The Cowichan decision represents one of the most consequential shifts in Canadian property law in decades. By ruling that Aboriginal title can “co-exist” with fee simple title on privately owned lands and is a “senior interest” in the land, the decision unsettles the legal foundation on which millions of Canadians rely when they buy and own a home. It also creates significant uncertainty for businesses, investors and lenders who rely on the security and certainty of the land title system. Since a stable and secure property rights system is central to the healthy functioning of an economy, the Cowichan decision has the potential to cause significant upheaval to British Columbia’s economic landscape with ripple effects being felt throughout Canada and even beyond the Canadian border.

Existing Aboriginal rights are protected under Section 35 of the Constitution Act, 1982. They are profound, but they are not unbounded. Much of the current commentary on the Cowichan decision is focused on whether the decision is consistent with Section 35 and Canadian Aboriginal rights jurisprudence, as well as procedural fairness. These questions reveal serious legal issues and problems that will ultimately be resolved by the courts.

There is a higher‑order constitutional concern that has not received attention but warrants serious........

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