Aboriginal title gives way to private interests in New Brunswick

1. Introduction

Within months, two recent court decisions have reached conclusions which differ in respect of how Aboriginal title may or may not interact with lands held privately in fee simple.

As detailed in our earlier article, Aboriginal title in Metro Vancouver: "A lot of unfinished business in this province", in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490 (“Cowichan Tribes”), following a very lengthy trial, the B.C. Supreme Court determined that Aboriginal title and fee simple interests can co-exist, and proceeded to issue a declaration of Aboriginal title over an area that included private lands of the defendants and other non-parties.^[1] Importantly, with respect to the private landowners, the claimants in Cowichan Tribes only sought to directly invalidate the fee simple interests of specific government entities (the City of Richmond and Vancouver Fraser Port Authority), who were named defendants.^[2]

In J.D. Irving, Limited et al. v. Wolastoqey Nation, 2025 NBCA 129 (“Wolastoqey”), the New Brunswick Court of Appeal allowed an appeal from a motion to strike in an action brought by the Wolastoqey Nation against the Crown and industrial private landowners seeking, among other relief, the return of the industrial private landowners’ privately held fee simple lands.^[3] A motions judge had struck parts of the claim but permitted the Wolastoqey Nation to pursue a declaration of Aboriginal title against the Crown over privately owned land.

The Court of Appeal reversed that decision, holding that Aboriginal and fee simple titles cannot co-exist on the same land because they are “irreconcilable” and that declaring Aboriginal title over privately owned land “would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”^[4] It therefore struck the Wolastoqey Nation’s claim for a declaration of Aboriginal title over the privately held lands. The Wolastoqey Nation was however permitted to pursue: (i) a declaration of Aboriginal title against the Crown over ungranted Crown land; and (ii) a finding of Aboriginal title over the privately owned land.

There are at least two key distinctions between these two recent decisions:

1. Cowichan Tribes states that a court can declare Aboriginal title over land held by private landowners who are non-parties, providing an Indigenous claimant with formally enforceable rights. In contrast, Wolastoqey states that a court cannot make such a declaration; instead, a court may make a less-formal “finding” of Aboriginal title in relation to privately held lands, which is enforceable only to the extent of grounding a claim for damages or compensation against the Crown.
2. Cowichan Tribes states that Aboriginal title and fee simple title can co-exist in respect of the same lands and are reconcilable, because neither is absolute (although, in any exercise of such rights, one must ultimately “yield” to the other).^[5] In contrast, Wolastoqey states that Aboriginal and fee simple titles cannot co-exist and are irreconcilable, because they both provide that the title holder has exclusive possession, occupation and use.^[6]

Cowichan Tribes has been appealed to the British Columbia Court of Appeal. The Wolastoqey Nation has stated that it intends to seek leave to appeal Wolastoqey to the Supreme Court of Canada.

2. Background to Wolastoqey

The Wolastoqey Nation commenced litigation seeking, among other things, a declaration of Aboriginal title over the western half of New Brunswick.^[7] The Wolastoqey claim included Crown lands and private lands owned in fee simple by several corporate defendants (“private landowners”). Several private landowners were formally named as defendants in the case.

The private landowners brought a successful motion to strike the claims against them and, importantly, were removed as defendants in the action. In the result, the Wolastoqey Nation was not permitted to advance a claim for formal declaratory relief directly as against the private landowners, given that they had become non-parties to the action.

However, the motion judge allowed the Wolastoqey Nation’s claim against the Crown for a declaration of Aboriginal title over the private landowners’ lands to proceed, thus mirroring the claim in Cowichan Tribes in some respects. The private landowners appealed this latter part of the decision.

3. Key takeaways from Wolastoqey

The Court of Appeal in Wolastoqey reached three key conclusions:

1. If a private landowner’s rights will be directly affected by a declaration of Aboriginal title, such a declaration cannot be made without the impacted landowner having notice of and the opportunity to participate in the litigation;
2. A court can make a “finding” of Aboriginal title (as distinct from issuing a formal order and declaration) in relation to private land held by non-parties to the litigation, which in turn can be relied on to support an Indigenous claimant’s claim for compensation as against the Crown; and
3. Aboriginal title cannot co-exist with fee simple title in the same parcel of land.

