The Cowichan Decision Explained

This case comment explains the Cowichan decision in light of the key facts and legal principles at work in that case. It reviews the reactions to the decision in light of the prevailing political and economic circumstances, and offers a counterpoint to the criticisms of the decision that have tended to distort and exaggerate its significance. The discussion of the Cowichan case is framed by a brief review of the origins of British Columbia and the concept of aboriginal title. It then highlights that the case arose because senior colonial officials disobeyed directions to protect the Indian settlements from incursions by colonists and instead sold the lands at issue to themselves and each other in furtherance of unlawful land speculation activities. These circumstances require an examination of two different concepts of “title” to lands and how those concepts fit within Canada as a constitutional democracy. The conclusions include that the Cowichan decision is narrowly limited to the particular historical facts in that case; it does not put private property rights at risk across British Columbia; and there are practical limits to aboriginal title that the government can use to manage its future liability for past wrongdoings. In that regard, the Cowichan decision confirms that our existing constitutional framework provides an opportunity for the Crown and First Nations to remedy dishonourable conduct and achieve justice and reconciliation by negotiating mutually beneficial solutions with Cowichan and others.