This post is commentary only and does not constitute legal advice.

So, You Thought You Owned Your Home?

For many Canadians, buying your first home is a milestone achievement and the bedrock of your financial future. It is one of the few assets that individuals can engage significant leverage to acquire (that’s good) and one that, over time, will typically see appreciation (even though it may not feel like it today in December 2025). For well over one hundred private property owners across approximately 1,846 acres of South Richmond, BC – including homeowners, farmers, and commercial operators – the dream of property ownership has turned into a nightmare.

In the recent ruling of Cowichan Tribes v. Canada, the court determined that Aboriginal Title trumps fee simple ownership meaning that affected homeowners no longer held clean title to their property.   “Fee Simple” ownership is the strongest type of private property ownership that you can have in Canada (and the most common) and typically means that you own, indefinitely, the land and any buildings on it and you have the right to sell, lease, or mortgage the property, or pass the property on to heirs.  Owning a home that has compromised title is a problem, both in terms of getting a mortgage and for the property’s perceived value – it creates significant uncertainty.  That uncertainty runs deep not only for residents of BC, but for the economic health of Canada. 

Wait – The Court Said What??

On a recent wilderness hike through a forest near UBC with a close business partner, the topic of real estate and property ownership came up.  In a resigned sigh, he said, “yeah, I probably don’t own my home and I’m mentally preparing to halve its value”.  He then mentioned the Cowichan Tribes v. Canada (2025 BCSC 1490) decision, which, as noted above, ruled that Aboriginal title trumps fee simple title.  This significantly expands the scope of indigenous land rights and challenges the foundation of Canada’s property system.

On the impact of the Cowichan decision, solicitors for the City of Richmond stated that:

The decision marks the first time that the court has ruled on a claim for Aboriginal title: (a) over urban lands; (b) over lands that had been entirely granted in fee simple; and (c) over lands that the plaintiff’s ancestors had abandoned roughly 150 years in the past. The court’s decision in those circumstances to grant a present (not historical or past) declaration of Aboriginal title, and to dismiss arguments based on the Land Title Act and the sanctity of the Registry under British Columbia’s Torrens system, introduces enormous uncertainty into the security of any title in British Columbia. 

In other words, lands that had been granted to private ownership under the fee simple system for over 100 years, and the generations of families that built and purchased homes on these lands, now face a cloud of uncertainty over the security of their title – even where the Court did not directly invalidate private landowner interests in this proceeding. The Crown’s failure to honour its obligations to the Cowichan has ultimately imposed the cost of that failure on private citizens who purchased in good faith. On the other side, we have discrete Indigenous groups as the beneficiaries, with their own internal structures and politics. This is a deeply concerning result where many might question the fairness of the outcome.

Both Sides Now

I’ve looked at clouds from both sides now
From up and down and still somehow
It’s cloud illusions I recall
I really don’t know clouds at all      – Joni Mitchell

Thousands of years ago, people lived on this land mass we now refer to as Canada. Since then, over the last several hundred years, people from Europe and from other nations have settled in, built houses, families and lives. In our recent modern history, systemic, generational damage has been done to First Nations people that is, by now, incontrovertible. These are our established facts.

There are stark historical truths that have been established. On both sides, politics continue to rage – whether between first nations groups themselves and historical rivalries between tribes or between current Canadian politics on the far left and the far right. These are our current political challenges.

The difficulty of Cowichan is that it has one foot in the past and the other in the present. We have established historical precedent, including the “winners” of conflict between historical indigenous groups, as the basis for the establishment of Aboriginal title.  We have slightly more modern historical precedent, and essentially common law, on the losing end, of fee simple and the concept of private land ownership.  Ultimately, the juggling of concepts has validity on both sides – but the common theme here is one of current uncertainty. 

The challenge of reconciliation – and on the recent 10 year anniversary of the final report of the Truth and Reconciliation commission, no less – is one that most Canadians want to address. At the heart of Cowichan, I think the question is whether this is a step in the reconciliation process that addresses the scope of the problem or is this a step in the reconciliation process that benefits specific groups in a limited, piecemeal manner. On its face, it is the latter. Cowichan is a strong symbolic reminder of the importance of reconciliation, but, I would argue, not a blueprint for addressing these challenges in a systemic manner – and still, there is an underlying truth to the Cowichan decision that must be addressed.

