Aboriginal Title Litigation: Cowichan Tribes v. Canada (Attorney General) 2025

Course Chairs
David M. Rosenberg, KC — Rosenberg Law, Vancouver
David M. Robbins — Woodward & Co. Lawyers LLP, Victoria

About the Course Chairs
David Rosenberg is a litigator who has appeared more than a thousand times in the courts of BC and provinces across Canada. He has been senior, lead counsel on several major appeals to the Supreme Court of Canada in constitutional, civil, criminal, and First Nation's cases. David was lead counsel for the Tsilhqot'in Nation on the successful appeal to the Supreme Court of Canada which established the existence of Aboriginal Title in Canada.

Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] 2 SCR 257

David was an adjunct professor at the Faculty of Law, UBC, where he taught for more than 20 years. He taught Aboriginal Law to higher level law students. David has also been a frequent guest lecturer for CLEBC and PLTC for articled students.

David graduated from the University of Toronto with a degree in Philosophy and from UBC with a law degree in 1978. After clerking for the Chief Justice of the Supreme Court of BC, David was called to the bar in 1980 and was appointed Queen's Counsel in 2009. He holds the highest possible rating for legal ability (A) and ethics (V) in Martindale-Hubbell, an authoritative and global source for rating lawyers and law firms. David is the founding partner of his firm which opened in 1980.

David was a director and sat on the board of Ecojustice, Canada's largest environmental charity. He acted as chair of the Litigation Committee.

Recently, David was part of the litigation team representing the Cowichan Nation in the case of Cowichan v. Canada (Attorney General), 2025 BCSC 1490.

In his role of partner at Woodward and Company, David Robbin's core law practice is focused on finding remedies for historic and ongoing Crown interferences with Aboriginal occupation and use of lands and resources.

David is lead counsel for the Quw'utsun (Cowichan) Nation in their landmark recent judgment Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490: the Court declared Quw'utsun Aboriginal title to settlement lands on the main channel of the Fraser River in Greater Vancouver and Aboriginal right to fish adjacent waters for food; it also issued precedent setting declarations that Canada and Richmond's fee simple titles are invalid, while BC has a duty to negotiate reconciliation of the Crown granted fee simple interests held by third parties with the Quw'utsun Aboriginal title.

David was also counsel for the Tsilhqot'in Nation in both their landmark rulings: in Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700, the trial court found Tsilhqot'in Aboriginal title, being the first judicial recognition of existing Aboriginal title, along with a Tsilhqot'in Aboriginal right to hunt and trap for a moderate livelihood; on appeal in Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, the Supreme Court of Canada issued the first ever declaration of Aboriginal title in Canada.

Having earned degrees in law from the University of Victoria and philosophy from UBC, David's 24 years of practice have seen him advocate successfully for Indigenous Nations at all levels of court, including as interveners (e.g., Shot Both Sides v. Canada, 2024 SCC 12; Williams Lake Indian Band v. Canada, 2018 SCC 4). Prior to being called to the BC bar in 2001, David was a judicial law clerk to the BC Supreme Court and BC Court of Appeal. He has variously been a guest lecturer in law school programs at the University of Victoria, UBC, and Osgoode Hall, Toronto.

Faculty
Josh Boutin — Woodward & Co. Lawyers LLP, Victoria
Candace Charlie — Woodward & Co. Lawyers LLP, Victoria
Alexis Giannelia — Woodward & Co. Lawyers LLP, Victoria
Ian Kennedy — Rosenberg Law, Vancouver
Ava G. Murphy — Woodward & Co. Lawyers LLP, Victoria
Jessica Proudfoot — Woodward & Co. Lawyers LLP, Victoria

Course Materials Contributor
Julian Riddell — Woodward & Co. Lawyers LLP, Victoria

Click here for full faculty bios

• the length and complexity of Aboriginal rights civil trials
• the Twin Pillars

• proper title (and rights) holder
• sufficient occupation
• exclusive occupation
• continuity
• submerged lands 

• Governor Douglas Promise, 1853
• Governor Douglas Appropriation, 1859
• Continued Colonial Appropriation, 1859-1871
• Continued Constitutional Appropriation: Article 13, BC Terms of Union, 1871
• Unauthorized Crown Grants, 1871-1875

• extinguishment
• displacement
• indefeasibility

• estoppel
• limitations
• bona fides purchaser for value
• laches

• Crown infringement (e.g., by Crown grants of fee simple title)
• absence of Crown justification

• culturally integral pre-contact practice
• continuity: colonial disruption; permission
• nature of the Cowichan (Quw'utsun) Nation fishing right

• Cowichan (Quw'utsun) Nation Aboriginal title and right
• unjustified Crown infringement of the Aboriginal title (e.g., by Crown granted fee simple)
• publicly held fee simple is defective and invalid
• Crown duties to negotiate reconciliation (e.g., BC re privately held fee simple)

• should you pay your taxes?
• should lawyers charge their First Nations clients PST on legal fees for Aboriginal title litigation?