Article snapshot
- Focus
- Aboriginal Law
- Summary
- A practical appeal-focused analysis of Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, arguing that the strongest appellate issues are legal and remedial, not a wholesale re-attack on the trial judge’s historical findings. The article explains where the real fight lies on appeal: continuity, Aboriginal title and fee simple coexistence, the Land Title Act, Article 13, ongoing infringement, and negotiation remedies.
- Primary issue
- Aboriginal title appeals, appellate strategy, continuity, fee simple and Aboriginal title coexistence, Land Title Act, Article 13 of the Terms of Union, ongoing infringement, negotiation remedies
- Jurisdiction
- British Columbia, Canada
- Court / tribunal
- Supreme Court of British Columbia; British Columbia Court of Appeal; Supreme Court of Canada
- Case / matter
- Cowichan Tribes v. Canada (Attorney General)
- Citation / file no.
- 2025 BCSC 1490; 2026 BCSC 324
- Statute / rule
- Constitution Act, 1982, s. 35; Land Title Act; Terms of Union, Article 13
- Who this helps
- lawyers, Indigenous communities, governments, academics, appellate counsel, land title professionals, general public
- Key takeaway
- The most serious appeal points are not broad attacks on occupation findings, but focused legal challenges to the trial judgment’s holdings on title continuity, coexistence with fee simple, the Land Title Act, Article 13, ongoing infringement, and judicially declared negotiation duties.
Discuss an Aboriginal law appeal
The August 7, 2025 judgment in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, is an unusually consequential Aboriginal title decision. It is also an unusually appealable one.
Not because the trial judge failed to grapple with the record. On the contrary, the reasons are dense, careful, and plainly grounded in an immense evidentiary record. The real appellate pressure lies elsewhere. It lies in a cluster of ambitious legal holdings about continuity, fee simple, the Land Title Act, Article 13 of the Terms of Union, ongoing infringement, and the court’s negotiation remedies.
That distinction matters. Under Housen v. Nikolaisen, 2002 SCC 33, the appellate court reviews pure questions of law for correctness, but factual findings and most mixed questions attract palpable-and-overriding-error review unless an extricable legal error can be isolated. In practical terms, that means a diffuse re-attack on oral history, occupation, and exclusivity is not the best appeal. A focused law appeal is.
This is also not a direct Supreme Court of Canada case. Any appeal from this judgment goes first to the British Columbia Court of Appeal. A further appeal to the Supreme Court of Canada would require leave.
What the trial judge actually decided
The first step in any serious appeal analysis is to strip away the public noise and identify what the judgment actually does.
The court declared Aboriginal title to a portion of the Lands of Tl’uqtinus, including a strip of submerged lands, and held that the Cowichan also have an Aboriginal right to fish the south arm of the Fraser River for food, without temporal or species limits (paras. 5-6, 3722-3724). The court further held that the Crown grants of fee simple in the Cowichan Title Lands, and BC’s vesting of the soil and freehold of certain highways in Richmond, unjustifiably infringe that title (paras. 3724, 2566-2576).
The court then went further. It declared most of Canada’s and Richmond’s own fee simple interests in the title lands defective and invalid, while excluding the YVR Fuel Project lands from that invalidity declaration and instead imposing a negotiation remedy in relation to them (paras. 3636-3638, 3694-3696, 3724).
But the judgment is just as important for what it did not do. It did not declare private third-party fee simple titles defective or invalid. The decisive passage is para. 2208: the judge held that private fee simple interests and their exercise will continue unaffected in practice unless and until later litigation or negotiation changes that position. That is not a minor detail. It is central. The February 27, 2026 follow-up ruling, Cowichan Tribes v. Canada (Attorney General), 2026 BCSC 324, confirms that this was also the plaintiffs’ consistent litigating position: privately held lands were within the title claim, but invalidity of private fee simple titles was not sought in this action (2026 BCSC 324, paras. 27-33).
That clarification matters because it sharpens the real appellate issue. The question is not whether the trial judge summarily erased private ownership across the claim area. She did not. The question is whether she could declare present Aboriginal title over land already burdened by longstanding fee simple interests, hold that those interests do not displace title, and assign reconciliation of those interests to the Crown outside the ordinary land-title framework.
That is the true appellate battleground.
The best grounds for the parties challenging the judgment
1. Continuity and “substantial connection”
The continuity holding is a serious appellate issue, but it is not the cleanest or strongest ground in the case.
The judge held that continuity, in this context, is fundamentally an evidentiary concept. In her view, continuous occupation is not required unless present occupation is being relied on as inferential proof of pre-sovereignty occupation. Otherwise, the relevant continuity question is whether the modern claimants are the descendants of the pre-sovereignty rights-holding community. On that basis, she concluded that “substantial connection” is not a free-standing present-day requirement for title in this case (paras. 568-595, especially 581-595, 598).
