One of the most closely watched Indigenous land claims in Canada took a significant turn last month when the Supreme Court of Canada declined to hear an appeal brought by six Wolastoqey First Nations seeking a declaration of Aboriginal title over approximately half of New Brunswick.
The Indigenous claim area covered roughly 30,000 parcels of Crown land and 252,000 parcels of privately owned lands — roughly half of the province.
The First Nations argued that their Aboriginal title had never been extinguished because the Peace and Friendship Treaties signed in the 1700s did not involve a surrender of land to the Crown.
Last December, in a significant setback to the First Nations, the New Brunswick Court of Appeal ruled that Aboriginal title could not be declared over privately owned lands.
The court found that Aboriginal title and “fee simple” — the highest form of private ownership — are fundamentally inconsistent. Aboriginal title includes rights of exclusive occupation, possession and control.
Those rights conflict with the statutory rights enjoyed today by fee simple owners. According to the court, the two interests cannot coexist over the same parcel of land.
The New Brunswick court decided that if Aboriginal title is ultimately established over lands that have since become privately owned, compensation from the Crown is generally the appropriate remedy. Responsibility for any historic infringement lies with government rather than the current owners.
Justice Ernest Drapeau, on behalf of a three-judge panel, wrote that a declaration of Aboriginal title over privately owned lands would be incompatible with the legal rights held by private landowners, and would effectively undermine those interests.
He added that granting Aboriginal title over private lands “would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”
The Supreme Court of Canada refused leave to appeal the Wolastoqey ruling without reasons — as is customary. As a result, the New Brunswick decision presently stands as strong authority that privately owned fee simple lands are not subject to declarations of Aboriginal title.
For property owners, lawyers, real estate agents, lenders, developers and title insurers, the case provides significant reassurance regarding the stability of Canada’s land titles system.
The New Brunswick ruling, which has now been effectively endorsed by the Supreme Court, stands in sharp contrast to the decision of a British Columbia court last August which ruled that the Cowichan Tribes hold Aboriginal title to as many as 1,846 acres of prime land in downtown Richmond, B.C., owned by the federal government, the City of Richmond, the Vancouver Fraser Port Authority and numerous private landowners.
The B.C. case upset the traditional certainty of property rights of fee simple ownership system in that province and elsewhere across the country.
The fear that Aboriginal title could override private land ownership came as a surprise to land owners and governments across the country. Within days of the release of the B.C. court ruling, all parties to the Cowichan litigation filed appeals, and the case appeared headed to the Supreme Court on Ottawa.
But now, with the decision of the New Brunswick Court of Appeal being effectively approved by the country’s highest court, much of the Cowichan ruling has been rendered moot.
In the wake of the Wolastoqey case, private owners get to keep their land in New Brunswick — and presumably in British Columbia and the rest of Canada — while the First Nations are free to pursue their claims for compensation against the Crown for historical infringements of their rights.
Property land owners in the rest of Canada should now be able to rely on the Supreme Court’s refusal to hear the appeal of the Wolastoqey ruling. Sometimes the most important Supreme Court decisions are the ones the court never hears. This was one of them.
