LILLEY: Supreme Court backs private property rights against aboriginal claim – for now
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The Supreme Court of Canada has effectively shut down an attempt to overthrow property rights across the country.
The Wolastoqey First Nation in New Brunswick had asked the courts for a “declaration of aboriginal title” over Crown lands as well as privately held land across New Brunswick.
That request was shut down last December by the Court of Appeal of New Brunswick. On Thursday, the Supreme Court declined to hear the appeal of the case putting an end to the legal push.
What the impact will be on other court cases, such as the recent Cowichan Tribes decision in British Columbia, remains to be seen.
The Wolastoqey had sought to have the courts declare Aboriginal title over Crown lands in much of New Brunswick that they claim as their traditional territory but also sought a declaration of Aboriginal title over some privately held land. They specifically asked for a declaration of title over privately owned lands held by corporations such as large forestry companies like J.D. Irving Ltd., H.J. Crabbe and Sons, and Acadian Timber, as well as various railway companies in the province.
In December 2025, more than a year after hearing the case, Ernest Drapeau, the then-chief justice in New Brunswick, released a decision that said the First Nations could seek compensation from the Crown, but that they could not be granted Aboriginal title over private lands.
“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,” Justice Drapeau said.
Could lead to more unrest than reconciliation
Truly, a ruling of this kind that Aboriginal title would trump private land ownership would be a dangerous precedent and lead to more unrest than reconciliation.
The legal approach from the Wolastoqey was interesting; they didn’t seek a declaration of Aboriginal title over all private lands, such as private homeowners, but only over private lands held by major industrial companies.
Regardless, both homeowners and companies own their land under the same structure, referred to in law as fee simple title.
In the recent Cowichan Tribes decision late last year, a B.C. court declared Aboriginal title over more than 700 acres of land in Richmond, B.C. That land is currently owned and occupied by both homeowners and businesses who now have their ownership of the land put in question.
The Province of British Columbia has had to offer up loan guarantees to ensure mortgages and land transfers can continue.
Meanwhile, the Mark Carney government in Ottawa signed a competing agreement with Musqueam Indian Band saying they have actual right and title to this same land.
It’s all confusing and exhausting.
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Constitutional scholar and University of Saskatchewan law professor Dwight Newman said that Justice Barbara Young issued a confusing ruling in the Cowichan decision on how fee simple title – how most of own our homes – and Aboriginal title can co-exist.
“She says at one point that the two can co-exist, which doesn’t make sense, because each is an exclusive ownership of the land, and two people can’t both exclusively own the exact same thing,” Newman said.
The decision by the Supreme Court not to hear the Wolastoqey case out of New Brunswick doesn’t settle the Cowichan case or Kitigan Zibi Anishinābeg First Nation in Quebec, which also touches on private land. It may, however, point us in a direction that the court, for now, is willing to head in.
Keep an eye on what the Supreme Court does next, because private property ownership in Canada is still not secure.