3.1 Procedural fairness prevents a declaration of Aboriginal title over non-party private landowners

In both Cowichan Tribes and Wolastoqey, the Aboriginal title claim area included private lands held by parties (i.e. defendants in the litigation) and non-parties. In both cases, private landowners were named as defendants where specific relief (e.g. invalidation of fee simple or recovery of land) was being sought. Wolastoqey stands in stark contrast in that the private landowners were removed as defendants; much of the New Brunswick Court of Appeal’s analysis appears to have turned on this procedural circumstance.

In Wolastoqey, the Court of Appeal stated that making a declaration of Aboriginal title is discretionary based on four “conditions precedent”: (1) a finding of Aboriginal title; (2) satisfaction of the criteria for issuing a declaration as set out in Ewert (jurisdiction to hear the issue, the dispute is real and not theoretical, the party raising the issue has a genuine interest, and the respondent has an interest in opposing the declaration);^[8] (3) the absence of a valid defence; and (4) no resulting injustice.^[9]

The Court of Appeal found that the court below could not make a declaration of Aboriginal title because it had lost jurisdiction over the matter, causing the criteria from Ewert to be unmet, when affected private landowners were removed as parties and denied an opportunity to be heard:

In my view, once judgement was granted confirming there was no basis in law for the claim for a declaration of Aboriginal title against the appellants, and removing them as parties to the action, the Court of King’s Bench relinquished jurisdiction to make any such declaration against the Crown over the appellants’ lands.

[…]

As a result of the determination the appellants were not proper parties to the action for a declaration of Aboriginal title against their lands and the judgment removing them as parties, thereby depriving them of their right to be heard in connection with that action, the trial court lacks jurisdiction to grant any such declaration against the Crown.^[10]

Although not expressly central to the Court’s reasoning, it bears repeating that the Wolastoqey Nation had sought relief as against the industrial private landowners for the return of land held in fee simple, which was ultimately amended as a claim as against the Crown for such relief once the affected private landowners were removed as defendants. In contrast, in Cowichan Tribes, where the Cowichan sought to invalidate fee simple interests, the landowners were parties to the litigation. In this respect, Wolastoqey may be distinguishable from Cowichan Tribes.

What remains unclear from the Court of Appeal’s reasoning in Wolastoqey is whether a landowner must be provided an opportunity to participate in litigation only when its fee simple rights are being directly challenged, or whether those procedural rights must be provided to all private landowners in all cases where a formal declaration of Aboriginal title is sought over private lands (as distinct from only seeking a “finding”).

If Wolastoqey stands for the proposition that a declaration of Aboriginal title over private lands cannot be made without the participation of all private landowners in the hearing, then it appears to part ways with Cowichan Tribes at least in that respect. In Cowichan Tribes, a pre-trial ruling was issued to the effect that affected landowners need not even receive notice of the litigation, since the Cowichan were not seeking to invalidate fee simple interests held by those private landowners, and that “[p]rivate landowners will have an opportunity to make all arguments, including that they were not given formal notice, in any subsequent proceedings against them if any such proceedings are brought.”^[11]

3.2 A finding versus a declaration of Aboriginal title

As noted above, the Court of Appeal held that the Wolastoqey Nation could continue to seek what it referred to as a “finding” of Aboriginal title over the private landowners’ lands. This appears to mean that a court could be asked to make a factual finding that such Aboriginal title exists, without issuing a formal, enforceable declaration to that effect. Such a “finding” would not confer ownership rights to the Wolastoqey Nation in the privately held land, but in the words of the Court of Appeal it would “open the door to consideration of an award of damages and compensation against the Crown.”^[12]

Though the Court of Appeal refused to permit the Wolastoqey Nation to continue to seek to establish Aboriginal title in a manner that would arguably legally burden fee simple lands, as occurred in Cowichan Tribes, it left open the possibility that a trial judge could make a finding of fact that the Wolastoqey Nation has Aboriginal title over privately held lands in order to assess compensation owed by the Crown. In other words, the Court fundamentally altered the scope of possible relief available respecting private lands to compensation and damages as against the Crown, indirectly supported by a court “finding” of Aboriginal title.

