Aboriginal Title Can Exist Over Private Land, But Indigenous Nations May Face Additional Delays
Comment on Wolastoqey Nations v New Brunswick and Canada, et. al., 2024 NBKB 203
The Court of King’s Bench in New Brunswick recently decided that it can declare Aboriginal title over private lands. This decision also raises concerns about an extra barrier for Indigenous Nations trying to enforce their rights in Canadian courts.
Background: The Wolastoqey Aboriginal Title Claim
Six Wolastoqey Nations claimed Aboriginal title to their traditional land, which covers more than half of New Brunswick, including many private lands owned by individuals and companies. Besides New Brunswick and Canada, other defendants included New Brunswick Power and seven industrial companies. The Wolastoqey Nations want the land held by these companies returned to them.
New Brunswick and some industrial companies wanted the court to remove parts of the Wolastoqey Nations’ claim. They argued that the court cannot declare Aboriginal title over private lands.
The Judge’s Decision: The First Time a Canadian Court States That Aboriginal Title Can Exist Over Privately Held Lands, but Indigenous Nations Cannot Sue Private Parties Holding That Land
Justice Gregory said the court can declare Aboriginal title over private lands. This is the first time a Canadian court has said this is possible.
Justice Gregory removed the industrial companies from the case. She said that Aboriginal title is a relationship between the Crown (Canada and New Brunswick) and the Indigenous Nation, so an Indigenous Nation cannot sue a private person or company based on Aboriginal title. However, the court can order the Crown to remove private landowners and return the land to the Wolastoqey Nations. The private landowners can ask for compensation from the Crown if this happens.
Regarding the “negotiation and reconciliation phases” in Aboriginal title cases, Justice Gregory stated that these phases happen after the Indigenous Nation proves Aboriginal title in court. During these phases, the Crown considers the interests of private landowners as part of the reconciliation process.
What This Means for Indigenous Nations
Justice Gregory’s decision is important for Indigenous Nations because it confirms that Canadian courts can recognize Aboriginal title over private lands. This means Indigenous Nations don’t have to involve private parties in their cases when they claim Aboriginal title over private lands. In the Wolastoqey Nations’ case, the industrial companies had many lawyers, making the case more expensive and time-consuming. Removing private parties makes the process cheaper and simpler.
There is some uncertainty about what the “negotiation and reconciliation phases” will look like. Justice Gregory said these phases are based on recent Supreme Court of Canada decisions, which promote reconciliation by making declarations. It is unclear why these phases would happen before the court makes a declaration. The concern is that courts might delay declaring Aboriginal title and providing relief to Indigenous Nations, requiring a negotiation period between the Crown and the Nation. This could be another obstacle for Indigenous Nations, who already face long and expensive legal battles. Indigenous Nations turn to the courts because federal and provincial governments fail to recognize their rights. If courts delay making declarations, it gives the Crown more opportunities to delay enforcing those rights. Hopefully, future court decisions will clarify these phases without creating more barriers for Indigenous Nations.