An appellant can attack that as an unduly narrow reading of continuity. The argument would be that title is a present proprietary interest, held communally for future generations, and that a court should not declare it over long-alienated urban land without requiring some maintained present connection to the land itself. On that view, the trial judgment reduces continuity to a purely evidentiary device and strips it of substantive force.
The response is substantial. The trial judge’s answer, which Cowichan will repeat, is that anything more demanding risks rewarding dispossession. If colonial alienation, exclusion, urbanization, and a century of Crown denial can sever title by breaking ongoing physical presence, the law would be validating the very conduct section 35 is supposed to constrain. The judge also placed herself within a doctrinal line that reads Delgamuukw, Marshall; Bernard, Tsilhqot’in, and Desautel flexibly rather than formalistically (paras. 581-598).
My view is that this is a real ground, but not the best one. It is an issue the Court of Appeal will take seriously. It is not, however, where I would spend most of the appellants’ capital.
2. Coexistence of Aboriginal title and fee simple interests
This is one of the strongest appellate issues in the case.
The judge held that the Cowichan’s Aboriginal title was not displaced by the historic Crown grants of fee simple, that Aboriginal title burdened and continues to burden the lands, and that Aboriginal title and fee simple can coexist. She then held that where both exist, their exercise must be reconciled, not treated as a simple winner-take-all displacement problem (paras. 2188-2208, especially 2189-2205).
The challengers’ argument is obvious and formidable. Aboriginal title and fee simple each carry, at their core, rights of exclusive occupation and control. The trial judge says both may coexist, but the exact incidents of simultaneous coexistence remain underdefined. The judgment answers the conflict by invoking reconciliation and later remedies, but an appellate court may well ask whether that approach postpones the legal problem rather than solving it.
The answer from Cowichan is equally powerful. Aboriginal title is not an estate derived from Crown grant. It predates Crown title, burdens the Crown’s underlying title, and cannot be displaced simply because the Crown later purported to grant fee simple over the same land. If fee simple always prevailed, then provincial grants would become a mechanism of practical extinguishment. The judge rejected that logic outright, and not without force (paras. 2182-2195, 2202-2208).
This is, in my view, a better appellate point than continuity because it sits at the centre of the case’s practical consequences. It is also where public commentary has been least precise. The real question is not whether private owners were immediately dispossessed. They were not. The real question is whether the trial judge’s coexistence model is legally coherent and administrable.
3. The Land Title Act and the Torrens system
If Richmond is looking for the cleanest, most systemic appellate ground, this is it.
The judge held that Aboriginal title currently lies beyond BC’s land-title system, that the Land Title Act does not apply to it in the way Richmond and BC argued, that registered fee simple title is not conclusive against Aboriginal title holders, and that, in any event, if sections 23 and 25 did operate to bar the claim, they would unjustifiably infringe Aboriginal title (paras. 2251-2270, especially 2251-2263, 2269-2270).
That is an extraordinary holding. It is also a highly appealable one.
Richmond’s best argument is not merely institutional self-interest. It is doctrinal. The Torrens system is built on registration, certainty, and indefeasibility. The trial judgment, if upheld in full, would mean that an unregistered constitutional interest can burden or defeat registered title outside the normal architecture of the registry. That is not a small refinement. It is a major reworking of British Columbia land-title law.
Cowichan’s answer is that a provincial land-title statute cannot be read to hollow out or practically extinguish section 35 title. That answer has real constitutional force. But the legal question remains exceptionally large, and it is difficult to imagine the Court of Appeal letting it pass without substantial analysis.
I would rank this as one of the very strongest grounds in the appeal.
4. Article 13 of the Terms of Union
This is the constitutional core of the case, and it is likely BC’s strongest pure-law issue.
The judge held that Article 13 continued the appropriation of Indian settlement lands after Confederation, constrained BC’s authority to dispose of those lands before conveyance or other proper disposition of the Indigenous interest, and rendered the post-Confederation Crown grants in the Cowichan Title Lands constitutionally unauthorized (paras. 1965-1969, 1974-1981, 2071-2081).
That is a major holding. It does not merely find historical unfairness. It constitutionalizes the limit.
The appellants will say that Article 13 is being asked to do too much. Their best version is that Article 13 is an intergovernmental reserve-creation provision. It requires cooperation between Canada and the Province. It does not, they will argue, itself invalidate later provincial dispositions absent a Dominion application for the specific lands at issue. They will say the judgment effectively transforms colonial policy and reserve-creation practice into a constitutional prohibition on provincial alienation.
The response is the one the trial judge accepted: BC’s obligation to convey lands for reserve-creation purposes presupposed that BC could not alienate them first. If the Province could freely sell Indian settlement lands before any federal application, Article 13 would become empty. That is the force of paras. 2074-2080.
This issue has obvious Supreme Court of Canada potential if it survives the BCCA in either direction. It engages constitutional structure, division of powers, the honour of the Crown, and the relationship between historic reserve-creation obligations and modern property rights.
5. Historic grants as ongoing infringement
This is probably Canada’s most serious systemic ground.
