Aboriginal title can be declared over privately-owned land

Friday, November 15, 2024

The six Wolastoqey Nations in New Brunswick recently received a precedent-setting decision in their Aboriginal title claim. In Wolastoqey Nations v New Brunswick and Canada, et. al., 2024 NBKB 203, the motion judge confirmed the possibility that Aboriginal title can be declared over private lands, clarified how such a claim should proceed, and outlined the implications of such an Aboriginal title declaration. This decision represents a significant development of the law of Aboriginal title, with implications across the country. OKT has had the honour of representing the Wolastoqey Nation in this important litigation. 

BACKGROUND

i. What is the Wolastoqey title claim? 

In 2021, the six Wolastoqey Nations in New Brunswick (Matawaskiye (Madawaska), Wotstak (Woodstock), Neqotkuk (Tobique), Bilijk (Kingsclear), Sitansisk (St. Mary’s) and Welamuktok (Oromocto)) filed a claim for Aboriginal title to their traditional territory in New Brunswick. The claim seeks a declaration of Aboriginal title over more than 50% of the land in the province (283,204 separate parcels of land, with some 252,758 parcels held in fee simple).  

In addition to seeking a declaration on Aboriginal title, the Statement of Claim identified certain parcels of land, held by both the Crown and certain named private parties (known in the claim as the “Industrial Defendants”) that the Wolastoqey wanted returned following a declaration of Aboriginal title. The Wolastoqey also sought an Aboriginal title declaration to land held in fee simple that the Wolastoqey did not want returned. 

ii. What were the motions about?  

The Province of New Brunswick brought a motion arguing, among other things, that it is not possible to have Aboriginal title and fee simple co-existing over the same parcels of land. 

The Industrial Defendants brought motions arguing, among other things, that the Wolastoqey had no reasonable prospect of success claiming privately-held land back in an Aboriginal title claim. 

KEY RULINGS 

i. Aboriginal title can be declared over privately owned lands. 

To date, no case has clearly answered the question of whether Aboriginal title can be declared over privately-owned, fee simple lands. In Tsilhqot’in Nation v. British Columbia, the plaintiffs sought a title declaration over fee simple lands, but ultimately dropped that part of the claim when the case reached the Supreme Court of Canada.¹ There are other cases in Canada that have, or are, claiming Aboriginal title to fee simple lands. However, the published decisions arising from those cases do not directly address the legal question of whether Aboriginal title can exist on fee simple lands. 

This legal question – “whether the law can recognize a declaration of existing Aboriginal title in the face of existing fee simple” – was raised squarely in the motions to strike.²  The Province and Industrial Defendants argued that as a matter of law, Aboriginal title could not exist on fee simple lands. The JD Irving Defendants in particular argued that in granting fee simple, the Crown gave away the beneficial interest in land that would form the basis of an Aboriginal title declaration, and thus Aboriginal title could not exist on such private lands. The Province also sought to strike (among other things) the map that depicts the Wolastoqey Nation’s Aboriginal title claim.  

The court rejected these arguments. Significantly, the court allowed the Wolastoqey Nation’s title claim map – which includes land owned in fee simple – to move forward. The court wrote: 

The AGNB takes the position that the Court does not have jurisdiction to issue declaration of Aboriginal title in relation to land already owned in fee simple… 

I do not agree.³ 

In doing so, the court accepted that, as a matter of law, an Aboriginal title declaration can be issued over fee simple lands. In other words, the Crown’s underlying title to all land in the Province (whether held in fee simple or not) may be burdened with Aboriginal title.⁴  

ii. Upon a declaration of Aboriginal title, the Crown has a significant legal duty of reconciliation.  

Given the size, complexity and constitutional nature of Aboriginal title claims, the court clarified the “natural” phases that an Aboriginal title claim will follow. The first “factual and legal phases” focus on whether Aboriginal title exists on the land claimed, and any breaches of duties in relation to Aboriginal title. The second “declaration and relief phases” focus on what remedies are owed.⁵ 

The divide between liability and remedies in legal proceedings is a well-known. Notably, however, the court also recognized a specific phase of Aboriginal title proceedings that is based on the Crown’s responsibility to engage in reconciliation. Specifically, the court found that recent decisions from the Supreme Court of Canada – Shot Both Sides v. Canada⁶ and Ontario v. Restoule⁷ – direct a “negotiation and reconciliation” phase to occur as a part of or prior to the “declaration and relief” phases.⁸ Such “reconciliatory action…is now recognized as a legal duty, not just a moral one on the part of the Crown”.⁹ 

Once Aboriginal title and any associated Crown wrongdoing is proven, “a reconciliation process is triggered invoking polycentric considerations on the part of the Crown”.¹⁰ It is during this negotiation and reconciliation phase that the Crown – as a constitutional partner – must attempt to reconcile the existence of Aboriginal title and fee simple interests, among other considerations.¹¹ The court will, however, have jurisdiction to review this process.¹²   

iii. Private land owners cannot be directly sued for the return of land based on Aboriginal title. 

