David J. MacKinnon is a member of the British Columbia and Quebec law societies. He is lead Applicant in the case challenging former PM Justin Trudeau's prorogation of Parliament, currently pending before the Federal Court of Appeal. Cowichan Tribes v. Canada (Attorney-General) 2025 BCSC 1490 involves a claim to certain lands in Richmond, B.C., historically granted by the Crown to settlers in the late 19th and early 20th centuries. For most Canadians, making sense of the Cowichan case is a daunting task. The decision spans 863 pages — packed with legal terms, historical references, constitutional principles, and property law ideas that even seasoned lawyers must read carefully. Added to this are emotionally charged terms such as “reconciliation,” “Aboriginal Title,” “fee simple,” and “constitutional obligations,” which often create more confusion than clarity in public discussions. It’s no surprise that ordinary citizens feel like they’ve entered a fog of legal complexity.But the truth is more straightforward: the law isn't impenetrable, but it often seems so — especially when discussions are filtered through those whose livelihoods, influence, or authority rely on maintaining that impression of complexity.What has happened since the decision only deepens the confusion. In the days following the ruling, a wave of commentary emerged from law firms, advocacy groups, developers, municipal officials, and media pundits — all eager to interpret the implications. Their tone ranged from cautiously concerned to outright alarmist. Some claimed that fee simple land ownership in British Columbia was now at risk, that Aboriginal Title could override private property across large parts of the province, and that only expensive legal specialists — charging $900 to $1,200 an hour — could manage the crisis.This is misleading. The legal issues are indeed serious and require careful attention, but they are not beyond public understanding. Central to the matter is an age-old and straightforward maxim of property law: nemo dat quod non habet—that is, “no one can give what they do not have.” It remains as relevant today as it was in English common law centuries ago, and it offers a clear perspective for understanding the Cowichan decision..The Land Commissioner and the GovernorThe issue in Cowichan is not whether Aboriginal title is a burden on fee simple ownership. Fee simple refers to the most extensive private property right recognized in Canadian law: the right to use, possess, and dispose of land, always subject to the Crown’s underlying title and legal limits. It is well established that this interest is not absolute and can coexist with other rights, including Aboriginal title.This question — whether Aboriginal title burdens fee simple — was conclusively resolved in Delgamuukw v. British Columbia. The Supreme Court confirmed that Aboriginal title is a sui generis interest in land, grounded in prior occupation, and that it survives the assertion of Crown sovereignty. As such, it may exist underneath or alongside fee simple interests. The Cowichan dispute, therefore, is not about this fundamental principle — fee simple — but about how Aboriginal title is to be proven, recognized, and integrated within existing land tenures.Nor is it based solely on a failure to apply evidentiary rules, as argued in Peter Best’s recent piece in the C2C: Manufactured Judgements: How Canada’s Courts Promote Indigenous Radicalism.In fact, the story of the Cowichan Tribes case is not only about the Cowichan, but about two men at odds with each other — Governor James Douglas and Richard Clement Moody, the Chief Commissioner of Lands & Works. Governor Douglas oversaw many things, but Moody executed change. His engineers built roads, surveyed land, and established colonial infrastructure. Crucially, under the land settlement process, Moody’s office oversaw the opening of large tracts for settlement. It is a fact that indigenous land rights were often ignored during this period, but Moody managed well.He requisitioned 3,750 acres for himself through a third-party agent. As commanding engineer of the Royal Engineers, he maintained tight control over sites, access, and acquisition. Douglas, on the other hand, was directly mandated by the Crown to make peace with the Cowichan and tasked with implementing the condition for peace — respecting the boundaries of Indian Settlement Lands — as set out in Article 13 of the Terms of Union, which is central to this case. So, let’s forget the indigenous for a moment and look at how one of the most powerful men in the province paid for his properties, at the very time the mandated designation of the Indian settlement Lands process was being ignored. Based on colonial land policy, he might have paid as little as 4 shillings and 2 pence per acre, totalling around £700 for over 3,000 acres bought through third-party agents. All of it is on prime land in Sapperton, Brunette River, Pitt Meadows, and, importantly, the land corridor linking to Burrard Inlet. That includes both farmland and high-value residential or land assembly land. Today, even a basic rural valuation would indicate his land is worth at least CAN$150,000,000. A more realistic estimate, considering its closeness to premium residential areas and its land development potential, is approximately $750,000,000.Madam Justice Barbara Young’s judgment does more than outline legal principles; it also carefully reconstructs the historical record. She explains how certain Crown officials, including the Chief Commissioner of Lands and Works, acquired property within the Cowichan Title Lands without first fulfilling their statutory and constitutional duties. These duties included surveying, classifying, and protecting Indian Settlement Lands under the Terms of Union. In some cases, officials granted land to settlers — or to themselves — before those obligations had been met. Justice Young makes a clear comparison: a Land Commissioner who transfers land without first determining whether it is encumbered by indigenous rights is acting beyond his lawful