British Columbia: A Litigation: General Commercial Overview

Trade War With the United States

Donald Trump’s round of tariffs issued on 31 August 2026, further to section 338 of the Smoot-Hawley Act of 1930, disproportionately affects British Columbia (BC), Ontario and Quebec, but generally leaves Canada’s energy and potash-producing provinces, Alberta and Saskatchewan, alone. Most of the latest tariffs are at 50%. In BC, the new tariffs adversely affect forestry, aluminium, steel and the fishing sector, plus a wide range of other products. In the case of the forestry, aluminium and steel industries in the province, the section 338 tariffs are in addition to previous tariffs imposed by the Trump Administration in March, 2025.

Political Situation in BC

The current provincial government of BC is comprised of the members of the Legislative Assembly (MLAs) who belong to the left-leaning New Democratic Party (NDP). The leader of the NDP in the Legislature, and therefore the premier of the province, is David Eby, a former attorney general of BC. The current composition of seats in the Legislature is 47 NDP, 28 BC Conservative Party, two Green Party, and 14 Independents. Thus, the government has a majority and can pass legislation without the co-operation, and over the objections, of the official opposition, the Conservatives.

The political scene in BC is currently in a relative state of turmoil. The NDP government is very unpopular. The province has record-high debt, and its economy is threatened by a number of forces, including the trade war with the US, which affects key industries, especially in the province’s interior. As with other jurisdictions around the globe, there is growing frustration among the electorate about the cost of living, lack of growth, joblessness, and threats to the BC health-care system.

At a provincial election in October 2024, the NDP nearly lost to the Conservative Party. The BC Conservative Party is generally right wing and, in some instances, can be described as hard right. The final vote tally in terms of seats in the Legislature was 47 NDP out of 93 contested ridings. The Conservatives came from nowhere to win 44 seats, shocking the government, with the remaining two seats going to the Greens.

The NDP’s hold on power seemed extremely tenuous. However, the BC Conservative Party in late 2025 and 2026 began to fracture. Its leader, John Rustad, previously ejected from the caucus of the old BC Liberal Party for his views denying climate change, was deposed. There was a leadership race, and Kerry-Lynn Findlay, a Vancouver lawyer, was elected leader.

Ms Findlay’s professed ideology is all about “faith, family, and freedom”. These views, plus an alleged lack of communication, turnover of key staff, and a hard-right ideology, have led 14 Conservative MLAs to quit the party and sit as Independents in the Legislature.

Several of those MLAs intend to start a new, as-yet-unnamed party that will be moderate in its social views and conservative about finances. It is likely that a centre to centre-right party will emerge, splitting the Conservative vote.

The Decision in Cowichan Tribes v Canada (Attorney General) 2025 BCSC 1490

On 7 August 2025, Justice Barbara Young of the Supreme Court of British Columbia released her mammoth decision, numbering more than 800 pages, in the Cowichan Tribes case. This followed a marathon trial lasting 513 days over several years that stands as one of the most complex trials in Canadian legal history. The decision in Cowichan Tribes has potentially momentous consequences for the concept of fee simple title (that owners own their land and that their title is “good against all the world”, as the saying goes) in BC and perhaps beyond.

The Cowichan Nation, made up of the Cowichan Tribes, the Stuz’uminus First Nation, the Penelakut Tribe, and the Halalt First Nation, sought legal recognition of its traditional lands located on Lulu Island, across the Fraser River from Vancouver International Airport, in Richmond BC. Richmond is a bustling and densely populated suburb of Vancouver. The plaintiffs also sought recognition of their aboriginal right to fish the south arm of the Fraser River, a waterway that is crucial to the economy of BC generally and Vancouver in particular.

The court declared that the Cowichan Nation holds legal title to 40% of the claimed 1,846-acre area. This was claimed by the plaintiffs as their ancient village, Tl’uqtinus, where their ancestors from time immemorial had lived and fished seasonally. The modern-day City of Richmond sits over the claimed area, including its private residences, medium industry, and agricultural land.

The plaintiffs also established that, again from time immemorial, they had fished in the waters of the south arm of the Fraser River.

The court invalidated the historic Crown grants of fee simple, some from more than 100 years ago, to various bodies such as Canada, the City of Richmond and the Vancouver Fraser Port Authority, and ruled that those grants constituted an unjustified infringement upon aboriginal rights and are “defective”. The court, despite finding that aboriginal title and fee simple title can “co-exist”, found that the aboriginal title enjoyed by the Cowichan Nation is a senior interest to fee simple and amounts to a burden upon fee simple.

In other words, landowners in the subject area potentially do not have clear title over “their” land.

The decision explicitly does not target private landowners or invalidate title. This is due in part to the fact that the plaintiffs were careful not to sue private landowners. Additionally, no doubt anticipating the firestorm the decision would create, the court suspended the effects of its decision for 18 months to allow government-to-government consultations and attempts at resolution through reconciliation.

Several legal observers have characterised the decision in Cowichan Tribes as “momentous”. It throws into question the concept of fee simple rights as being inviolate. If the Cowichan Tribes can demonstrate in court that they, in fact, have superior title over lands thought to be owned by settlers, the potential for similar lawsuits by many other First Nations in BC involving the vast majority of the populated lands of British Columbia becomes very real. This in turn injects a large element of uncertainty about the wisdom of future economic investment in the province.

In the wake of the decision, all parties, and especially the provincial government, called for calm. All parties have filed appeals. The legal saga of the Cowichan Tribes case will continue. Barring some unforeseen negotiated settlement, the case will almost certainly be for the consideration of the Supreme Court of Canada in the years to come.