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The Supreme Court of Canada in Ottawa.Sean Kilpatrick/The Canadian Press
The Supreme Court of Canada will not hear an appeal of an Aboriginal title case in New Brunswick, leaving questions of private-property rights raised in land-claims litigation on both sides of the country unresolved for now.
Last December, New Brunswick’s Court of Appeal ruled that the Wolastoqey Nation cannot seek a declaration of Aboriginal title over private property, saying the harm to private-property rights would undermine efforts in Canada to achieve reconciliation with First Nations.
New Brunswick appeal court rules Indigenous group can’t seek Aboriginal title over private land
The ruling was delivered as a result of a pretrial procedural hearing aimed at clarifying whether the Wolastoqey can include private lands as part of their Aboriginal title case. The full case has yet to be heard.
The finding excluding private property from their claim is at odds with the Cowichan decision in British Columbia, where the provincial Supreme Court has made a declaration of Aboriginal title over private lands in Richmond.
In its request for an appeal, the Wolastoqey Nation, which represents six related Indigenous communities in New Brunswick, asked the Supreme Court of Canada to answer one broad question: Can Aboriginal title exist over privately held lands?
By refusing to hear the case, the SCC has left that question for another day. Both the New Brunswick and B.C. cases are ultimately destined for the country’s top court, but the Wolastoqey will have to go to trial at a lower court first.
“The fight for our homeland will continue,” Chief Patricia Bernard of Madawaska, one of the six Wolastoqey communities, said in a statement Thursday.
“Canadians expect that the Supreme Court will eventually need to clarify the law on whether Aboriginal title can be recognized in relation to privately held lands.”
Opinion: Clarity in the law of Aboriginal title is not optional
The Cowichan Nation is the only Aboriginal community in Canada that has secured a declaration of Aboriginal title to lands that overlap with existing privately held fee simple titles.
B.C. Supreme Court Justice Barbara Young, after more than 500 days at trial, found that fee simple title and Aboriginal title can co-exist, “and where they do, the exercise of one form of title must yield to the other so long as they are both present on the same parcel of land.”
She ordered the B.C. government to negotiate with the Cowichan to reconcile those competing interests.
The Wolastoqey seek Aboriginal title to lands, airspace, foreshore, lakes and rivers covering the western half of New Brunswick including privately owned industrial lands. The case to date has revolved around pretrial motions and procedural steps ahead of a full trial.
In the procedural hearing, the Court of Appeal overturned a lower court ruling that would have allowed private industrial lands to be included in the claim.
“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,” New Brunswick Court of Appeal Justice Ernest Drapeau wrote in the judgment in December.
The Wolastoqey can still proceed with their remaining claim over Crown lands, and they can seek compensation from the province for the losses of those lands that are now privately owned.
Boundaries of the land included in Cowichan title ruling are ambiguous, lawyers warn
Thursday’s decision by the SCC leaves the New Brunswick Court of Appeal judgment in place, allowing Canada and other parties to appeal the Cowichan decision based on the existing Wolastoqey ruling.
“This important New Brunswick Court of Appeal decision will inform arguments in other cases, such as the Cowichan case in British Columbia,” said Alec Wilson, a spokesperson for Rebecca Alty, federal Minister of Crown-Indigenous Relations.
“As the appeals process for the Cowichan case proceeds, Canada will make all legally viable arguments to protect private property.”
David Robbins, a lawyer for the Cowichan, called the decision of the SCC to refuse the Wolastoqey case “good news.”
The Cowichan had applied for intervenor status, and asked the SCC to leave the larger question of Aboriginal title to a case such as theirs that has already been through trial.
“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 argued in their application to the SCC.
