Aboriginal Title to submerged lands. But respecting ocean spaces and other major navigable waters, difficult questions remain outstanding. One such issue is the extent Aboriginal Title to submerged lands covered by navigable waters may be constrained by — or supersede – specific rights of the public. Another such issue is the extent to which Indigenous rights of jurisdiction (or sovereignty) may include law-making powers over submerged lands that may regulate private rights and alter public rights in any event.
Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490
Ruben Tillman