Legal Opinion on Musqueam Land Claim Impacts to Private Property
- Mar 16
- 4 min read
Updated: Mar 16
Veteran British Columbia lawyer Wes Mussio analyzed the recent Federal Government agreement with the Musqueam Indian Band that has triggered so much controversy. Their land claim title area comprises much of Metro Vancouver, and more than a trillion dollars of real estate values in private and publicly owned residential, business and Crown properties. Already, bands with competing land claims in this overlapping territory have registered their challenges to this agreement. You may recall this secretly negotiated agreement was presented as a done deal with zero public knowledge or input. Even the British Columbia Premier David Eby claimed he had 'no line of sight' on this agreement despite having attended the signing ceremony. Here is a plain-language legal summary of this agreement. By Wes Mussio On February 20, 2026, the Musqueam Indian Band and Canada signed a set of agreements recognizing Musqueam Aboriginal rights, including title within their traditional territory.
After the public became aware of this agreement recognizing Aboriginal Title over a vast swath of densely populated land in the Lower Mainland, there has been justifiable outcry from landowners and businesses. The federal government and the Musqueam Indian Band have fired back suggesting the agreement is a nothing burger and does not impact private land ownership. However, if one looks at the agreement and the law it is hard to imagine how those non-binding verbal assurances from the feds and the Band are credible. No Exclusion of Private Land in Musqueam Agreement Indeed, nowhere in the agreement is there an exclusion of private land.
Section 35 of the Canadian Constitution recognizes Aboriginal and treaty rights:
35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The Supreme Court of Canada (“SCC”) in Tsilhqot’in Nation v. BC (2014), awarded 1,750 square km of crown land to the First Nations. In so doing, the SCC defined Aboriginal Title as:
“a beneficial interest in the land itself… conferring the right to decide how the land will be used and the right to enjoy, occupy and possess the land.”
Put another way, in Tsilhqot’in Nation v. BC , the SCC described Aboriginal Title as:
a beneficial interest in the land itself;
conferring the right to decide how the land will be used;
giving the right to control and benefit from the land; and
including exclusive occupation.
No doubt the SCC was influenced by Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as the Declaration takes a similar view on what is Aboriginal title:
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
Note that the agreement specifically adopts UNDRIP as the minimum standard/law to apply to the agreement.
In the Cowichan Tribes v. Canada decision (2025), a B.C. judge held that Aboriginal Title is a “prior and senior right” relative to other property interests.
In Ontario, the Court of Appeal in 2025 (Chippewas of Saugeen First Nation v. South Bruce Peninsula) found that private land owners did not have lawful title to 2.5 km of beachfront because the Crown wrongly deeded the land to non-aboriginals many years ago when there was Aboriginal Title over the land. The court ignored the fact that the landowners were bona fide purchasers. The SCC did not intervene to stop the land back decision.
If the court takes the plain meaning of the agreement and does not step in and apply protective doctrines like bona fide purchaser, laches (delay in making a claim) or the need for land title certainty, the following is in play:
A. Private ownership becomes subordinate Fee-simple ownership could be treated as burdened by Aboriginal title, meaning: • the title holder ultimately controls land use • private owners hold a secondary interest B. Consent required for land use Development or changes to land use might require consent of the Indigenous title holders, including: • zoning changes • subdivision • major construction • infrastructure
C. Possible land rents or access rights Aboriginal Title holders could assert rights to: • collect rents or royalties • require access across land • impose land stewardship rules D. Potential expropriation or reclamation Aboriginal Title holders could argue for: • transfer of land ownership • land return through negotiations or settlements • restrictions preventing continued occupation
So when the feds and the Musqueam Indian Band try to suggest this agreement is a nothing burger, I say step back and read the agreement in conjunction with the case law and UNDRIP. No one can reasonably argue the agreement is of no concern to private landowners after you do that. The simple cure is to immediately amend the agreement to clearly state that private land is excluded from the Aboriginal Title claim and/or the agreement is simply a ceremonial agreement and not a section 35 of the Constitution affirmation of Aboriginal Title. Until the feds do that, you can rest assured that private land is definitely on the table for future negotiation in their every evolving Land Back initiative. Wesley Mussio | Managing Partner MUSSIO GOODMAN www.mussiogoodman.com
Practicing law in British Columbia and Washington State
GET ADDITIONAL LEGAL OPINIONS ON OUR WEBSITE PAGE
https://www.homesnotbankmachines.com/indigenouslandclaims
We welcome your thoughts. Please take our poll!
Follow us @HomesNotBankMachines Share if you care.