The judge accepted that while section 35 came into force only in 1982, the justification framework can apply where historic Crown conduct continues to interfere with an Aboriginal right at the time that right is recognized. She held that the Crown grants between 1871 and 1914 produced enduring present-day interferences with the incidents of title and therefore amount to ongoing infringement requiring justification (paras. 2566-2576, especially 2566-2567, 2571-2576).
The appellants will say that this stretches Sparrow too far. On their view, Sparrow and Tsilhqot’in regulate contemporary Crown conduct vis-à-vis recognized or asserted rights; they do not retroactively recharacterize every historic alienation of land as a present constitutional wrong. They will say the judge blurred the distinction between past acts and present consequences.
Cowichan’s response is straightforward and powerful: the exclusion is not merely historical. The land remains alienated now. The burden on title is present now. The court was not punishing the past in the abstract; it was addressing the present legal consequences of a continuing deprivation.
This is a strong appellate issue because it affects both liability and remedy, and because it raises a serious question about how far section 35 doctrine reaches when the underlying Crown conduct predates both 1982 and formal recognition of title.
6. The duty-to-negotiate declarations
The court’s negotiation remedies are also vulnerable, although one must be careful to describe them accurately.
The judge rejected the plaintiffs’ theory that the Crown owes a fiduciary duty to negotiate, holding that this concept is internally inconsistent with the nature of negotiation itself (paras. 3681, 3691). But she nonetheless declared that Canada and BC owe duties to negotiate in good faith, in a manner consistent with the honour of the Crown, with respect to the YVR Fuel Project lands on the federal side and the private fee simple interests and Richmond highway vestings on the BC side (paras. 3692-3697).
The appellants will argue that even stripped of fiduciary language, these declarations are too operational, too open-ended, and too close to judicial supervision of a political and multi-party reconciliation process. BC in particular will say that the court moved from identifying legal relationships to directing how reconciliation must be carried forward.
Cowichan’s answer is that the declarations do not dictate any substantive outcome. They do not compel expropriation. They do not nullify private ownership. They simply clarify the legal obligations that follow from declared title in a setting where the Crown itself created the problem by granting overlapping interests.
I do not think these declarations are safe on appeal. They may survive. But they are obvious candidates for narrowing.
The narrower but still important grounds
7. The fishing-right declaration
Musqueam and Tsawwassen’s clearest appellate target is the fishing declaration, but it is not as attractive a lead issue as the property and constitutional grounds.
The judge found that the Cowichan did not historically need Musqueam permission to fish the south arm, that the modern protocol letters reflected DFO’s regulatory structure rather than an ancient permission-based practice, and that the Aboriginal right should not be limited by season or species (paras. 3403-3452, 3505-3508, 3721-3723).
There is certainly room to argue overbreadth. Canada argued for a June-to-October seasonal delineation and lost (paras. 3492-3506). Musqueam argued that permission and kinship structure mattered and lost (paras. 3405-3410, 3448-3452). But those are heavily fact-sensitive findings grounded in ethnography, oral history, expert interpretation, and the weight assigned to competing evidence. Appellate courts are slower to interfere there.
For that reason, I would treat the fishing issue as important but secondary.
8. Submerged lands
The submerged-lands holding is novel enough to matter, but it is probably not the issue that will decide the appeal.
The judge held that submerged lands are to be approached first through the ordinary Tsilhqot’in title framework, and that compatibility with common-law navigation rights comes later, as a reconciliation problem rather than as a threshold bar to title (paras. 1620-1627).
That is legally significant. It may well be challenged. But relative to the Land Title Act, Article 13, and the continuing-infringement theory, it is a secondary point.
What is realistically available to Cowichan
If Cowichan cross-appeals, the available points are narrower and, in my view, less attractive than the grounds available to the appellants.
The first is the refusal of the declaration that the Cowichan are entitled, as against BC, to the Cowichan Title Lands. The judge accepted that the declaration was in one sense a corollary to title, but refused it as lacking practical utility and as overly broad, particularly because BC does not presently hold fee simple interests in the claim area and any future provincial dealing would already be governed by title, fiduciary obligations, the honour of the Crown, and the Sparrow framework (paras. 3698-3713).
The second is the refusal to grant a separate Article 13 declaration regarding the highway vestings. The judge expressly declined to resolve that through a freestanding Article 13 declaration and instead dealt with the matter under section 35 and the infringement analysis (paras. 3639-3641).
Both are arguable. Neither is, in my view, a case-defining cross-appeal point.
A broader challenge to the extent of the declared title area would be even harder. The judge expressly acknowledged that modern title boundaries are necessarily artificial, then undertook careful line-drawing on the record before her (paras. 1568-1573, especially 1569-1571). That sort of boundary determination is not an easy target on appeal.
Cowichan’s strongest appellate posture is therefore mostly defensive: preserve the title declaration, preserve the core reasoning that title survived alienation, and protect as much of the remedial architecture as possible.
