The Supreme Court of Canada in Ottawa.Justin Tang/The Canadian Press
The Supreme Court of Canada is being asked to consider a clash between Aboriginal title and private land in a New Brunswick case that would have significant national implications.
Last December, the New Brunswick Court of Appeal ruled that the Wolastoqey Nation could not seek a declaration of Aboriginal title over private property as part of its claim against the province over large swaths of western New Brunswick.
The decision was a sharp contrast to a lower-court ruling in British Columbia last summer. After a trial that stretched five years, the B.C. Supreme Court declared that the Cowichan Tribes had Aboriginal title to about 800 acres in the Vancouver suburbs.
In the Wolastoqey case, New Brunswick appeal court Justice Ernest Drapeau wrote that he was “unable to see” how Aboriginal title could co-exist with private land, known as fee-simple ownership. He stated that a declaration of Aboriginal title over such land “would sound the death knell of reconciliation.”
In the Cowichan case last August, B.C. Supreme Court Justice Barbara Young concluded that a declaration of Aboriginal title had a “prior and senior right” to existing private landowners with fee-simple title. The B.C. ruling sparked widespread concerns. The federal and B.C. governments are planning to appeal to the B.C. Court of Appeal.
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Now, at the Supreme Court of Canada, the Wolastoqey are calling on the top court to enter the fray to settle the legal uncertainty.
“There is an urgent need for this Court to clarify the law of Aboriginal title as it relates to fee-simple land,” the Wolastoqey said in their application to the Supreme Court to have their appeal heard, filed in February.
“Until the question of whether Aboriginal title can be declared over fee-simple lands is clarified, title claims in various stages of litigation across Canada will face uncertainty.”
Six years ago, the Wolastoqey launched their claim for Aboriginal title on their traditional territory, which covers both Crown and private land. Companies that owned land in the claim area, including J.D. Irving Ltd., sought to be excluded from the case.
In 2024, the New Brunswick Court of King’s Bench ruled that the Crown was the only proper defendant but said the Wolastoqey could still seek a declaration of Aboriginal title over the private land.
It was this possibility of a declaration of Aboriginal title on private land that the province’s appeal court rejected last December. This is the heart of the potential case at the Supreme Court. An actual trial in the lower courts on the Wolastoqey’s main claim has not yet occurred and could take years.
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At the Supreme Court, most of the legal documents required for the top court’s deliberations on whether to hear the Wolastoqey case had been filed as of last week. Based on recent averages, the top court could issue a yes-or-no decision on taking the case by June, but a decision could stretch months longer because the legal issues are complicated.
Several opponents say the Wolastoqey case isn’t the right one for the Supreme Court to decide on the broader national issues of Aboriginal title and fee-simple title.
In response to the Wolastoqey last week at the Supreme Court, J.D. Irving said the decision at the New Brunswick appeal court was procedural. The company argued that because there has not been a full trial on the Wolastoqey claim in the lower courts, there isn’t a proper court record or findings of fact for the Supreme Court to consider.
The company said the Supreme Court should wait to hear an eventual appeal of the Cowichan case after it moves through the B.C. Court of Appeal.
“That case is a far better forum than this one for consideration of any issue concerning the interaction of Aboriginal title and fee-simple title,” J.D. Irving said in its legal filing.
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The Cowichan are seeking to intervene at the Supreme Court with their own arguments. They want the Supreme Court to decline the Wolastoqey case and the broader question of whether Aboriginal title can exist over privately held lands.
“It is seldom satisfactory for a point of law of such sweeping, national importance to be decided before a full factual record has been ascertained at trial,” the Cowichan said in their filing to the top court last week.
Retired appellate court judge Joseph Robertson said the proposed Wolastoqey appeal is of significance to all Canadians and the absence of a lengthy factual record from a trial in the lower courts could make it more straightforward for the Supreme Court to settle the legal questions. He added that it will take several years before the Cowichan case is decided at the B.C. appeal court.
“I cannot see why the Supreme Court would not accept the Wolastoqey case,” said Mr. Robertson, who served on the New Brunswick Court of Appeal from 2000 to 2014 and the Federal Court of Appeal from 1992 to 2000.
Dwight Newman, a law professor at the University of Saskatchewan who has written extensively about the Cowichan decision, said the Wolastoqey case would give the Supreme Court a chance “to speak sooner than later” on Aboriginal title and private property.
“That is obviously a topic attracting enormous attention right now,” said Prof. Newman. “Any opportunity by the Supreme Court to engage directly with the Cowichan case is years away.”