To the extent settlers feel the need to reverse Cowichan, the importance of addressing the systemic, generational challenges of reconciliation is more truthfully revealed.   If one is outraged by Cowichan, perhaps the appropriate response should be to address the systemic debt revealed in the Truth and Reconciliation report – something modern politicians have been too timid to approach, but one that economists could price in as a strategic investment in nation building.  There is an economic cost to uncertainty, which is what Cowichan in many ways represents and why it feels incongruent.  There is an economic benefit to certainty, and, I believe, it is possible to address historical wrongs by making strategic long-term investments that will ultimately benefit First Nations people specifically and overall Canadian society generally.

This Isn’t Just a BC Problem

I have a good friend who works in capital markets and derivatives at a major global bank in New York City.  In his opinion, Canada is currently uninvestable.  Thinking about this bold statement, after my recent walk in the beautiful forests near UBC, I asked him for the specifics behind his thesis that Canada is uninvestable. He quickly replied: “No certainty on environmental approvals”; “No certainty on land ownership/title”; and “No certainty on taxes”.  And, as is typical for his brilliant mind, he drilled down with specific examples for each, including Cowichan – and this is a man whom I know loves his country and the promise it holds.

In a separate conversation I had with a CPA a few weeks back, reflecting on matters in the US, he pointed back in the other direction, saying that current unpredictable policy down south is creating uncertainty in global and domestic markets.  So maybe it cuts both ways.

At the end of the day, we, who physically live together on this land mass we refer to as Canada, are in it together.  We benefit from a more fully engaged, productive society and we benefit with internal (domestic) and external (investment).  To the extent that lack of certainty is hitting the bottom line for all Canadian citizens and First Nations people, isn’t the flip side, creating certainty within our society, making Canada a more investable, profitable geography, more desirable?  In this instance, I think the answer is yes, with an asterisk.  The sentiment that a rising tide that floats all boats, only works, when everyone has a boat that floats. 

So Where Does That Leave Us?

There is no controversy that “uncertainty” is bad for economics and business – and this seems both reasonable and logical.   Rather than point fingers at specific positions or outcomes, pointing to “uncertainty” and addressing it seems appropriate.   Addressing “uncertainty” by making long-term investments redressing wrongs, that most Canadians want to address, is possibly an even more perfect outcome. 

At worst, Cowichan is a disruptive decision throwing chaos and uncertainty into the fabric of Canadian society.   But what could it be at best?   A call to action to address historical wrongs in a lasting, generational systemic manner?  Picking up each affected individual and creating opportunity for a generation or two of First Nations people as an investment in the dream of Canada?  At the end of the day, I think the question is, what’s fair?  

In society, there are concepts of justice that resound and create the framework for how we live with each other.  Often, they infer concepts such as distributive justice (fair allocation of resources), retributive justice (fair punishment for wrongdoing), andrestorative justice (repairing harm and relationships).  In this context, where we have valid, conflicting historical realities, spanning generations, doesn’t the solution have to be one that satisfies concepts of fairness, but also spans forward generations? 

This blog post does advocate one concrete direction: massive, generational, intentional public investment in First Nations communities as the surest path to the legal and economic certainty that all Canadians need. The guiding principles are fairness, justice, and conscience, viewed through a generational lens. Cowichan makes clear that unresolved historical wrongs carry a real economic cost – one that, left unaddressed, will continue to fall on private citizens and deter the investment Canada needs to thrive. The flip side is equally true: resolving those wrongs through sustained, strategic investment is not charity – it is nation building. That is the takeaway. Thoughts?

The content of this post is for informational and commentary purposes only and does not constitute legal advice. The views expressed are those of the author and do not necessarily reflect the views of OMQ Law. This post reflects the state of the law as of December 2025 and may not account for subsequent legal developments.