Based on coverage from CBC, Bloomberg, The Globe and Mail, and Toronto Star.
The Supreme Court of Canada has declined to hear an appeal tied to the Wolastoqey First Nations’ bid to include privately owned land in an Aboriginal title case in New Brunswick. That choice does not settle the national question of whether Aboriginal title can exist on private “fee simple” land, but it does leave a New Brunswick Court of Appeal ruling in place, and it is already being used as ammunition in a major title fight playing out in British Columbia.
For homeowners and businesses watching nervously, the immediate takeaway is this: the top court did not give a yes or no on Aboriginal title over private property. It simply chose not to take this particular case right now.
Supreme Court of Canada declines Wolastoqey appeal
The New Brunswick case involves the Wolastoqey, representing six related First Nations communities, seeking Aboriginal title to a vast area in western New Brunswick, including privately owned industrial lands, as well as airspace, foreshore, lakes and rivers.
So far, the litigation has been largely procedural. The key decision came from the New Brunswick Court of Appeal in December, which overturned a lower court ruling that would have allowed privately owned industrial lands to be included in the claim at this stage. The appeal court drew what it called “an important difference between a finding of Aboriginal title and a judicial declaration of Aboriginal title,” and concluded Aboriginal title could not be declared over private lands.
Chief Patricia Bernard of Madawaska, one of the Wolastoqey communities, said in a statement that the “fight for our homeland will continue,” and that Canadians should expect the Supreme Court will eventually have to clarify the law around privately held lands.
New Brunswick ruling stresses private property rights
Former chief justice Ernest Drapeau, writing for the New Brunswick Court of Appeal, framed the issue through reconciliation. He referenced the Supreme Court’s 2014 Tŝilhqot’in decision and wrote that reconciliation requires balancing Indigenous and non-Indigenous interests.
Drapeau said granting “exclusive possession, occupation and use” to the Wolastoqey over privately owned lands “would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”
Even with private lands excluded, the Wolastoqey can still pursue Aboriginal title claims over Crown land, and the reporting notes they can seek compensation from the province for losses tied to lands that are now privately owned.
Cowichan Nation case in Richmond raises stakes
The New Brunswick decision matters far beyond the Maritimes because it bumps up against a very different ruling in B.C.
In B.C., the Cowichan (Quw’utsun) Nation won a contentious ruling from B.C. Supreme Court Justice Barbara Young after more than 500 days of trial. Young found that the Cowichan Nation’s Aboriginal title extends over about 3.25 square kilometres of land along the Fraser River in the Richmond area, including parcels held as fee simple private property.
Young’s decision said fee simple title and Aboriginal title can co-exist, and that where they overlap, “the exercise of one form of title must yield to the other” while both exist on the same parcel. She ordered the B.C. government to negotiate with Cowichan to reconcile competing interests. Another report flags that lawyers have warned the boundaries of the land covered by the ruling are ambiguous.
The Cowichan decision is described as the only declaration of Aboriginal title in Canada that overlaps existing privately held fee simple titles.
B.C., Ottawa and Richmond line up appeals
The B.C. government has appealed, citing concerns about impacts on private landowners. B.C. Attorney General Niki Sharma said the Supreme Court’s refusal to take the New Brunswick case “gives us a clear path to an appeal here in B.C.”
The federal government is also appealing the Cowichan decision. A spokesperson for Crown-Indigenous Relations Minister Rebecca Alty said “private property rights are fundamental,” and added that the New Brunswick ruling “will inform arguments in other cases, such as the Cowichan case in British Columbia,” with Canada planning to make “all legally viable arguments to protect private property.”
The City of Richmond is appealing too. Mayor Malcolm Brodie told The Canadian Press the Supreme Court’s move may be “a signal” of its thinking, and said Richmond hopes to see a similar outcome in B.C.
Cowichan’s lawyers also welcomed the Supreme Court’s decision not to hear the Wolastoqey appeal, arguing the court should address such a sweeping legal issue using a case like theirs that has a full trial record. Cowichan lawyer David Robbins said the Supreme Court “has left the question open for a future case.”
The next real action now shifts to the B.C. appeal process, where judges will wrestle with two competing legal approaches: New Brunswick’s warning about private property and reconciliation, and B.C.’s finding that fee simple and Aboriginal title can, at least in some circumstances, overlap.
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