CAN ABORIGINAL TITLE BE DECLARED OVER PRIVATELY OWNED LANDS

AND THUS SUPERSEDE PRIVATE PROPERTY RIGHTS?

The decision of the Supreme Court of British Columbia in Cowichan Tribes v. Canada (Attorney General) has caused consternation in British Columbia and elsewhere in Canada. In that case the BCSC granted a declaration of Aboriginal title to a large tract of land located in the City of Richmond along the Fraser River [just to the east of Vancouver International Airport]. The lands in question included government owned lands - plus privately owned lands.

This decision has been interpreted by some as invalidating private property rights in favour of aboriginal title to the same land. It has been argued that the court’s judgment meant that title to lands owned and occupied by private individuals and corporations, issued under the BC Land Titles system, would be legally defective and invalid. It would follow that the lands in question could be returned to the First Nation claimants, as the lawful owner of that land, or that compensation would have to be paid by private parties who thought that they owned the lands, since their title to the land has been determined to be invalid.

Is this a fair and correct interpretation of the Cowichan Tribes case?

Can Aboriginal title be declared in respect of privately owned lands?