The Cowichan Tribes decision is being framed as a harbinger of province-wide chaos for private landowners. It is not. The ruling concerns a narrow and historically specific set of facts, and its implications are being overstated. What some commentators have described as an “iceberg” is, on closer inspection, a rapidly melting ice cube.Vaughan Palmer recently warned readers that the Cowichan ruling reveals the vast scale of Aboriginal title claims lurking beneath the surface in BC. His column leans heavily on a 2015 Secwépemc claim that includes the City of Kamloops and nearby tenures, revived this month by MLA Elenore Sturko. Palmer presents this nine-year-old filing as evidence that Cowichan signals a new era of sweeping Aboriginal title assertions..QUESNEL: Workers' party or working government? NDP at a crossroads.But a notice of claim is not a judgment. It is a statement of position, not a determination of rights. When a claim has sat dormant for nearly a decade, the more reasonable inference is that it has not advanced because its foundations are weak.The second problem is the misreading of Cowichan itself. Much commentary — especially from large law firms — has insisted that the ruling elevates Aboriginal title above fee simple, destabilizes private ownership, and renders Crown grants “defective” across the province. The judgment does not support this characterization. Justice Young held that Cowichan title persisted because the land in question had been explicitly designated as Indian Settlement Land under colonial and Dominion authorities. That designation created a prior legal interest that the Crown had no power to extinguish unilaterally..In other words, the case turns on the unique history of specific parcels in Richmond. It does not establish a province-wide principle that Aboriginal title overrides fee simple. Justice Young makes this explicit in her ruling, and it cannot be overstated. Aboriginal title does not automatically defeat fee simple, nor does it erase the Crown’s underlying title. Where they coexist, both interests must be reconciled. In sum, the ruling does not create new law, but rather applies long-settled principles of common law. At the core of the Cowichan decision lies a simple proposition familiar to any first-year law student: a party cannot transfer a better title than it possesses: nemo dat quod non habet. This ancient Roman tag can be rendered in simple English: we cannot give to others that which we do not ourselves possess. If an existing indigenous interest already burdened the Crown’s title, then the Crown lacked the authority to convey an unencumbered fee simple to others. .MUSHET: McGowan's attempt to take over .In sum, Justice Young’s decision does not invent a new hierarchy of rights; it simply restates the basic logic of property law, logic that reaches back through centuries of common-law doctrine. The principle is neither exotic nor uniquely “Indigenous law.” It is the same rule that governs every defective conveyance: one cannot grant an interest one does not possess. In terms of the Cowichan decision, the real source of controversy, then, is not legal innovation but historical discomfort. The case forces us to confront moments when the Crown, or officials acting under its authority, purported to convey land it never lawfully controlled. The turmoil lies in BC’s early and, shall we say, “colourful” history, not in the jurisprudence. BC was shaped by more than a few opportunists and chancers, and it is their handiwork — not Justice Young’s reasoning — that continues to ripple through today’s land files. As the Bard put it, “the past is prologue.”.It is crucial to underscore that the Shuswap claim bears none of the defining features that gave Cowichan its force. The Kamloops townsite was established, surveyed, and granted as Crown land. The reserves in the region were created as such — not as Indian Settlement Lands — under Governor Douglas and subsequent administrations. In a phrase, Indian settlement lands in the region lie outside present-day Kamloops. Consequently, Cowichan does little to comfort the plaintiffs’ claims in the Secwépemc filing.It is also worth recalling the factual record underlying the Cowichan dispute. Justice Young traces a pattern of nineteenth-century speculation in which colonial officials granted themselves and associates lands they had no authority to convey. These grants were “defective” not because Aboriginal title is a mysterious senior interest, but because the Crown could not legally dispose of land already burdened by a prior claim. This is classic property law, not an esoteric exercise in indigenous jurisprudence..OLDCORN: Alberta’s classrooms are becoming English language camps.If anything, the decision clarifies the law. It confirms that fee simple and Aboriginal title can coexist, and that each must yield to the other where necessary. It also exposes the historical misconduct that created the conflict in the first place, not the rights of present-day homeowners. And it underscores that “Aboriginal title” is often less an existential threat than a form of lien arising from the Crown’s own failures.Those seeking an existential crisis in Cowichan won't find one. The dormant Shuswap claim is no stronger today than it was nine years ago. The “iceberg” dissolves upon closer examination. What remains is an ice cube: small, containable, and hardly a threat to property rights in British Columbia.