Why the February 2026 follow-up ruling matters
The February 27, 2026 ruling in Cowichan Tribes v. Canada (Attorney General), 2026 BCSC 324, is procedural rather than substantive, but it is still worth mentioning.
First, it confirms that the final order had not yet been entered and that all parties had filed notices of appeal (2026 BCSC 324, para. 1). Second, it reveals an emerging private-owner flank: Montrose applied to be added as a party and to reopen the trial, and the judge ordered targeted document production relevant to delay and notice issues (2026 BCSC 324, paras. 2, 44-49).
Most importantly, however, the ruling clarifies a point that has often been misstated in public discussion. The court rejected the suggestion that the plaintiffs had litigated on the basis that private owners would not be affected at all. The judge held instead that their consistent position was that privately held land was within the title claim, but that invalidity of private fee simple interests was not being sought in this action (2026 BCSC 324, paras. 27-33).
That clarification does not change the substantive merits of the appeal. But it does sharpen the public and appellate debate. The unresolved problem is not whether private owners were already stripped of title. They were not. The unresolved problem is what the law does with their titles now that Aboriginal title has been judicially declared over the same land.
The realistic strategy on appeal
The challengers should resist the temptation to throw everything into the appeal.
The strongest appeal is not a kitchen-sink attack on 863 pages of reasons and a record that consumed hundreds of trial days. It is a disciplined law appeal built around a few load-bearing propositions:
the continuity/substantial-connection holding;
the coexistence model for Aboriginal title and fee simple;
the Land Title Act/Torrens holding;
the Article 13 holding;
the ongoing-infringement treatment of historic grants;
and the negotiation declarations.
Those are the real appellate levers.
By contrast, a sweeping re-argument of sufficiency, exclusivity, oral history, and territorial boundaries is much less attractive. Those issues may assist at the margins, especially where tied to a legal misdirection, but they are not where the appellants have their best chance.
Cowichan should do the opposite. The response should be to defend the judgment as a principled refusal to let ordinary property-law machinery accomplish the practical extinguishment of constitutional rights. That defence is strongest if it stays disciplined. The worst thing Cowichan could do is overreach and invite the Court of Appeal to reopen more of the factual terrain than necessary.
Likely outcome
On a realistic first impression, this judgment is vulnerable, but not uniformly.
I would expect the Court of Appeal to engage seriously with the Land Title Act issue, the coexistence model, Article 13, the continuing-infringement theory, and the negotiation declarations. I would expect real scrutiny, not polite affirmance.
At the same time, I would be slow to predict a wholesale reversal of the core historical findings. The judge made extensive findings about Cowichan occupation, the character of Tl’uqtinus, the continuing significance of the site, and the south-arm fishery. Those findings are not invulnerable, but they are not the easiest way into the case.
The most realistic appellate outcome is therefore not total collapse. It is partial narrowing, doctrinal recasting, or remedial adjustment.
The Court of Appeal may preserve the core recognition of title while narrowing the consequences the trial judge attached to it. It may uphold much of the historical analysis while revisiting the Land Title Act holding, the scope of Article 13, the continuing-infringement framework, or the negotiation remedies. It may also leave the private-title question more open than the trial judge did, precisely because the judgment itself left private third-party titles for another day.
That is why this case matters. The appeal will not really turn on whether the Cowichan had a historic village and fishery at Tl’uqtinus. The appeal will turn on what Canadian law permits a court to do now when Aboriginal title is proven over land long alienated, registered, urbanized, and partly held by others.
That is a question worthy of the British Columbia Court of Appeal.
And depending on what the BCCA does with Article 13, the Land Title Act, and the coexistence model, it may well become a question for the Supreme Court of Canada as well.
Selected linked authorities
Primary judgments and procedural materials
Supreme Court of Canada authorities
Questions this post answers
What is the main appellate issue in Cowichan Tribes v. Canada?
The central appellate issue is not simply whether the Cowichan proved historic occupation, but what Canadian law permits a court to do once Aboriginal title is declared over land that has long been alienated, registered, urbanized, and partly held through fee simple interests.
Will the appeal mainly turn on factual findings about occupation and oral history?
Probably not. Those findings attract significant appellate deference. The stronger appeal grounds are legal ones, including continuity, the coexistence of Aboriginal title and fee simple, the effect of the Land Title Act, Article 13 of the Terms of Union, ongoing infringement, and the scope of negotiation remedies.
Did the trial judgment invalidate private third-party titles?
No. The article explains that the trial judge did not declare private third-party fee simple titles invalid in this action. The harder legal question is what happens when Aboriginal title is declared over land already burdened by longstanding private interests.
Why does this case matter beyond the parties?
It matters because it raises large constitutional and property-law questions about Aboriginal title, land registration, Crown authority, and reconciliation. Depending on how the British Columbia Court of Appeal treats those issues, the case may become an important Supreme Court of Canada leave candidate.