A finding of Aboriginal title (short of a formal declaration) is not, in and of itself, a novel concept. Such a finding can be indirectly necessary to support other legal claims. In an earlier B.C. case for example, a First Nation sought a finding of Aboriginal title to the extent necessary to ground a claim of nuisance.^[13] However, such cases differ from the Wolastoqey Nation’s claim, in which Aboriginal title over private lands was directly sought as relief.

3.3 Aboriginal title and fee simple

From a substantive perspective, Wolastoqey and Cowichan Tribes decisions come to different and important conclusions as to whether Aboriginal title can co-exist with fee simple title on the same lands.

Although the Court of Appeal in Wolastoqey could have disposed of the appeal on the basis that the lower court lacked jurisdiction to issue a declaration of Aboriginal title, its reasons went further, opining that “no court would exercise its discretion in favour of a declaration of Aboriginal title over the appellants’ lands” in part because, in its view, Aboriginal title is “irreconcilable” with the fee simple rights and entitlements of private landowners.^[14]

On this point, the difference between Wolastoqey and Cowichan Tribes may best be reflected in their respective treatment of the status quo treatment of fee simple interests, and the differing conclusions each reached regarding what range of remedies should be available to Indigenous claimants in order to facilitate reconciliation.

In Wolastoqey, the Court emphasized that ownership rights conferred by a declaration of Aboriginal title cannot “co-exist with the very same rights vested in fee simple owners.”^[15] Implicit in the Court’s reasoning is that changing the status quo by infringing on a fee simple title interest would hinder reconciliation, particularly as, in the Court’s view, compensation is an adequate remedy:

[…] In my view, a declaration of Aboriginal title over privately owned lands, which, by its very nature, gives the Aboriginal beneficiary exclusive possession, occupation, and use would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.

[…] In my view, remedial justice favours compensation from the Crown over dispossession of private fee simple owners in all cases although, admittedly, that is especially the case “when the land has passed through numerous innocent hands.”^[16]

In contrast, in Cowichan Tribes, the Court held that “the trend in the jurisprudence suggests that [Aboriginal title and fee simple] can coexist, and that where Aboriginal rights and third party rights coexist, the governing approach is reconciliation of those rights through engagement between the Aboriginal rights-holder and the Crown. Further, courts will adopt a case-by-case approach in considering the impact of fee simple interests on constitutionally protected Aboriginal interests in land.”^[17]

It is possible that this line of reasoning, with respect to the co-existence of rights, flows in part from the Cowichan Tribes Court’s approach to reconciliation, which favours leaving open the possibility of a change to the status quo:

Reconciliation does not mean that Indigenous peoples must always sacrifice their right to their established interest in land. Fee simple interests in this land are not superior to Aboriginal title. As Justice Vella said in Chippewas of Saugeen ONSC:

[693] To achieve reconciliation means that the status quo must sometimes change. In the process of that change some will bear the brunt. Sometimes the hardship will be borne by Indigenous peoples and First Nations, and sometimes it will be borne by non-Indigenous Canadians. Change can be painful, much less, to echo the words of the Court of Appeal in Chippewas of Sarnia, “uncomfortable.” However, in this case, change in the status quo is required to achieve justice and is the right step towards reconciliation.

I find that change to the status quo in the Cowichan Title Lands must occur in this case to achieve justice.^[18]

4. Conclusion

These two decisions highlight differing approaches and the unsettled nature of the law governing the relationship between Aboriginal title and privately held lands. The leading decision in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 does not provide authoritative guidance on this issue, because the Tsilhqot’in Nation did not include any private lands in the declaration sought in that case.^[19]

As this area of law continues to develop, the Courts therefore may increasingly be asked to clarify, in the context of private lands, any interactions that exist between the procedural rights of private landowners and the scope of potential substantive relief available to Indigenous claimants, all vis-à-vis the constitutional objective of reconciliation.

For questions about these decisions and their implications for project development, private lands, or Indigenous rights, please contact our Indigenous Law team.