Supreme Court upholds private property ruling in New Brunswick

Key Takeaways:

• The Supreme Court of Canada refused to hear an appeal of a New Brunswick ruling, which establishes that Aboriginal land title cannot legally coexist with private property ownership.
• The ruling allows First Nations to still seek judicial findings of Aboriginal title to pursue financial damages and compensation from the Crown, rather than seizing private land.
• Government officials and legal experts believe this decision sets a major precedent that will heavily influence similar ongoing land claims across Canada, such as the Cowichan Nation case in British Columbia.

The Whole Story:

The Supreme Court of Canada has refused to hear an appeal of a major Aboriginal land title ruling out of New Brunswick, upholding private landownership arguments that swayed a lower court. 

Experts say the case, which saw First Nation’s communities attempt to assert Aboriginal Title over the western half of New Brunswick, could set a precedent for similar cases across the nation that private property rights are fundamental.

The final word in New Brunswick

The Wolastoqey Nation was seeking declaration of Aboriginal title to the western half of New Brunswick. The area included Crown lands, fee simple lands owned by , and fee simple lands owned by other private landowners. The Wolastoqey Nation’s claim included the provincial and federal governments, as well as industrial companies. 

The New Brunswick Court of Appeal ruled that a formal judicial declaration of Aboriginal title—which grants exclusive possession, occupancy, and land-use rights—cannot legally coexist with private land ownership, effectively removing hundreds of thousands of hectares of private industrial forest lands from the Wolastoqey Nation’s land claim. 

The court held that declaring Aboriginal title over privately held land would violate natural justice for third-party owners who had no role in the historical unceded land transfers.

Here’s how the judge in that case put it: “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.”

However, the ruling established that the First Nation can still seek a judicial finding of Aboriginal title, which allows them to still pursue financial damages and compensation directly from the Crown for its historical wrongs. This decision became the final word on the matter after the Supreme Court of Canada dismissed the Wolastoqey Nation’s application for leave to appeal.

Impact in Western Canada

B.C. is in the midst of its own land rights controversy.

After setting the record for the longest trial in Canadian history with more than 500 days of hearings, the B.C. Supreme Court ruled last August that the Cowichan Nation had established Aboriginal title to several square kilometres in Richmond, which included public and private land. The courts found that government officials of 1850s illegally sold lands intended as an Indigenous reserve.

Some, like Thomas Isaac, Partner at Cassels & Blackwell LLP, say the implications of the case are massive. 

“To be absolutely clear and to use the judges own words: ‘A precedent will flow from this case.” said Isaac, noting that the court could have restricted the ruling to the 800 acres in Richmond but deliberately stated it’s decision would have broader implications. 

“Anyone suggesting that this is simply restricted to the City of Richmond and those 800 acres, that wasn’t the expressed intent of what the court wrote.”

B.C. Premier David Eby has told residents that province will aggressively pursue the Cowichan appeal to protect the integrity of the fee-simple land title system. And with the New Brunswick ruling upheld, officials believe the tide may be turning in their favour. 

The Crown-Indigenous Relations Department explicitly stated that the decision will be used in arguments in other cases, including the Cowichan one.

When asked by reporters about the New Brunswick ruling, B.C.’s Attorney General, Niki Sharma said it reinforces the province’s position. 

“It’s an interesting state right now where the Supreme Court has decided to not take a look at that law, so not to overturn that decision in New Brunswick when it’s the same legal issues that we’re dealing with here,” she said. “I think that bodes well for our arguments and the appeals that we are seeking in B.C.”

Private landowners in Richmond have also protested the decision, including Montrose Property Holdings, the largest private property owner in the claim area. This month, they went before the judge that decided the case, asking her to reconsider the ruling. They argued that private land owners never had the opportunity to defend their interests.