About the Author: Jonathan R. Fernandes
Article snapshot
- Focus
- Aboriginal Law
- Summary
- A practical appeal-focused analysis of Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, arguing that the strongest appellate issues are legal and remedial, not a wholesale re-attack on the trial judge’s historical findings. The article explains where the real fight lies on appeal: continuity, Aboriginal title and fee simple coexistence, the Land Title Act, Article 13, ongoing infringement, and negotiation remedies.
- Primary issue
- Aboriginal title appeals, appellate strategy, continuity, fee simple and Aboriginal title coexistence, Land Title Act, Article 13 of the Terms of Union, ongoing infringement, negotiation remedies
- Jurisdiction
- British Columbia, Canada
- Court / tribunal
- Supreme Court of British Columbia; British Columbia Court of Appeal; Supreme Court of Canada
- Case / matter
- Cowichan Tribes v. Canada (Attorney General)
- Citation / file no.
- 2025 BCSC 1490; 2026 BCSC 324
- Statute / rule
- Constitution Act, 1982, s. 35; Land Title Act; Terms of Union, Article 13
- Who this helps
- lawyers, Indigenous communities, governments, academics, appellate counsel, land title professionals, general public
- Key takeaway
- The most serious appeal points are not broad attacks on occupation findings, but focused legal challenges to the trial judgment’s holdings on title continuity, coexistence with fee simple, the Land Title Act, Article 13, ongoing infringement, and judicially declared negotiation duties.
Discuss an Aboriginal law appealAppealing Cowichan Tribes v. Canada: where the real appellate fight lies
The August 7, 2025 judgment in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, is an unusually consequential Aboriginal title decision. It is also an unusually appealable one.
Not because the trial judge failed to grapple with the record. On the contrary, the reasons are dense, careful, and plainly grounded in an immense evidentiary record. The real appellate pressure lies elsewhere. It lies in a cluster of ambitious legal holdings about continuity, fee simple, the Land Title Act, Article 13 of the Terms of Union, ongoing infringement, and the court’s negotiation remedies.
That distinction matters. Under Housen v. Nikolaisen, 2002 SCC 33, the appellate court reviews pure questions of law for correctness, but factual findings and most mixed questions attract palpable-and-overriding-error review unless an extricable legal error can be isolated. In practical terms, that means a diffuse re-attack on oral history, occupation, and exclusivity is not the best appeal. A focused law appeal is.
This is also not a direct Supreme Court of Canada case. Any appeal from this judgment goes first to the British Columbia Court of Appeal. A further appeal to the Supreme Court of Canada would require leave.
What the trial judge actually decided
The first step in any serious appeal analysis is to strip away the public noise and identify what the judgment actually does.
The court declared Aboriginal title to a portion of the Lands of Tl’uqtinus, including a strip of submerged lands, and held that the Cowichan also have an Aboriginal right to fish the south arm of the Fraser River for food, without temporal or species limits (paras. 5-6, 3722-3724). The court further held that the Crown grants of fee simple in the Cowichan Title Lands, and BC’s vesting of the soil and freehold of certain highways in Richmond, unjustifiably infringe that title (paras. 3724, 2566-2576).
The court then went further. It declared most of Canada’s and Richmond’s own fee simple interests in the title lands defective and invalid, while excluding the YVR Fuel Project lands from that invalidity declaration and instead imposing a negotiation remedy in relation to them (paras. 3636-3638, 3694-3696, 3724).
But the judgment is just as important for what it did not do. It did not declare private third-party fee simple titles defective or invalid. The decisive passage is para. 2208: the judge held that private fee simple interests and their exercise will continue unaffected in practice unless and until later litigation or negotiation changes that position. That is not a minor detail. It is central. The February 27, 2026 follow-up ruling, Cowichan Tribes v. Canada (Attorney General), 2026 BCSC 324, confirms that this was also the plaintiffs’ consistent litigating position: privately held lands were within the title claim, but invalidity of private fee simple titles was not sought in this action (2026 BCSC 324, paras. 27-33).
That clarification matters because it sharpens the real appellate issue. The question is not whether the trial judge summarily erased private ownership across the claim area. She did not. The question is whether she could declare present Aboriginal title over land already burdened by longstanding fee simple interests, hold that those interests do not displace title, and assign reconciliation of those interests to the Crown outside the ordinary land-title framework.
That is the true appellate battleground.
The best grounds for the parties challenging the judgment
1. Continuity and “substantial connection”
The continuity holding is a serious appellate issue, but it is not the cleanest or strongest ground in the case.
The judge held that continuity, in this context, is fundamentally an evidentiary concept. In her view, continuous occupation is not required unless present occupation is being relied on as inferential proof of pre-sovereignty occupation. Otherwise, the relevant continuity question is whether the modern claimants are the descendants of the pre-sovereignty rights-holding community. On that basis, she concluded that “substantial connection” is not a free-standing present-day requirement for title in this case (paras. 568-595, especially 581-595, 598).
