A recent B.C. Supreme Court ruling has intensified long-standing concerns about the direction of Indigenous-rights jurisprudence in Canada. In Cowichan Tribes v. Canada, Justice Barbara Young recognized that the Cowichan may hold Aboriginal title to a major tract of land in Richmond—land that has been surveyed, subdivided, and privately owned for more than a century. While the court did not transfer property or invalidate existing titles, the judgment rests on principles and evidentiary approaches that critics say could destabilize the foundations of Canada’s property-rights system.

As Peter Best argues in Manufactured Judgements: How Canada’s Courts Promote Indigenous Radicalism (C2C Journal, 2025), the case illustrates a broader judicial shift: courts are increasingly interpreting history, Aboriginal rights, and Crown obligations through the lens of reconciliation, sometimes in ways that depart from established legal norms, evidentiary standards, and basic assumptions about the security of freehold property.

Historical Context and the Cowichan Claim

The Cowichan, based on Vancouver Island, assert that a portion of modern Richmond corresponds to an ancestral summer fishing site. Their claim rests largely on oral traditions and historical references, including Governor James Douglas’s 1853 pledge to treat the Cowichan “with justice and humanity.”
At the time, mainland British Columbia had not yet been formally established as a British colony; governance was conducted through the Hudson’s Bay Company.

After Confederation in 1871, the disputed lands were surveyed, granted, and sold as fee-simple parcels. These titles have since passed through generations of owners, now covering dense residential neighborhoods, commercial districts, and major infrastructure. A witness in the case estimated the present value of the affected area at approximately $100 billion.

The Cowichan assert that their title to the land was never extinguished. Justice Young agreed that Douglas’s 1853 actions engaged the “honour of the Crown,” giving rise—retroactively—to a fiduciary obligation that the court believes may have been breached when settlers later acquired the land.

Shifts in Terminology, Ceremony, and the Courtroom Atmosphere

Best notes that the judgment reflects more than a legal analysis—it also signals cultural and symbolic alignment. Justice Young explicitly avoids the term “Indian,” adopts Indigenous linguistic framing, and opens proceedings with hən̓q̓əmin̓əm̓ phrases such as Huychqʼu, without translation. She thanks Indigenous witnesses for their “bravery” in testifying.

Best argues that such gestures, however well intentioned, risk creating the perception that the court identifies with one side’s worldview. Similar patterns appear in other major cases, such as Restoule v. Ontario and Gitxaala v. B.C., where courts incorporated Indigenous ceremonies, eagle staffs, and spiritual claims directly into proceedings. Higher courts, including the Supreme Court of Canada, have endorsed such practices.

While symbolic recognition is not inherently problematic, Best contends that the cumulative effect may undermine the appearance of judicial neutrality.

Evidentiary Standards: Expanded Oral Histories, Reduced Weight for Documentary Records

A central critique concerns how the court treated historical evidence.

Justice Young acknowledges that oral history “includes subjective experience” and may contain elements “not entirely factual.” Yet she relies heavily on recently recorded testimony to support the Cowichan claim, while discounting earlier documentary sources.

For example:

• Older anthropological evidence, such as the work of Diamond Jenness—who reported that Cowichan leaders in the mid-19th century denied fishing rights on the lower Fraser—was treated as less credible.
• Hearsay rules were relaxed, consistent with existing Supreme Court precedents (Delgamuukw, Tsilhqot’in), allowing extensive oral and spiritual testimony that would be inadmissible in other civil trials.
• In Gitxaala, courts recognized the existence of naxnanox (supernatural beings) and restricted mining exploration to avoid disturbing their “dens.” Best argues that importing spiritual cosmology into secular legal frameworks risks eroding basic evidentiary principles.

From his perspective, the cumulative effect is an evidentiary imbalance that places spiritual narratives and reconstructed oral histories on equal or greater footing than contemporaneous written records.

Historical Judgments Applied Selectively

Best argues that the judgment applies modern legal and moral frameworks to colonial actors—accusing them of dishonourable conduct—while refusing to apply modern moral standards to pre-contact Indigenous practices such as warfare, enslavement, or internecine violence. This asymmetry, he argues, reflects a reconciliation-oriented narrative that treats Indigenous groups as bearers of inherent moral authority while treating colonial figures primarily as agents of oppression.

The “honour of the Crown,” originally a narrow doctrine designed to ensure fair dealing in modern administrative decisions (Haida Nation, 2004), is expanding into an all-purpose lens for assessing and revising historical events. When applied retroactively to 19th-century decisions, Best contends, it risks collapsing the distinction between historical understanding and contemporary political aspirations.

Implications: Legal and Social Consequences

Although the Richmond ruling does not extinguish private property rights, it raises several concerns:

1. Uncertainty in Freehold Property Systems

If courts continue to recognize Aboriginal title in densely settled regions, the legal interface between ancient claims and freehold property becomes increasingly unclear. Even if governments—not homeowners—carry the liability, uncertainty around title affects markets, investment, and long-term planning.

2. A Growing Precedent

Should appellate courts affirm the judgment, it may encourage similar claims in other urban or developed areas. The jurisprudential trajectory appears to be expanding the geographic and historical scope of Aboriginal title.

3. Financial Risk for Governments and Taxpayers

A potential $100 billion liability—referenced in testimony—highlights the scale of future compensation, negotiation, or settlement costs.

4. Judicial Activism and the Role of Courts

Best argues that many judges now see themselves as agents of reconciliation, advancing broader societal transformation rather than resolving discrete legal disputes. Whether one views that as overdue correction or ideological mission, the implications for democratic legitimacy and legal certainty are substantial.

Conclusion

Peter Best’s critique raises difficult but important questions. The evolution of Aboriginal title law reflects sincere efforts to redress historical wrongs—but also reveals an increasingly expansive approach that reaches deep into settled expectations about property, historical evidence, and judicial neutrality.

The Cowichan case illustrates the tension between reconciliation and legal stability: a conflict not easily resolved, but one that demands scrutiny, clarity, and public debate.

Glossary of Legal Terms

Aboriginal Title
A constitutionally protected form of land ownership held communally by Indigenous groups, based on pre-contact occupation. It is distinct from fee-simple title and is difficult to extinguish without explicit government action.

Chain of Title
The documented historical sequence of legal transfers from the first grant of land to the current owner.

Fee-Simple Property
The most complete form of private land ownership in Canadian law, allowing full use, sale, and inheritance, subject only to zoning and taxation.

Fiduciary Duty
A legal obligation requiring one party (e.g., the Crown) to act with loyalty, fairness, and care toward another (e.g., Indigenous peoples), particularly in matters involving land or treaty rights.

Honour of the Crown
A legal doctrine requiring governments to act honourably in their dealings with Indigenous peoples. Courts apply it broadly, including to historical events, treaty interpretation, and modern administrative actions.

Hearsay Rule
A rule that generally excludes statements made outside court from being used as evidence. In Aboriginal rights cases, the rule is relaxed to allow oral histories.

Nullity
A legal status meaning something—such as a deed or grant—is void from the outset and therefore lacks legal effect.

References

Best, Peter. “Manufactured Judgements: How Canada’s Courts Promote Indigenous Radicalism.” C2C Journal, September 30, 2025.
https://c2cjournal.ca/2025/09/manufactured-judgements-how-canadas-courts-promote-indigenous-radicalism/

Supreme Court of Canada. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

Supreme Court of Canada. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.

Supreme Court of Canada. Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.