authority, and it is certainly beyond authority if he conveys the land to himself.This is where the facts of the case should provide some reassurance rather than alarm. The Court is not rewriting land law; it is exposing what went wrong historically—who failed in their duties, what obligations were ignored, and why certain titles were defective from the start. Far from undermining the rule of law, this level of detail reinforces it. It reminds us that property rights in Canada depend not merely on possession, but on their lawful acquisition—and that is something any honest landowner can take comfort in..The lawyers again… [sigh]…. the lawyersThe possibility of more litigation and a parade of intervenors understandably unnerves ordinary citizens — particularly in British Columbia, where 95% of the land remains unceded by treaty. For homeowners, farmers, and small business owners, this uncertainty feels personal. For lawyers, consultants, and policy entrepreneurs, it looks like a growth industry.Within days of the judgment, a Blakes Insight bulletin sounded the alarm: “Aboriginal Title Supersedes Fee Simple… creates significant uncertainty for private landowners in B.C.” Borden Ladner Gervais, MLT Aikins, Olthuis Kleer Townshend, along with developers, realtors, activists and even Richmond City Council, quickly added their voices to the chorus. The message was consistent, and dramatic: fee simple—the bedrock of private ownership—was now under siege.What’s remarkable is how swiftly selective quotations and speculative interpretations have hardened into a kind of received wisdom. Two claims in particular are being wielded like a double-edged sword: first, that Cowichan opens the door for Aboriginal Title to override fee simple far beyond the facts of the case; second, that the resulting peril is so grave only high-priced specialists can navigate it. In other words, the public should be terrified and should leave the thinking to the experts. Cassels offered this sober warning: “Aboriginal title is a senior interest to fee simple title interests.” BLG asserted that the Court declared Crown grants to be “defective and invalid,” and affirmed Aboriginal Title as a “prior and senior interest in land.”In the current highly charged atmosphere surrounding the case, such cryptic remarks — particularly when presented without the full context of the judgment — risk being interpreted as the legal equivalent of shouting “fire” in a crowded theatre. They invite confusion, alarm, and speculation far beyond what the law or the facts justify. Yet no such panic is warranted. To see why, it is necessary to move past the headlines and examine, with care, the legal reasoning that underpins the decision. Only then can we properly assess the judgment, rather than the fragments that have been seized upon in public debate..What the judgment actually statesTo understand what Cowichan Tribes v. Canada actually decides, it is helpful to begin with the Court’s own words. In paragraph 2071, Justice Young writes:“Under Article 13 of the Terms of Union, the Province was required to transfer those lands to the Dominion. As a consequence of that obligation, the Province could not dispose of those lands or unilaterally extinguish Crown protection of Indian Settlement Lands until the conveyance was made.”She repeats the point in paragraph 2077:“This obligation imported a requirement on the Province not to dispose of those lands prior to conveyance, or until the Cowichan’s interest in the Cowichan Title Lands had otherwise been addressed through the reserve creation process.”In plain terms, before selling, granting, or otherwise disposing of these lands, the province had a constitutional duty to acknowledge and protect the Cowichan Nation’s prior interest. It did not do so. In other words, the province violated the ancient legal principle that one cannot give what one does not possess.From this, two conclusions follow — both of which have been lost in the noise and panic. First, this is not a zero-sum contest between Aboriginal Title and fee simple (para. 2094). One does not automatically extinguish the other. Second, the much-maligned concept of reconciliation — far from being a legal slogan — means that both interests can coexist, though each may be required to accommodate the other.This is why the alarmist claim that fee simple is now meaningless is both inaccurate and unnecessary.The designation of “Indian Settlement Land” does not eliminate property law — it activates it. Aboriginal Title in this context acts as a prior legal interest, a burden on the Crown’s underlying title. It is, in effect, a lien: it restricts what the Crown was legally able to grant. As mentioned earlier, this returns us to one of the oldest and most explicit principles in property law: nemo dat quod non habet — no one can give what they do not own. In Canadian law, the Crown is not exempt from this rule. If Aboriginal Title had already encumbered its title, it could not transfer unencumbered ownership to others. One cannot convey what one does not own.Yet — and this is critical — the Court also makes plain that private landowners are not under threat. At paragraph 2208, Justice Young writes:“The Cowichan do not challenge the validity of the private landowners’ fee simple interests.”She reinforces the point at paragraph 2190:“Aboriginal Title does not necessarily defeat fee simple title, just as it does not defeat the underlying title of the Crown.”These statements are not casual remarks, nor judicial embroidery. They lie at the centre of the judgment and rest on firm authority going back to Guerin v. The Queen (1984), Delgamuukw (1997), and Tsilhqot’in (2014).Justice Young is not inventing new law. She is restating a legal fact: Aboriginal Title is a pre-existing, constitutionally protected interest in land, recognized — not created — by the common law. For it to operate as a lien, two conditions had to be satisfied in this case: first, that the lands were officially designated as Indian Settlement Lands; second, that Article 13 of the Terms of Union