The court held that Aboriginal title, if declared, is declared as against the Crown only: 

[An Aboriginal title declaration] establishes the legal relationship, interests, and state of affairs as between the Crown and the Aboriginal group, not as between an Aboriginal group and private parties. I acknowledge such a declaration impacts everyone, Crown and non-Crown, but the legal declaration itself is against the Crown only. It is not declared against private parties as they hold no 
constitutional status as against the Aboriginal group.¹³  

The court noted that private parties, “who have no constitutional authority or obligation”, do not have a direct legal relationship with the Wolastoqey Nation.¹⁴ As such, the Industrial Defendants are not the proper parties to oppose the action, and a declaration of Aboriginal title cannot be sought against them.  

In this analysis, the court repeatedly noted concerns about the complexity and nature of Aboriginal title claims. Such claims involve unique sui generis rights, and are of “constitutional proportion”.¹⁵ They are “judicially recognized as being complex, lengthy and extremely expensive proceeding”.¹⁶ Indeed, the Industrial Defendants’ “routine” motions took four days of hearing and required post-hearing briefs.¹⁷ 

Given these concerns, the court struck the Industrial Defendants from the Aboriginal title claim. This conclusion appears consistent with courts’ recent reluctance to allocate legal liability and risk to private parties for matters involving Aboriginal rights and title.¹⁸ 

Notably, despite all the parties reliance on the Chippewas of Sarnia Band v. Canada,¹⁹ the court declined to put much weight on this case. The court noted the 24-year old case was “heavily criticized” and predates many important Supreme Court of Canada decisions on Aboriginal rights and title. The court found that Chippewas of Sarnia “mistakenly allows for the pitting of private fee simple title holders directly against Aboriginal title holders and contorts legal principles in doing so”.²⁰  

The court found this was not an appropriate approach. Instead, she placed a large and important burden on the Crown to do the heavy lifting of reconciliation, including the reconciliation of Aboriginal title and fee simple: 

Indeed, it is the nature of the sui generis relationship between Aboriginal groups and the Crown, that the latter stands as a buffer, where appropriate, and a conduit, where necessary, between Aboriginal and settler societies.²¹ 

iv. The Crown may be required to use its expropriation powers to return privately-owned lands to Indigenous Nations.  

Though the court struck the Industrial Defendants from the claim, the court was clear the Wolastoqey Nation may still be able to repossess land owned by the Industrial Defendants: 

To strike the pleadings that draw private parties into a constitutional claim arising between the Crown and the Aboriginal group does not mean that the Aboriginal group will be denied the possible remedy of repossessing land owned by the [Industrial Defendants]. 

… 

Should the Court determine that such a remedy is warranted flowing from a declaratory judgment (and should reconciliation fail), the Crown may be directed or ordered to use its expropriation powers and may be subject to a claim by the fee simple holders for compensation arising therefrom.²² 

Any fee simple owners whose land has been expropriated may then have a claim against the Crown for compensation.  

This judicial acknowledgement that privately-owned lands may need to be returned to Indigenous Nations is a significant victory. It confirms that reconciliation may require remedies in the form of land back, rather than simply monetary compensation.  

CONCLUSION

The defendants accused the Wolastoqey Nation of trying to abuse the court’s process, due to the Aboriginal title claim’s size, complexity, and involvement of private parties and fee simple lands. The court’s explicitly rejected any “nefarious motives” and instead acknowledged Aboriginal title is simply “an evolving area of law fraught with difficult and complex legal questions”.²³ 

The court’s decision is a welcome development in the law of Aboriginal title, and an important step forward for the Wolastoqey Nation’s title claim. It clarifies that an Aboriginal title declaration can be issued over fee simple lands. It acknowledges that reconciliation may require the return of such privates lands to the Indigenous Nation. And it holds the Crown accountable as the Wolastoqey Nation’s constitutional partner. In so doing, the court has heeded the Supreme Court of Canada’s direction on Aboriginal title claims, where “[w]hat is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society”. ²⁴ 

Renée Pelletier, Jaclyn McNamara, Graeme Cook and Victoria Wicks represented the Wolastoqey Nation on these motions.   

CLICK HERE TO READ THE DECISION

[1] 2014 SCC 44, at para. 9. 

[2] Motion decision, at paras. 106; see also paras. 23-24. 

[3] Motion decision, at paras 182-83. See also paras 171 and 187. 

[4] Motion decision, at para 132. 

[5] Motion decision, at para 30. 

[6] 2024 SCC 12. 

[7] 2024 SCC 27. 

[8] Motion decision, at paras 32, 172.

[9] Motion decision, at para 178. 

[10] Motion decision, at para 172. 

[11] Motion decision, at para 170.

[12] Motion decision, at para 180.

[13] Motion decision, at para 138. See also para 123. 

[14] Motion decision, at para 125.

[15] Motion decision, at paras 124, 126 and 156. 

[16] Motion decision, at para 130. 

[17] Motion decision, at para 128. 

[18] Good corporate governance must take into account Aboriginal rights – OKT | Olthuis Kleer Townshend LLP.

[19] 51 OR 3(d) 641 (Ont. Ca).

[20] Motion decision, at para 165.

[21] Motion decision, at para 152.

[22] Motion decision, at paras 133-134 (italics in original, underline added).

[23] Motion decision, at para. 82. 

[24] 2014 SCC 44, at para. 23.