Property rights in Canada under threat from court rulings

Aboriginal title cases are stripping away property rights, leaving Canadians wondering if they really own their homes

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What if your mortgage, your deed, your inheritance—everything you’ve worked for—could be undone not by fraud or financial ruin, but by folklore?

That dystopian premise is no longer theoretical in Canada. The newly released 2025 International Property Rights Index (IPRI), a global benchmark for assessing the legal security of ownership, places Canada among the top 10 nations for protecting property. The IPRI matters because strong property rights are tied directly to economic stability and prosperity; countries with weak ownership protections tend to collapse into poverty or corruption.

And that foundation is beginning to crack.

“For those whose property is in the area outlined in black, the court has declared Aboriginal title to your property, which may compromise the status and validity of your ownership—this was mandated without any prior notice to the landowners,” said the letter to Richmond residents.

These are the words of the mayor of Richmond, B.C., to property owners. In a Canadian first, and what may be the first of many such warnings, the mayor is telling his citizens that the homes and businesses they bought and paid mortgages on for decades could be invalidated because an Indigenous claimant, relying in part on oral tradition, convinced a judge that his ancestors once lived and fished there.

Aboriginal title is a legal concept recognized by Canadian courts that gives Indigenous groups ownership rights protected under the Constitution over certain lands, even if those lands are currently occupied or deeded to others. Until recently, Canadians assumed this mostly affected remote areas.

That assumption has now been shattered in Richmond, where Aboriginal title has been applied to developed urban property.

In an alarming decision, a B.C. Supreme Court judge granted 2,000 Cowichan claimants Aboriginal title (AT) to part of Richmond. That land is worth an estimated $100 billion, or about $12.5 million per claimant. The decision is being appealed but it is based on the 1997 Delgamuukw ruling. In that case, the Supreme Court of Canada ruled that Indigenous oral histories could be admitted as evidence in land claims, opening the door to future cases like Cowichan. By giving constitutional weight to oral tradition, the Supreme Court weakened the certainty of ownership. That certainty is the foundation of any property system.

Since Delgamuukw, if an Indigenous claimant could persuade a judge that their ancestors once used land, a constitutionally protected AT could be placed on top of an existing deed.

Unless the Supreme Court is prepared to reverse the B.C. Supreme Court ruling, Canadian property owners can no longer count on their title being permanent.

Few Canadians noticed at first, since Delgamuukw involved remote B.C. lands. But Richmond is not remote; it is a modern city of more than 200,000 people. For the first time, property owners in a developed urban community woke up to find that their rights could vanish at the stroke of a judge’s pen.

The Cowichan case shows how far the courts have pushed this. Claimants convinced a judge that stories passed down through generations were reliable enough to override existing deeds. That meant owners who had lawfully purchased property suddenly held only “junior” title. To residents of Richmond, the mayor’s warning was not paranoia but fact.

The implications extend well beyond Richmond. In Haida Gwaii, for example, Indigenous claimants and lawyers can meet with a judge without notifying property owners, and have their claims converted into constitutionally protected AT, senior to all existing rights.

This approach is unprecedented in common-law countries. Normally, hearsay is inadmissible because it’s unreliable, yet in Delgamuukw, the Supreme Court created an exception, ruling that Indigenous oral testimony (even seventh-generation hearsay) could prove land claims. As B.C. lawyer Barry Kirkham has noted, there is no basis in law or logic for treating Indigenous oral tradition any more reliable than written records or sworn testimony from anyone else.

Nowhere is the flaw clearer than in the Cowichan case. Cowichan, Musqueam and Tsawwassen witnesses all told different oral histories—each supporting their own claims. The trial judge ultimately found one more credible than the others. That is a shaky foundation for deciding something as precise as land title.

Courts attempting to rectify historical wrongs are reshaping Canadian property law in ways critics say belong to Parliament, not the judiciary. To many, that looks like judicial overreach.

And it is compounded by the fact that some of the most expensive law firms in Canada are advancing AT and “duty to consult” cases, paid for by taxpayers whose property rights are being challenged. Many of those lawyers later become judges.

The danger of weak property rights is not theoretical. In Cuba, after Fidel Castro’s 1959 revolution, the middle class lost its homes and businesses overnight. Families who had worked for generations found themselves with nothing.

The same logic applies here: without secure property rights, prosperity collapses.

Canada has long assumed that ownership was permanent: if you saved for a down payment, paid your mortgage and taxes, and maintained your property, it was yours to keep, sell or pass to your children. The Cowichan case proves otherwise.

Policies aimed at reconciliation have not resolved the deep socio-economic challenges facing many Indigenous communities, despite decades of significant public expenditure. Weakening property rights for all Canadians will not address these challenges.

The Supreme Court’s reliance on oral histories is the fundamental flaw that must be corrected. By making hearsay sufficient to displace lawful ownership, the court undermined the foundation of Canadian democracy.

The consequences are profound. Delgamuukw set off a wave of AT claims across B.C. and beyond, splitting control of land along ethnic lines and encouraging separatist tendencies. In doing so, the Supreme Court jeopardized a system of property rights that dates back to 1066. A Canada without certainty of title is a Canada on fragile ground.

The tragedy is that this could have been avoided. In 1982, Alberta premier Peter Lougheed and Manitoba premier Sterling Lyon wanted property rights to be constitutionally entrenched. They relented only after being assured by Pierre Trudeau and Jean Chrétien that adding the word “existing” before “Aboriginal rights” in Section 35 would prevent judicial expansion.

That assurance has proven empty.

Brian Giesbrecht is a retired judge and a senior fellow at the Frontier Centre for Public Policy.