Uncertainty In Dealing With Private Property Rights And Aboriginal Title

The Council of the Haida Nation v. British Columbia (BCSC) and Cowichan Tribes v. Canada (A.G.) (BCSC)

The Supreme Court of British Columbia released two decisions in September 2017, Haida Nation v. British Columbia¹ and Cowichan Tribes v. Canada (A.G.)², which dismissed applications for the provision of notice to private landowners potentially impacted by claims of Aboriginal title.

In both decisions, the Court focused on the judiciability of potentially joining hundreds of private landowners with disparate interests as defendants to claims for Aboriginal title. The Court recognized that the result of a finding of Aboriginal title on lands issued in fee simple were uncertain, but suggested that private landowners would not be immediately impacted by a declaration of Aboriginal title. Since both the Cowichan and Haida Nation had not sought explicitly to invalidate fee simple interests, the Courts surprisingly suggested that the fee simple would remain following a