Watson Goepel LLP was recently featured on the The Vancouver Life Podcast with hosts Dan Wurtele and Ryan Dash from Exp Realty where our Associate Counsel, Anita Boscariol, discussed the legal impact of the Cowichan land claim decision in Richmond.
With headlines raising concerns about property rights, mortgages, and investment risk, many British Columbians are asking:
- Can Aboriginal title override private property?
- Is my home at risk?
- Should I still buy in Metro Vancouver?
Here’s what you need to know.
UNDRIP, DRIPA, and Section 35 — The Legal Context
The Cowichan case must be understood within three key frameworks:
- The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the United Nations
- British Columbia’s Declaration on the Rights of Indigenous Peoples Act (DRIPA), enacted by the Government of British Columbia
- Section 35 of the Constitution Act, 1982
Section 35 constitutionally protects existing Aboriginal and treaty rights. Leading decisions from the Supreme Court of Canada — including Delgamuukw and Tsilhqot’in — confirmed that Aboriginal title predates Crown sovereignty.
UNDRIP and DRIPA did not “open the door” to land claims. These rights were confirmed in Canadian law. The UNDRIP confirmed as a legally non binding declaration the rights of Indigenous people across the world , which include rights to land. The DRIPA passed by the government of BC identifies a pathway for incorporation of UNDRIP into the laws of British Columbia.
What Did the Cowichan Decision Actually Say?
The Court made a declaration that the Cowichan Nation have Aboriginal title to a portion of the “Lands of Tl’utquinus” on the south arm of the Frase River.
With respect to third party fee simple interests, the Court made no specific declaration of Cowichan Aboriginal Title over third party fee simple interests.
The Court made a declaration that British Columbia owes a duty to the descendants of the Cowichan Nation, to negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties with Cowichan Aboriginal title, in manner consistent with the honour of the Crown.
This does not automatically cancel private ownership. Rather, it points to its duty on British Columbia to negotiate a settlement with the Cowichan.
Virtually all of British Columbia is claimed as territory of First Nations
This includes overlapping Aboriginal claims to land.
Aboriginal Title claims must be established in Court, requiring detailed historical, anthropological, and legal evidence proving sufficient, continuous, and exclusive occupation at the time of Crown sovereignty. Courts assess each claim carefully. Title claims may also be negotiated.
Third party fee simple interests are not included in negotiations except on a willing buyer , wiling seller basis.
The more realistic long-term outcomes tend to involve structured negotiation and compensation.
What About Mortgages, Lenders, and Property Values?
Following media reports from outlets such as Global News and The Wall Street Journal, concerns have been raised about financing uncertainty.
Legally, lenders can still fund transactions. However, from a risk-management perspective, uncertainty may result in:
- More cautious underwriting
- Stricter lending conditions
- Delays in development financing
Appraisers typically require objective market evidence before applying a stigma discount. Perception alone is not enough — but market reaction can influence behavior.
Practical Advice for Homeowners and Buyers
If you already own property:
- Do not panic sell.
- Review your title insurance coverage.
- Monitor credible legal updates rather than headlines.
If you are buying this year:
- Ensure strong title insurance is in place.
- Understand your lender’s financing conditions.
- Make decisions based on legal analysis — not speculation.
What Happens Next?
The decision is under appeal, and multiple stakeholders are closely watching its progress.
The courts are being asked to balance two foundational principles:
- Constitutional recognition of Indigenous rights
- Stability and certainty in private property systems
Historically, Canadian courts have favoured negotiated, economically workable solutions over disruptive ones.
The Bottom Line
The Cowichan land claim case does not suddenly erase private property rights in British Columbia. Aboriginal title has been recognized in Canadian law for decades. What is evolving is how reconciliation is implemented in modern land use and development.
For a deeper discussion on UNDRIP, DRIPA, Section 35, and what this case may mean for homeowners and investors, we invite you to listen to our full conversation on the The Vancouver Life Podcast.
If you have specific concerns about land claims, development risk, or property transactions, our Aboriginal and real estate law teams at Watson Goepel LLP are available to assist.
You can listen to the full interviews at the links below
Spotify
Apple Podcast
Disclaimer: This content is provided solely for informational purposes and is not intended for use in any legal proceeding. You should consult a qualified lawyer for advice tailored to your specific circumstances.