An appellant can attack that as an unduly narrow reading of continuity. The argument would be that title is a present proprietary interest, held communally for future generations, and that a court should not declare it over long-alienated urban land without requiring some maintained present connection to the land itself. On that view, the trial judgment reduces continuity to a purely evidentiary device and strips it of substantive force.
The response is substantial. The trial judge’s answer, which Cowichan will repeat, is that anything more demanding risks rewarding dispossession. If colonial alienation, exclusion, urbanization, and a century of Crown denial can sever title by breaking ongoing physical presence, the law would be validating the very conduct section 35 is supposed to constrain. The judge also placed herself within a doctrinal line that reads Delgamuukw, Marshall; Bernard, Tsilhqot’in, and Desautel flexibly rather than formalistically (paras. 581-598).
My view is that this is a real ground, but not the best one. It is an issue the Court of Appeal will take seriously. It is not, however, where I would spend most of the appellants’ capital.
2. Coexistence of Aboriginal title and fee simple interests
This is one of the strongest appellate issues in the case.
The judge held that the Cowichan’s Aboriginal title was not displaced by the historic Crown grants of fee simple, that Aboriginal title burdened and continues to burden the lands, and that Aboriginal title and fee simple can coexist. She then held that where both exist, their exercise must be reconciled, not treated as a simple winner-take-all displacement problem (paras. 2188-2208, especially 2189-2205).
The challengers’ argument is obvious and formidable. Aboriginal title and fee simple each carry, at their core, rights of exclusive occupation and control. The trial judge says both may coexist, but the exact incidents of simultaneous coexistence remain underdefined. The judgment answers the conflict by invoking reconciliation and later remedies, but an appellate court may well ask whether that approach postpones the legal problem rather than solving it.
The answer from Cowichan is equally powerful. Aboriginal title is not an estate derived from Crown grant. It predates Crown title, burdens the Crown’s underlying title, and cannot be displaced simply because the Crown later purported to grant fee simple over the same land. If fee simple always prevailed, then provincial grants would become a mechanism of practical extinguishment. The judge rejected that logic outright, and not without force (paras. 2182-2195, 2202-2208).
This is, in my view, a better appellate point than continuity because it sits at the centre of the case’s practical consequences. It is also where public commentary has been least precise. The real question is not whether private owners were immediately dispossessed. They were not. The real question is whether the trial judge’s coexistence model is legally coherent and administrable.
3. The Land Title Act and the Torrens system
If Richmond is looking for the cleanest, most systemic appellate ground, this is it.
The judge held that Aboriginal title currently lies beyond BC’s land-title system, that the Land Title Act does not apply to it in the way Richmond and BC argued, that registered fee simple title is not conclusive against Aboriginal title holders, and that, in any event, if sections 23 and 25 did operate to bar the claim, they would unjustifiably infringe Aboriginal title (paras. 2251-2270, especially 2251-2263, 2269-2270).
That is an extraordinary holding. It is also a highly appealable one.
Richmond’s best argument is not merely institutional self-interest. It is doctrinal. The Torrens system is built on registration, certainty, and indefeasibility. The trial judgment, if upheld in full, would mean that an unregistered constitutional interest can burden or defeat registered title outside the normal architecture of the registry. That is not a small refinement. It is a major reworking of British Columbia land-title law.
Cowichan’s answer is that a provincial land-title statute cannot be read to hollow out or practically extinguish section 35 title. That answer has real constitutional force. But the legal question remains exceptionally large, and it is difficult to imagine the Court of Appeal letting it pass without substantial analysis.
I would rank this as one of the very strongest grounds in the appeal.
4. Article 13 of the Terms of Union
This is the constitutional core of the case, and it is likely BC’s strongest pure-law issue.
The judge held that Article 13 continued the appropriation of Indian settlement lands after Confederation, constrained BC’s authority to dispose of those lands before conveyance or other proper disposition of the Indigenous interest, and rendered the post-Confederation Crown grants in the Cowichan Title Lands constitutionally unauthorized (paras. 1965-1969, 1974-1981, 2071-2081).
That is a major holding. It does not merely find historical unfairness. It constitutionalizes the limit.
The appellants will say that Article 13 is being asked to do too much. Their best version is that Article 13 is an intergovernmental reserve-creation provision. It requires cooperation between Canada and the Province. It does not, they will argue, itself invalidate later provincial dispositions absent a Dominion application for the specific lands at issue. They will say the judgment effectively transforms colonial policy and reserve-creation practice into a constitutional prohibition on provincial alienation.
The response is the one the trial judge accepted: BC’s obligation to convey lands for reserve-creation purposes presupposed that BC could not alienate them first. If the Province could freely sell Indian settlement lands before any federal application, Article 13 would become empty. That is the force of paras. 2074-2080.
This issue has obvious Supreme Court of Canada potential if it survives the BCCA in either direction. It engages constitutional structure, division of powers, the honour of the Crown, and the relationship between historic reserve-creation obligations and modern property rights.
