Aboriginal Title and Private Property

What the Court Decided

In 2021, the Wolastoqey Nation filed a claim seeking a declaration of Aboriginal title over more than 50% of the lands in the province of New Brunswick.[1]

The statement of claim divides the Wolastoqey Nation’s claim area into three categories with corresponding remedies sought:

1. Crown land:
   1. a declaration of Aboriginal title against the Crown.
2. Fee simple land owned by corporations (the “Industrial Defendants”):
   1. a declaration of Aboriginal title against the Industrial Defendants;
   2. a declaration of Aboriginal title against the Crown; and
   3. an order quashing the underlying Crown grants so that Wolastoqey can recover the land from the Industrial Defendants.
3. Fee simple land owned by private individuals:
   1. a factual finding of Aboriginal title over this land, not a declaration, for the purposes of seeking damages from the Crown.

The Industrial Defendants applied to strike out the remedies listed under #2. The motions judge granted their application with respect to #2(a), the declaration sought against the Industrial Defendants. The judge’s rationale was that the test for seeking declaratory relief against the Industrial Defendants was not met because the pleadings did not demonstrate a legal relationship between the Industrial Defendants and the Wolastoqey Nation.[2] Declarations of Aboriginal title can only be obtained against the Crown.[3]

The motions judge refused to strike the cause of action for a declaration of title against the Crown or the remedial order to quash the fee simple grants held by the Industrial Defendants. The effect was that the Wolastoqey Nation was permitted to pursue a declaration of title against the Crown and an order quashing the fee simple title rights of the Industrial Defendants, without the latter’s participation in the claim.

The Industrial Defendants appealed this part of the decision and were successful on appeal. The New Brunswick Court of Appeal (the “NBCA”) held there can be no declaration of Aboriginal title or invalidation of fee simple interests without the participation of the relevant landowners.[4]

The NBCA gave three reasons for its decision:

1. The principles of natural justice and procedural fairness preclude a declaration of fee simple lands without participation of the fee simple landowners;
2. A declaration of Aboriginal title would provide Wolastoqey Nation rights that are irreconcilable with the legal rights of the fee simple landowners (i.e. exclusive possession, occupancy, and use); and
3. The statement of claim did not allege any actionable wrongs by the fee simple land owners to the lands at issue.[5]

Nonetheless, the NBCA held the Wolastoqey Nation may seek a factual finding of Aboriginal title against the Crown over the lands owned by the Industrial Defendants, for the purpose of seeking damages and compensation from the Crown.

The NBCA decision concludes with the following words:

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’.[6]

The Wolastoqey Nation sought leave to appeal to the Supreme Court of Canada (“SCC”). The SCC dismissed the application for leave on May 28, 2026.

Importance of the Decision

The decision of the British Columbia Supreme Court (the “BCSC”) in Cowichan Tribes came to a very different conclusion than the NBCA in Wolastoqey:

1. Whereas the NBCA held that fee simple and Aboriginal title interests are irreconcilable, the BCSC found the law did not support such a conclusion and that the governing approach dictated by the jurisprudence is reconciliation on a case-by-case basis.[7]
2. Whereas the NBCA opined that “no court” would ever issue a declaration of Aboriginal title over fee simple lands, the BCSC did exactly that and more, issuing a declaration that the fee simple title interests held by Canada and Richmond are defective and invalid and that Canada and BC owe a duty to Cowichan Tribes to negotiate in good faith reconciliation of the remaining fee simple interests held by third parties and the Crown.[8]

In our view, the stark contrast in result is reflective of the distinct factual underpinnings and scope of each claim.

The Wolastoqey Nation advanced a very bold position in its statement of claim, seeking a declaration of Aboriginal title over nearly half the Province of New Brunswick and seeking an order to quash fee simple title interests with the stated purpose of ejecting landowners from their lands.[9] While they limited their claim to corporate landowners and excluded ordinary homeowners, the precedential impact of a successful claim against the former would undoubtedly impact to the latter.[10]

By contrast, the Cowichan Tribes litigation was extremely limited in scope. The claim area was a single village site of less than 8 km² as compared to well over 35,000 km² claimed by the Wolastoqey Nation. Further, the fee simple land grants the Cowichan Tribes sought to invalidate are owned by government entities (the federal Crown, a Crown agent, and a municipality), none of whom were bona fide purchasers for value.[11]

Several other key findings of the BCSC distinguish Cowichan Tribes from Wolastoqey:

• In the 19^th century, the Crown made (and then broke) a solemn promise to the Cowichan Tribes to set apart their village site as a reserve.
• Instead of setting the land aside, a Crown official responsible for reserve creation purchased portions of the village site for his own personal gain, while attempting to conceal the purchase through a land agent. This was fraudulent conduct.
• The remaining grants of fee simple were issued by the Province following its entry into Canada under the BC Terms of Union. Article 13 of the BC Terms of Union constrained British Columbia’s power to dispose of the village site. The fee simple grants were therefore without statutory or constitutional authority.[12]

In our view, these distinctions explain the sharp contrast in outcomes.

What Lies Ahead

Although Wolastoqey is a precedent-setting appellate court decision, the degree to which it will be applied in British Columbia remains to be seen.

The denial of leave to appeal by the SCC is not a decision on the merits of the claim or the appellate court’s reasoning and does not mean the legal precedent in Wolastoqey is binding across Canada. The doctrine of stare decisis provides that a decision of a higher court is binding only on a lower court in the same jurisdiction.[13]

Nonetheless, a decision from another provincial court of coordinate jurisdiction is considered persuasive authority.[14]  The British Columbia Court of Appeal (the “BCCA”) will have to grapple with the NBCA’s reasoning in Wolastoqey when it hears the Cowichan Tribes appeal.

We anticipate the BCCA will place emphasis on several key distinctions in the Cowichan Tribes litigation that were not at play in Wolastoqey:

• The solemn Crown promise followed by fraudulent conduct of a Crown agent with respect to the Cowichan Tribes’ village site.
• The constitutional and statutory provisions protecting settlements such as the village site from disposition by the provincial Crown.
• The order to quash fee simple titles being restricted to governmental landowners, none of whom constituted bona fide purchasers for value and all of whom participated in the litigation.