Uncertain Ground: How the Cowichan Decision is Reshaping Real Estate Valuation in British Columbia

Background

The Supreme Court of British Columbia’s landmark Cowichan Tribes v. Canada decision decision on August 7, 2025 has sent ripples through B.C.’s real estate and finance communities. The case raises fundamental questions about the indefeasibility of fee simple property rights, mortgageability, valuations, property tax assessments and the municipal tax base, and investment confidence. Key paragraphs from Justice Young’s decision include (emphasis added):

[2193] I agree that Aboriginal title is a prior and senior right to land. It is not an estate granted by the Crown, but rooted in prior occupation. It is constitutionally protected. The question of what remains of Aboriginal title after the granting of fee simple title to the same lands should be reversed. The proper question is: what remains of fee simple title after Aboriginal title is recognized in the same lands?

[3551] …A precedent that will follow from this case is that provincial Crown grants of fee simple interest do not extinguish nor permanently displace Aboriginal title, and ss. 23 and 25 of the LTA [Land Titles Act] do not apply to Aboriginal title.

[3588] The fee simple interests do not displace Cowichan Aboriginal title. Aboriginal title is a senior, constitutionally-protected interest in land. However, the Cowichan have not challenged the validity of the private fee simple interests and those interests are valid until such a time as a court may determine otherwise or until the conflicting interests are otherwise resolved through negotiation…

All parties to the case have filed notices of appeal. The trial court recently heard and rejected a separate application from Montrose Properties – one of the private landowners affected by the decision – to reopen the case on the grounds that it was wrongly excluded from the original proceedings; Montrose is now appealing that ruling. With no resolution date set, legal observers expect the full appeal process could take several more years to conclude.

Paul Sullivan, Principal, Practice Leader Advocacy and Tax Policy Canada at Ryan LLC, has spent years navigating complex valuation challenges across the province. In this conversation with Dr. David Williams, BCBC’s Vice President of Economics, Sullivan explains what the emergence of dual land interests means for professional appraisers – and what it could mean for landowners, investors, lenders, and the broader British Columbian real estate market.