Authors: Henry Challen & Martin Whittaker
Chief Sulsulxumaat, Cindy Daniels, of Cowichan Tribes.
We are now seeing what happens when the constitutionally enshrined rights of Indigenous Peoples come face-to-face with what scholars have called the “sacred cow” of the Canadian political economy: colonially appropriated private property.
According to historian Bryan Palmer, in Canada, colonialism and capitalism developed inseparably, dispossessing vast swaths of Indigenous lands via a process of “primitive accumulation”. This accumulation established the state’s primary legal authority alongside a racialized hierarchy, ensuring that land would remain, in Patrick Wolfe’s words, the “specific, irreducible element” of the Canadian colonial state.
Today, as Canada faces mounting threats to its own sovereignty, Indigenous Peoples continue to assert their land rights—with increasing ascendance in the courts. Recent decisions have confirmed that Aboriginal title claims, where appropriate, may supersede private property rights.
Until recently, this outcome was widely considered unthinkable. Legal scholars largely assumed that Aboriginal title would be granted only so far as private property remained undisturbed. Today, as courts increasingly reject that assumption, the long-standing “land question” in Canada has potentially entered a new and unsettled phase.
Aboriginal Title: A Distinct Interest in Property
Canada is one of the few Western democracies without constitutionally-protected private property rights. Instead, private property is held through Crown-granted interests in land, most notably fee simple: the highest estate recognized at common law, thought to be indefeasible against all other claims.
Nevertheless, Aboriginal title exists as a “sui generis” constitutionally protected interest in land, recognized since the Royal Proclamation of 1763 and affirmed in s. 35 of the Constitution Act, 1982. Aboriginal title is the strongest interest that Indigenous Peoples can hold.
Although it has existed in principle since 1763, the modern legal test for Aboriginal title was articulated only in 1997 in the Supreme Court of Canada’s landmark decision in Delgamuukw v. British Columbia. To establish title, Nations must prove:
- Sufficient occupation before colonial sovereignty;
- Present occupation; and
- Continuous occupation.
For centuries, the courts avoided confronting how successful title claims would affect land held in fee simple, as most claims occurred in Canada’s “hinterlands”—areas of high resource extraction, rather than areas of permanent colonial settlement, the places where settlers live and own property.
This avoidance may no longer be possible.
Judicial Expansion of Aboriginal Title Claims
In 2003, the Saugeen First Nation of eastern Lake Huron brought a legal claim asserting Aboriginal title over prime beach and lakefront land now held by private landowners as well as the town of South Bruce, Ontario, alleging the Crown had breached its fiduciary responsibility. In 2021, the claim was dismissed on the basis that the Nation had failed the established Aboriginal title test.
In 2024, however, the Ontario Court of Appeal ordered a new trial. While declining to establish a categorical rule regarding Aboriginal title over fee simple lands, the court held that, in this case, “the constitutionally-protected, spiritual connection of Saugeen to its unceded Reserve land outweighs the commercial interests” of the fee simple landowners. After decades of litigation, the Saugeen discontinued the case, citing the “incredible burden” imposed by Canada’s legal system, both administratively and financially. Nonetheless, the decision signaled a potentially critical doctrinal shift.
In British Columbia—where most territory outside of Vancouver Island and Treaty 8 remains unceded—the “land question” remains a live political and legal issue. Historically, Aboriginal title litigation occurred far from the Lower Mainland. That changed with Cowichan Tribes v. Canada (2025), in which the Supreme Court of BC held that Aboriginal title may “burden” fee simple land without entirely displacing it; rejecting an all-or-nothing solution. Instead, Justice Young emphasised a form of coexistence grounded in reconciliation as the path forward. While the precise contours of said coexistence were left unresolved, the decision confirms that private property is not immune from constitutional Aboriginal title claims.
Public reaction has been mixed. While some call for calm, others warn that all private property is under threat. As Justice Young made clear, however, reconciliation, not expropriation, is the path forward.
By contrast, in J.D. Irving, Limited et al. v. Wolastoqey Nation (2025), the New Brunswick Court of Appeal declined to grant a declaration of Aboriginal title over privately held fee simple lands, where the claim encompassed over half the province. Despite this rejection, the Court affirmed that compensation and damages against the Crown for initially granting the titles would remain available.
The Evolving Land Question in Canada
Canada’s state institutions have long resisted any meaningful compromise between Indigenous worldviews and the colonial-capitalist state, each fundamentally rooted in land. However, recent judicial developments in Canada suggest a shift towards recognizing Aboriginal title across the country, when appropriate, regardless of subsequent fee simple ownership.
If Canada is to confront generational challenges on the horizon, reconciliation must meaningfully address the land question. As Chief Justice Lamer observed nearly thirty years ago in Delgamuukw, “let us face it, we are all here to stay”.