5. Historic grants as ongoing infringement
This is probably Canada’s most serious systemic ground.
The judge accepted that while section 35 came into force only in 1982, the justification framework can apply where historic Crown conduct continues to interfere with an Aboriginal right at the time that right is recognized. She held that the Crown grants between 1871 and 1914 produced enduring present-day interferences with the incidents of title and therefore amount to ongoing infringement requiring justification (paras. 2566-2576, especially 2566-2567, 2571-2576).
The appellants will say that this stretches Sparrow too far. On their view, Sparrow and Tsilhqot’in regulate contemporary Crown conduct vis-à-vis recognized or asserted rights; they do not retroactively recharacterize every historic alienation of land as a present constitutional wrong. They will say the judge blurred the distinction between past acts and present consequences.
Cowichan’s response is straightforward and powerful: the exclusion is not merely historical. The land remains alienated now. The burden on title is present now. The court was not punishing the past in the abstract; it was addressing the present legal consequences of a continuing deprivation.
This is a strong appellate issue because it affects both liability and remedy, and because it raises a serious question about how far section 35 doctrine reaches when the underlying Crown conduct predates both 1982 and formal recognition of title.
6. The duty-to-negotiate declarations
The court’s negotiation remedies are also vulnerable, although one must be careful to describe them accurately.
The judge rejected the plaintiffs’ theory that the Crown owes a fiduciary duty to negotiate, holding that this concept is internally inconsistent with the nature of negotiation itself (paras. 3681, 3691). But she nonetheless declared that Canada and BC owe duties to negotiate in good faith, in a manner consistent with the honour of the Crown, with respect to the YVR Fuel Project lands on the federal side and the private fee simple interests and Richmond highway vestings on the BC side (paras. 3692-3697).
The appellants will argue that even stripped of fiduciary language, these declarations are too operational, too open-ended, and too close to judicial supervision of a political and multi-party reconciliation process. BC in particular will say that the court moved from identifying legal relationships to directing how reconciliation must be carried forward.
Cowichan’s answer is that the declarations do not dictate any substantive outcome. They do not compel expropriation. They do not nullify private ownership. They simply clarify the legal obligations that follow from declared title in a setting where the Crown itself created the problem by granting overlapping interests.
I do not think these declarations are safe on appeal. They may survive. But they are obvious candidates for narrowing.
The narrower but still important grounds
7. The fishing-right declaration
Musqueam and Tsawwassen’s clearest appellate target is the fishing declaration, but it is not as attractive a lead issue as the property and constitutional grounds.
The judge found that the Cowichan did not historically need Musqueam permission to fish the south arm, that the modern protocol letters reflected DFO’s regulatory structure rather than an ancient permission-based practice, and that the Aboriginal right should not be limited by season or species (paras. 3403-3452, 3505-3508, 3721-3723).
There is certainly room to argue overbreadth. Canada argued for a June-to-October seasonal delineation and lost (paras. 3492-3506). Musqueam argued that permission and kinship structure mattered and lost (paras. 3405-3410, 3448-3452). But those are heavily fact-sensitive findings grounded in ethnography, oral history, expert interpretation, and the weight assigned to competing evidence. Appellate courts are slower to interfere there.
For that reason, I would treat the fishing issue as important but secondary.
8. Submerged lands
The submerged-lands holding is novel enough to matter, but it is probably not the issue that will decide the appeal.
The judge held that submerged lands are to be approached first through the ordinary Tsilhqot’in title framework, and that compatibility with common-law navigation rights comes later, as a reconciliation problem rather than as a threshold bar to title (paras. 1620-1627).
That is legally significant. It may well be challenged. But relative to the Land Title Act, Article 13, and the continuing-infringement theory, it is a secondary point.
What is realistically available to Cowichan
If Cowichan cross-appeals, the available points are narrower and, in my view, less attractive than the grounds available to the appellants.
The first is the refusal of the declaration that the Cowichan are entitled, as against BC, to the Cowichan Title Lands. The judge accepted that the declaration was in one sense a corollary to title, but refused it as lacking practical utility and as overly broad, particularly because BC does not presently hold fee simple interests in the claim area and any future provincial dealing would already be governed by title, fiduciary obligations, the honour of the Crown, and the Sparrow framework (paras. 3698-3713).
The second is the refusal to grant a separate Article 13 declaration regarding the highway vestings. The judge expressly declined to resolve that through a freestanding Article 13 declaration and instead dealt with the matter under section 35 and the infringement analysis (paras. 3639-3641).
Both are arguable. Neither is, in my view, a case-defining cross-appeal point.
A broader challenge to the extent of the declared title area would be even harder. The judge expressly acknowledged that modern title boundaries are necessarily artificial, then undertook careful line-drawing on the record before her (paras. 1568-1573, especially 1569-1571). That sort of boundary determination is not an easy target on appeal.
Cowichan’s strongest appellate posture is therefore mostly defensive: preserve the title declaration, preserve the core reasoning that title survived alienation, and protect as much of the remedial architecture as possible.