imposed a constitutional duty on the Province to protect and transfer those lands to the Dominion for reserve creation.Both conditions were met. That is why the Cowichan succeeded — not because fee simple has been abolished, but because the rule of law finally caught up with the facts. The result is not the overthrow of the landholding system in British Columbia, but rather a reminder that the rule of law applies to the Crown as much as to anyone else..Absentee landowners, conflicts of interests and no consultation with the Cowichan.Paragraph 2599 of the case tells us that there was no consultation with the Cowichan prior to the issuance of the Crown grants. “Crown officials did not consult with the Cowichan to stake out their interest…in accordance with Douglas’ (the Governor’s) instructions to meet with the indigenous occupants of villages and stake out Indian reserves. Instead, various colonial officials participated in or otherwise turned a blind eye to blatant land speculation in the entire Cowichan Title Lands, which were granted to absentee owners.”Richard Moody, appointed Chief Commissioner of Land and Works in 1859, secretly purchased lands in 1863 through an agent within the Indian settlement lands. Between 1871 and 1914, parcels of land in the Claim Area were granted to settlers, including Moody and other government officials. Lawyers often say, “Define your terms and there will be no argument.” It is sound advice, yet in this case the very terms that dominate public discussion—“Aboriginal Title,” “reconciliation,” and the like—are fiercely contested terms, and frequently serve more to obscure than clarify. They carry political and emotional weight, and once invoked, they tend to fog the legal landscape rather than illuminate it.A clearer way forward is to strip the issue down to traditional property law. When we do so, much of the controversy dissolves. Take, for example, the lands acquired by Richard Moody. The issue at stake is not a modern debate about reconciliation or evolving theories of Aboriginal Title. It is something more fundamental: Moody’s title was legally flawed from the outset. Under Article 13 of the Terms of Union, the Province was constitutionally required to protect Indian Settlement Lands and transfer them to the Dominion before granting them to settlers — let alone to senior Crown officials themselves. Instead, Moody, while serving as Chief Commissioner of Lands and Works, secretly acquired parcels of these lands in 1863. His title was thus invalid in the usual legal sense: it violated both the spirit and the letter of the law. There is no need to invoke constitutional mysticism or cultural grievance to reach this conclusion. It directly follows from basic principles of property law.And as we have already seen, the first of those principles is as old as property law itself: nemo dat quod non habet—no one can give what they do not possess. A person cannot transfer a greater interest in land than the one they hold. In Canadian law, this maxim supports the Sale of Goods Acts, land title disputes, trust law, fiduciary duties, and Indigenous land claims alike. Its application is universal. The Crown, just like a private citizen, cannot lawfully convey what it never owned.This is why Cowichan Tribes v. Canada is significant. If Aboriginal Title is a pre-existing legal interest — recognized, not created, by common law — then the Crown’s title was already burdened when it issued fee simple grants to settlers and officials. The Crown could only transfer what it lawfully possessed. It could not extinguish Indigenous Title by ignoring it, nor could it override it except through lawful means: treaty, negotiation, surrender, or constitutional authority. Viewed this way, “nemo dat” is not just an obscure Latin phrase for legal scholars. It is the core principle on which Justice Young’s reasoning depends, and a reminder that the rule of law applies to governments just as it does to individuals.The historical record reveals something even more troubling: once these lands were opened up, a familiar group of opportunists — speculators, colonial officials, and well-connected insiders — quickly moved to acquire them at low prices. What was then sold for a pittance is now collectively worth hundreds of millions of dollars. Anyone familiar with British Columbia’s early land history — from the colonial frontier to the initial Social Credit era — will recognize the pattern: ambition, speculation, and a certain “improvisational” approach to legality. Indigenous rights were not ambiguously lost; they were deliberately sidestepped.This may unsettle those who now hold land inherited from past transactions. However, discomfort does not equate to injustice. The Cowichan judgment does not dismantle private property rights in British Columbia. Instead, it takes a more cautious and lasting approach: it confirms that the rule of law can address historical wrongs without undermining the foundation of private ownership.Justice Young does not abolish fee simple, nor does she place Aboriginal Title above all other interests. Instead, she restates a principle deeply rooted in Canadian law: where Aboriginal Title and fee simple coexist, neither is absolute. Each must make room for the other. What emerges is not chaos or confiscation, but a constitutional framework of coexistence. One interest is ancient, born of occupation; the other is statutory, born of Crown grant and registry. Both must adjust, bend, or in some cases yield—but neither must disappear.Far from threatening stability, this clarification reinforces it. It confirms that the law can recognise Indigenous rights without dissolving private ownership — provided both are understood within their proper legal limits. That is neither radical nor revolutionary. It is, in the best sense, the rule of law in action.David J. MacKinnon is a member of the British Columbia and Quebec law societies. He is lead Applicant in the case challenging former PM Justin Trudeau's prorogation of Parliament, currently pending before the Federal Court of Appeal.
