The British Columbia Supreme Court’s recent decision in Cowichan Tribes v. Canada has attracted a lot of headlines, with some suggesting it signals the end of private property.

The Quw'utsun Nation sought Declarations of Aboriginal title to Tl'uqtinus, their traditional village on the south arm of the Fraser River and surrounding lands, and of their right to fish for food in the south arm of the Fraser.

The judgment certainly deserves careful consideration, but not because it puts individual homes and businesses at risk. That isn’t what the court found, nor was it asked to.

It deserves attention because it calls on governments — and all of us — to honestly confront the unlawful foundations of B.C.’s land system and turn our minds to meaningful remedies.

In her ruling, Justice Barbara Young held that the Crown lacked lawful authority to grant fee simple titles over Cowichan lands in what is today part of the city of Richmond. In her words:

“The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in certain highway lands in the Cowichan Title Lands, unjustifiably infringe the Cowichan’s Aboriginal title.”

The plaintiffs did not ask the court to invalidate the title deeds of homeowners and businesses, and the ruling does not do that. Instead, the Quw’utsun Nation sought accountability from the Crown: the return of provincially and municipally held lands and long-term solutions about all the wrongfully granted titles.

This distinction matters if we are interested in finding solutions about how to live well together, and not just in stirring up controversy.

We tend to view private property as a sacrosanct, never-changing principle. But property rights are legal constructs — never absolute and always evolving. Just as property law has been reshaped to reflect human rights and environmental protections, it must also evolve to address colonial injustices and dispossession.

An unresolved history of land theft

For the Quw’utsun Nation, the court’s decision fits into a broader context of land dispossession. While this case concerns part of its territory along the Fraser River, most Quw'utsun territory is on southern Vancouver Island, where the infamous E&N Railway grants transferred vast areas into private hands without consent, treaty or compensation.

That land grab remains the central obstacle in more than 30 years of ongoing negotiations between the Hul'quimi'num Treaty Group, which represents three of the plaintiff First Nations, as well as the Lyackson and Ts'uubaa-asatx Nations, and the Crown.

In fact, initial colonial incursions into Quw'utsun territory on Vancouver Island were timed such that many members were at Tl'uqtinus when the first governor of British Columbia, James Douglas, arrived with settlers. His promises of compensation were never honoured.

B.C. led Canada in incorporating the United Nations Declaration on the Rights of Indigenous Peoples into law in 2019. Yet now the province has chosen to adopt an adversarial approach, viewing the case as a threat to private property, and will appeal the B.C. Supreme Court decision.

Appeals will only prolong an already painful process. Instead, the government could choose to focus on legal creativity and innovative solutions over endless court battles. On Haida Gwaii, shared governance agreements preserve the respective authorities of the Haida Nation and the Crown and reflect both legal traditions.

In 2021, the B.C. Supreme Court concluded the Blueberry River First Nation’s treaty rights had been infringed upon by the impacts of industrial developments in its traditional territory. The province chose not to appeal, instead pledging to work with Blueberry River First Nation to collaboratively address the impacts of resource development.

In New Zealand, the landmark Treaty of Waitangi settlements likewise embed Māori authority into land-use governance while respecting shared interests in lands and resources.

While not perfect, these examples all demonstrate how a serious engagement with Indigenous law and authority can lead to better and more equitable solutions for everyone.

Quw’utsun law offers tools for shared governance, managing overlapping rights in ways that respect both Indigenous and Crown institutions. For Quw'utsun Mustimuhw (Cowichan Peoples), territoriality is not marked by rigid boundaries but by relationships of reciprocity, kinship and shared use.

This flexible, place-based orientation provides a foundation for governance that can accommodate overlapping interests while maintaining respect and accountability inter-societally and across legal systems.

An invitation to restore good relations

As Chief Cindy Daniels of Cowichan Tribes stated:

“The court’s declaration is important to reconciliation and to correct the historical injustice that was done to us. We will not pursue this with malice and we will conduct ourselves with one mind, one head and one spirit for our culture and community, and for the generations to come.”

Drawing on this principle could replace adversarial conflict with constructive nation-to-nation dialogue. But truth must come first.

Society cannot look away, even when past wrongs are difficult to repair — such as with homes and businesses on unlawfully granted land.

Acknowledging harm does not mean ignoring the interests of current owners, but it does require honesty about the history of how that land was acquired and creativity in finding remedies. Shying away from truth because it is uncomfortable only fuels greater uncertainty and conflict for all parties in the long run.

The Cowichan decision reminds us that reconciliation demands confronting the colonial foundations of Canada’s property system. Governments must accept responsibility rather than hide behind litigation.

Commentators and the public should resist alarmist rhetoric and instead engage with the deeper questions this ruling raises: how to repair relationships, return what can be returned and reshape institutions to reflect renewed relations.

The way we own and manage property and land in Canada is not working: housing inequality is rising, forest fires rage across the country and biodiversity loss has reached emergency levels.

The court’s decision is a chance for a new beginning grounded in an honest reckoning about how property rights were created, and how they can be reshaped to justly and honestly improve how we live together on these lands.

In our view, it is an invitation to imagine and enact transformative change for generations to come.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Sarah Morales, University of Victoria and Estair Van Wagner, University of Victoria

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Sarah Morales is Coast Salish and a member of Cowichan Tribes. Over the past 20 years she has worked with Cowichan Tribes, and other Quw'utsun Nations, on projects related to child and family services, governance and law revitalization. She receives funding from the Social Sciences and Humanities Research Council or Canada.

Estair Van Wagner receives funding from the Social Sciences and Humanities Research Council of Canada.