Indigenous Bar Association calls for action, not alarm, in response to historic Cowichan ruling

The Indigenous Bar Association (IBA) has encouraged governments, institutions, and members of the public to approach the British Columbia Supreme Court’s landmark judgment – which confirmed the Cowichan’s Aboriginal title and fishing rights – in the spirit of reconciliation. 

In a press release, the IBA highlighted that the decision called for action such as good-faith negotiations, respectful debate, and a renewed commitment to the constitutional framework of reconciliation under s. 35 of the Constitution Act, 1982. 

“The Cowichan decision underscores that Aboriginal title is not theoretical – it is a legal reality, long recognized by the Supreme Court of Canada,” said Ajay Winterburn, IBA president, in the press release. 

The IBA referred to recent public statements recommending halting the work to advance reconciliation in response to the ruling. The IBA called these statements concerning and inconsistent with the country’s constitutional and moral obligations. 

“Fear-based narratives undermine public confidence in the rule of law and erode the hard-won progress of Indigenous peoples toward justice,” Winterburn said in the IBA’s press release. “True reconciliation requires courage in the face of transformative decisions.” 

The IBA warned governments against citing such judgments as reasons to slow down reconciliation efforts. The IBA emphasized that the goal of reconciliation had a foundation in s. 35, the United Nations Declaration on the Rights of Indigenous Peoples, and the Crown’s honour. 

“Reconciliation cannot be ‘paused’ when the courts affirm what Indigenous Nations have known all along: that these lands were never lawfully surrendered or extinguished,” Winterburn said. 

Context of case

Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490, involved the Cowichan (Quw’utsun mustimuhw), an Indigenous people composed of 11 local groups. 

The plaintiffs, on behalf of themselves and the historic Cowichan Nation’s descendants, commenced an action to seek the following declarations relating to an area comprising around 1,846 acres of land: 

• an Aboriginal title to their traditional village of Tl'uqtinus on the Fraser River’s south arm, as well as its surrounding lands and submerged lands 
• Aboriginal fishing rights over the south arm 

The federal Crown, the Vancouver Fraser Port Authority (VFPA), Richmond City, and private third parties owned properties within the claim area. Six defendants – Canada, BC, Richmond, the VFPA, Tsawwassen First Nation, and the Musqueam Indian Band – opposed the claim. 

The trial, which began in September 2019, raised complex and novel issues. 

BC court ruling

The Supreme Court of British Columbia issued a judgment declaring that: 

• The Cowichan had an Aboriginal title to the Cowichan title lands – a portion of the claim area that included a strip of submerged lands – and an Aboriginal right to fish the south arm for food under s. 35(1) of the Constitution Act 
• The Crown’s acts of granting fee simple interest in the Cowichan title lands and vesting of the soil and freehold interest in certain highway lands in the Cowichan title lands unjustifiably infringed the Cowichan Aboriginal title 
• Apart from Canada’s fee simple titles and interests in the Vancouver Airport fuel delivery project lands, Canada’s and Richmond’s fee simple titles and interests in the Cowichan title lands were defective and invalid 
• Regarding the Cowichan title lands, Canada owed the Cowichan the duty to negotiate in good faith the reconciliation of Canada’s fee simple interests in the Vancouver Airport project lands with the Cowichan Aboriginal title in a manner consistent with the Crown’s honour 
• In connection with the Cowichan title lands, BC owed the Cowichan a duty to negotiate in good faith the reconciliation of the third parties’ Crown-granted fee simple interests and the Crown’s vesting of the soil and freehold interest to Richmond with the Cowichan Aboriginal title, also in a manner aligning with the Crown’s honour 

In its press release, the IBA described the court’s judgment as a significant step forward in the evolution of Aboriginal title jurisprudence and the constitutional recognition of Indigenous land and resource rights in the country. 

The IBA expressed its support for the Cowichan Tribes, Stz’uminus First Nation, the Penelakut Tribe, and Halalt First Nation. The IBA called attention to the efforts of their leaders and legal teams to litigate this matter with strength and integrity. Following this ruling, the IBA said it would keep fighting for clarity, education, and principled engagement.