The Cowichan Decision and Beyond: Letting Go of Zero-Sum Thinking

[Sid Shniad]

https://thetyee.ca/Opinion/2025/11/21/Indigenous-Relations-Letting-Go-Zero-Sum-Thinking/

The Tyee                                                                                                                                                                                                      21 Nov 2025

The Cowichan Decision and Beyond: Letting Go of Zero-Sum Thinking

Responses to the court ruling have stoked fear about private property. There’s a more just and hopeful way forward.

Adam Olsen
Adam Olsen, a former BC Green Party MLA for Saanich North and the Islands and a member of Tsartlip First Nation, is a regular contributor to The Tyee.


A ruling in BC Supreme Court confirmed Cowichan Aboriginal title and fishing rights 

over a stretch of land on Lulu Island next to the south arm of the Fraser River. 

Photo by Darryl Dyck, the Canadian Press.

For the citizens of British Columbia, the Cowichan Tribes v. Canada decision in the B.C. Supreme Court has pulled back the curtain to reveal more of the historic land dispossession in our province.

The case centred on Tl’uqtinus, a traditional village site on Lulu Island located in the south arm of the Fraser River. The court found that the Cowichan established title in a portion of the area they claimed, including submerged lands, and they have a right to fish for food in the area.

The decision outlines that the practice at the time was to set aside Indigenous settlements as Indian reserves; however, Crown grants of fee simple interest over the area and the lands were sold to settlers.

The provincial government said it “disagree[d] strongly” with the decision, adding it would immediately file an appeal.

The government’s urgent reaction has its roots in the fact that the land management system they have exclusively controlled and benefited from is in question. The court determined that “the Province has no jurisdiction to extinguish Aboriginal title,” and that “Aboriginal title lies beyond the land title system in British Columbia.

For decades, First Nations in British Columbia have been treated as stakeholders. It is only recently that the province has begun engaging and consulting First Nations as the constitutionally protected rights-holders they have always been.

This shift occurred because the jurisprudence of provincial and federal courts continued to expose the fundamental flaw in B.C.’s foundation — during the gold rush and land rush of the mid-19th century, representatives of the Crown ignored their own laws requiring land title to be secured by purchase or treaty.

Recent political and social media commentary frames First Nations’ involvement in land governance as an emerging threat or a takeover. However, reconciliation is about confirming the rule of law, moving from legislated exclusion of First Nations to inclusion, and building a shared future together where we can all enjoy the wealth of our province.

Moving beyond the zero-sum mentality

We need to get past the dominant political narrative that frames the Cowichan decision, and First Nations’ involvement in land governance more broadly, as a zero-sum problem.

When First Nations win, the rest of society does not lose. As someone who exists in between, with both Indigenous and European ancestry, I reject the idea that one side’s gain must come at the other side’s expense.

The provincial government has enjoyed the tremendous wealth that is created through the land management system that establishes and secures private property rights.

The provincial government is now hearing from the courts what they always knew — that the Crown’s title at the foundation of that system is not exclusive. The government is facing a fundamental question about how they will share the wealth with the First Nations people who never legally ceded their title.

It is because of the provincial government’s behaviour — generations of failing to work towards solutions for the outstanding land question in British Columbia — that we have questions still to answer about how to ensure private property rights are fully secure.

The courts have told the provincial government — yet again — that it needs to reconcile with the constitutional title and rights of Indigenous Peoples and find ways to constructively share the wealth of the province.

Reconciliation is a future where First Nations take their place as full participants in governance and in the economy through sharing jurisdiction, responsibility and revenue, in real, tangible ways.

Sharing is caring

I envision a future where First Nations communities are not tethered to insufficient grant programs but, rather, are treated like all other government bodies that receive revenue from the wealth generated from their lands and waters.

The biggest impediment to overcoming the generational Crown-Indigenous struggle is the politicians and bureaucrats that see sharing decision-making and revenues with First Nations communities as a loss of their own power and control. This perspective flourishes today, but it is deeply rooted in our colonial past. The conflict is an unnecessary policy choice; there are other, more collaborative approaches where we can benefit together.

When representatives of Tsartlip First Nation met with provincial officials at the First Nations Leaders’ Gathering, we proposed practical options for achieving this. Tsartlip is an entirely urban First Nation with no LNG, pipelines or other major project to benefit from, so our proposal involved sharing the provincial wealth of the major industry in our territory — real estate.

When Tsartlip, and our relatives in neighbouring villages, can access a portion of the revenues from land transfer and property taxes, and land value lifts created exclusively through rezoning and subdivision, we will also be interested in the stability and health of those systems. I believe that inclusion in the economy is an important step in clarifying the question of land title for the concerned British Columbians who own the property rights granted through the provincial land management system.

The Cowichan decision is the result of exclusion; I believe that inclusion will lead to increased accountability and better outcomes for all of society. Providing First Nations access to the economy creates stability, not conflict.

Investing in regional economic resilience

Having worked in Tsartlip for the past year I have seen where the community would invest the revenue. We would build a child-care facility, new treatment rooms in an expanded primary care centre, a new longhouse, new road, water and sewer infrastructure for our underserved relatives, housing, child and family wellness programs, and the list goes on. We would finally be able to address what none of the provincial ministers at the First Nations Leaders’ Gathering had the resources to support — our priorities.

What the provincial officials immediately dismiss is the powerful local and regional economic impact of First Nations having access to the fiscal tools and reliable annual revenue required to access the capital to make those critical investments, and operational funds to sustain the programs and services required in our community.

The result is less direct demand on the provincial treasury to fund these projects. Businesses, citizens and the provincial government would capture revenue a little further down the line when First Nations hire local contractors to build community spaces for gathering and housing to shelter our people, and to restore watersheds and shorelines to increase food security for our bellies. These initiatives would improve the whole region’s well-being.

Currently the provincial government collects all the revenue and provides small grants for First Nations to plan and co-ordinate based on their needs and priorities, and then First Nations wait for the province to agree to fund the priorities.

The approach I suggest here begins providing clarity to the question about title, and it also offers a smarter, more effective and efficient economic model. It is not charity or appeasement; it is good governance that benefits all of society.

A path of reconciliation

Recognizing First Nations as rights-holders and shaping public policy to reflect this principle is not a threat to the current system but a necessary correction to secure it.

Over the decades, subdivisions and rezonings have created more private property interests and wealth, making the situation even more complex. In response, the executive and legislative branches of the provincial government have used their power and control to deny, delay and distract from the unanswered land title question that has been growing like a malignant tumour.

The judicial branch has made treatment unavoidable. We must deal with it. Denial guarantees only more conflict, not resolution.

Continuing an “us versus them,” zero-sum, winners-and-losers approach grounded in exclusive Crown title is not likely to succeed in the courts.

We stand at a crossroads in British Columbia. The road we have followed to this point is no longer tenable. I invite the public and policymakers to embrace a new paradigm of shared responsibility, mutual benefit and enduring partnership.