Why the February 2026 follow-up ruling matters
The February 27, 2026 ruling in Cowichan Tribes v. Canada (Attorney General), 2026 BCSC 324, is procedural rather than substantive, but it is still worth mentioning.
First, it confirms that the final order had not yet been entered and that all parties had filed notices of appeal (2026 BCSC 324, para. 1). Second, it reveals an emerging private-owner flank: Montrose applied to be added as a party and to reopen the trial, and the judge ordered targeted document production relevant to delay and notice issues (2026 BCSC 324, paras. 2, 44-49).
Most importantly, however, the ruling clarifies a point that has often been misstated in public discussion. The court rejected the suggestion that the plaintiffs had litigated on the basis that private owners would not be affected at all. The judge held instead that their consistent position was that privately held land was within the title claim, but that invalidity of private fee simple interests was not being sought in this action (2026 BCSC 324, paras. 27-33).
That clarification does not change the substantive merits of the appeal. But it does sharpen the public and appellate debate. The unresolved problem is not whether private owners were already stripped of title. They were not. The unresolved problem is what the law does with their titles now that Aboriginal title has been judicially declared over the same land.
The realistic strategy on appeal
The challengers should resist the temptation to throw everything into the appeal.
The strongest appeal is not a kitchen-sink attack on 863 pages of reasons and a record that consumed hundreds of trial days. It is a disciplined law appeal built around a few load-bearing propositions:
the continuity/substantial-connection holding;
the coexistence model for Aboriginal title and fee simple;
the Land Title Act/Torrens holding;
the Article 13 holding;
the ongoing-infringement treatment of historic grants;
and the negotiation declarations.
Those are the real appellate levers.
By contrast, a sweeping re-argument of sufficiency, exclusivity, oral history, and territorial boundaries is much less attractive. Those issues may assist at the margins, especially where tied to a legal misdirection, but they are not where the appellants have their best chance.
Cowichan should do the opposite. The response should be to defend the judgment as a principled refusal to let ordinary property-law machinery accomplish the practical extinguishment of constitutional rights. That defence is strongest if it stays disciplined. The worst thing Cowichan could do is overreach and invite the Court of Appeal to reopen more of the factual terrain than necessary.
Likely outcome
On a realistic first impression, this judgment is vulnerable, but not uniformly.
I would expect the Court of Appeal to engage seriously with the Land Title Act issue, the coexistence model, Article 13, the continuing-infringement theory, and the negotiation declarations. I would expect real scrutiny, not polite affirmance.
At the same time, I would be slow to predict a wholesale reversal of the core historical findings. The judge made extensive findings about Cowichan occupation, the character of Tl’uqtinus, the continuing significance of the site, and the south-arm fishery. Those findings are not invulnerable, but they are not the easiest way into the case.
The most realistic appellate outcome is therefore not total collapse. It is partial narrowing, doctrinal recasting, or remedial adjustment.
The Court of Appeal may preserve the core recognition of title while narrowing the consequences the trial judge attached to it. It may uphold much of the historical analysis while revisiting the Land Title Act holding, the scope of Article 13, the continuing-infringement framework, or the negotiation remedies. It may also leave the private-title question more open than the trial judge did, precisely because the judgment itself left private third-party titles for another day.
That is why this case matters. The appeal will not really turn on whether the Cowichan had a historic village and fishery at Tl’uqtinus. The appeal will turn on what Canadian law permits a court to do now when Aboriginal title is proven over land long alienated, registered, urbanized, and partly held by others.
That is a question worthy of the British Columbia Court of Appeal.
And depending on what the BCCA does with Article 13, the Land Title Act, and the coexistence model, it may well become a question for the Supreme Court of Canada as well.
Selected linked authorities
Primary judgments and procedural materials
Supreme Court of Canada authorities
Questions this post answers
What is the main appellate issue in Cowichan Tribes v. Canada?
The central appellate issue is not simply whether the Cowichan proved historic occupation, but what Canadian law permits a court to do once Aboriginal title is declared over land that has long been alienated, registered, urbanized, and partly held through fee simple interests.
Will the appeal mainly turn on factual findings about occupation and oral history?
Probably not. Those findings attract significant appellate deference. The stronger appeal grounds are legal ones, including continuity, the coexistence of Aboriginal title and fee simple, the effect of the Land Title Act, Article 13 of the Terms of Union, ongoing infringement, and the scope of negotiation remedies.
Did the trial judgment invalidate private third-party titles?
No. The article explains that the trial judge did not declare private third-party fee simple titles invalid in this action. The harder legal question is what happens when Aboriginal title is declared over land already burdened by longstanding private interests.
Why does this case matter beyond the parties?
It matters because it raises large constitutional and property-law questions about Aboriginal title, land registration, Crown authority, and reconciliation. Depending on how the British Columbia Court of Appeal treats those issues, the case may become an important Supreme Court of Canada leave candidate.