Indigenous Title or Aboriginal Title has unfortunately long been a sort of “I’ll know it when I see it” aspect of Canadian law. The Supreme Court of Canada long held out the tantalizing prospect to Indigenous peoples that Indigenous/Aboriginal Title exists, and that those peoples might even possess it, but despite spending horrific sums of money that they could not afford to spend, and spending decades in the litigation process, the Court kept effectively saying to those same peoples: no, not this time; or good try, but why don’t you try again, we’re sure you won’t mind waiting a few more decades and spending tens of millions of additional dollars in legal fees!!!

In Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313 the Supreme Court of Canada officially recognized the concept of “Indian title,” however the Court split over whether the Nisga’a’s title in north-western British Columbia had been extinguished, leaving the Nisga’a to negotiate one of the first modern “Comprehensive Claims” which led two decades later to a Crown-Indigenous Treaty among Canada, British Columbia and the Nisga’a.

In Guerin v. The Queen, [1984] 2 S.C.R. 335 the Court rebranded Indian title to Aboriginal title, but again recognized the concept, however without confirming any particular Indigneous people held that Aboriginal title.

In Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 SCR 570 the Supreme Court of Canada found that the Temagami Band of Indians had at trial proven Aboriginal Rights rather than Title in north-eastern Ontario, however they had surrendered those rights through adhering to the Robinson-Huron Treaty (which the Crown had breached).

In Delgamuukw v. British Columbia, [1997] 3 SCR 1010, after a marathon 374 day trial, the Supreme Court of Canada again confirmed the potential existence of Indigenous Title in nothern British Columbia, but told the Gitxsan and the Wet’suet’en they needed to redo the trial, because of procedural errors. Having spent over $13 million in legal fees on the trial and appeals, a redo not surprisingly wasn’t something the plaintiffs were keen on doing, and which to date hasn’t progressed.

Finally, almost two decades later in Tsilhot’in Nation v. British Columbia, 2014 SCC 44 in 2014 the SCC recognized Indigenous Title in the central interior of British Columbia, though precisely what rights did and didn’t come with that declaration of Title remains a contentious subject of ongoing negotiations.

Still working their way up to the Supreme Court of Canada, it took another decade for Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490 and The Nuchatlaht v. British Columbia, 2024 BCSC 628/2026 BCCA 137 to be produced, confirming Indigenous Title to a piece of land just south of downtown Vancouver and to a portion of the west coast of Vancouver Island.

While in theory Aboriginal Title involves “an exclusive right to the use and occupation of the land” (Degamuukw at par. 185) against all of the Crown, other Indigenous peoples, and private third parties, to date that exclusivity has never been tested. No one else with an established presence has ever been expelled from such land, and typically those asserting Indigenous title have confirmed they do not have a desire to dispossess others (beyond the Crown), which on a practical level may spawn a host of other litigation.