A recent ruling by the British Columbia Supreme Court regarding the Cowichan Tribes has underscored the ongoing legal uncertainties surrounding constitutionally protected Aboriginal title. The case has drawn significant attention, particularly concerning how Aboriginal title interacts with privately owned lands. The court determined that Aboriginal title takes precedence over fee simple ownership, which is the legal term for private landholding. However, the ruling did not provide a clear declaration regarding privately owned land, leaving many questions unanswered.

The British Columbia government is appealing the Cowichan ruling due to the uncertainties it has introduced into the province's land ownership framework. The appeals process could extend for years without providing clarity on the matter. This situation reflects a broader context of legal ambiguity that has persisted since the Supreme Court of Canada’s landmark 2014 Tsilhqot’in decision, which was the first to recognize Aboriginal title to a specific area of land in Canada. Legal experts had cautioned that the Tsilhqot’in ruling left numerous critical issues unresolved, particularly regarding the implications of Aboriginal title for privately owned land.

In the Tsilhqot’in case, the claimants intentionally excluded small parcels of private ranchland from their claim. Similarly, in the Cowichan case, the claimants opted not to seek a full judicial declaration against privately owned lands in urban Richmond. Instead, they focused on obtaining a declaration against lands owned by the City of Richmond, which also holds land in fee simple. This indicates a gradual shift toward recognizing Aboriginal title's potential impact on private landowners, even as specific legal conclusions remain elusive.

Private landowners may have certain defenses available in court that public entities do not, such as the defense of being a “bona fide purchaser for value.” This defense can protect individuals who purchased land without knowledge of any claims against it. However, this defense did not apply in the Cowichan case, leaving uncertainty for other landowners who may be concerned about the implications of Aboriginal title on their properties.

The slow evolution of legal clarity in this area has left many landowners in a state of uncertainty. Those looking to sell their land may find that potential buyers are hesitant due to the unresolved legal questions surrounding Aboriginal title.

To address these legal ambiguities, there are potential avenues for resolution. One promising option is the reference power, which allows provincial and federal governments to pose specific legal questions to the courts for clarification. The federal government can directly approach the Supreme Court of Canada, while provinces can seek answers from their courts of appeal before escalating to the Supreme Court. This may be an opportune moment for governments to utilize this power to seek definitive answers on unresolved issues related to Aboriginal title.