Fee Simple Under Fire, Part 2: The Question the Supreme Court Left Open

“When it’s the same legal issues that we are dealing with here, I think that bodes well for our arguments, and the appeals that we are seeking in B.C.”

- Niki Sharma, BC Attorney General (source)

“Good News”.

- David Robbins, lead counsel for the Cowichan Nation (source)

Introduction

Did the Supreme Court of Canada just settle whether Aboriginal title can override private property? Reading the headlines, you might think so, but that’s an overly simplistic take.

The most telling sign is that both sides in the BC Cowichan dispute, the Province defending fee simple and the Nation challenging it, have welcomed the very same outcome as shown in the quotes above. That looks contradictory. It stops looking that way once you see what the Court actually did, and more importantly, what it didn’t do.

On May 28, 2026, we saw the first major update to the fee simple question since the Cowichan decision in October 2025 (which we wrote about here), when the Supreme Court of Canada declined to hear an appeal from a separate New Brunswick title case,the Wolastoqey claim, and refused the Cowichan Tribes request to intervene in it.  The Cowichan and Wolastoqey claims turn on very similar legal questions, so interested BC parties were on high alert for what the Supreme Court would do.

In this edition of the Bird’s Eye View, we focus on the two points from the Supreme Court’s decision not to hear this appeal that actually matter to investors, homeowners, and taxpayers everywhere, the same two points that explain why both sides are content.

Point 1 - Private property is looking more secure, not less

This is the source of the Province’s relief. For all the alarm the Cowichan decision created, it’s becoming increasingly clear that private fee simple title isn’t going to be displaced by Aboriginal title claims.

The Wolastoqey Nation told the trial court that they weren’t trying to displace private owners’ “peaceable possession”. The Cowichan said the same here at home, stating in October 2025, that their case “has not and does not challenge the effectiveness or validity of any title held by individual private landowners … The ruling does not erase private property.”

Add in the Supreme Court’s evident reluctance to disturb fee simple by not hearing the Wolastoqey case, and the only conclusion is that displacement of private owners isn’t a realistic worry. For a property owner in British Columbia, that is the reassuring half of the story.

Point 2 - The real fight is about compensation, and it is still open

This is what the Cowichan are pleased about, and it is the half that should hold investors’ attention. Set aside the question of who physically holds the land, and what both nations are actually pursuing is compensation.

New Brunswick’s Court of Appeal said the Wolastoqey Nation may seek “a finding of Aboriginal title in respect of the privately owned lands … for the purpose of substantiating its claim for damages and compensation against the Crown” (para. 203). In other words, they closed the door to taking the deed to anyone’s property, but left it open for making a financial claim against the government.

Similarly, the Cowichan’s remedy, in their own words, is “against British Columbia, the party responsible.” So the question left open is not whether owners lose their homes; it is whether the Crown must compensate First Nations for having granted private title over land where Aboriginal title is later proven.

The Supreme Court has not answered that question yet, and the Cowichan Tribes are content to wait, because they would rather see that question decided with their own case, which was more thorough.

The consequences of that open question are enormous. If the answer is eventually yes, the bill will largely fall on the Province and the taxpayer, not the individual owner. As we noted in Part 1, it is a liability a province already under economic strain could scarcely absorb.

Conclusion

Certainty is coming, but absent something abnormal, it is not coming soon. The compensation question may not be settled until the Cowichan case has run through the BC Court of Appeal and, in all likelihood, the Supreme Court of Canada, a process we expect to play out over the next few years.

In the meantime, both sides are content with this outcome. The Province sees private property staying private. The Cowichan see that the door has been left open on the question of compensation.

For investors, little has actually changed on the ground: the risk of losing title looks remote. That being said, it would be understandable to expect a risk premium in BC until the Cowichan case is decided. We will be watching the BC Court of Appeal closely, and as always, evaluating its potential impact on any deal that comes across our desk.