Supreme Court kicks property crisis down the road
By Bruce Pardy for the Fraser Institute
In late May, the Supreme Court of Canada ducked. Six months earlier, the New Brunswick Court of Appeal decided that Aboriginal title could not be declared against private property. The Aboriginal claimants tried to appeal to the Supreme Court. On May 28, the Court declined to hear the case. That doesn’t mean it upheld the decision. Instead, the Court has avoided giving guidance on an issue that is causing a crisis of confidence in Canadian property.
In 2021, Wolastoqey First Nations filed a legal action seeking a declaration of Aboriginal title over the western half of New Brunswick. Seven companies, named as defendants, own much of the land subject to the claim. In 2024, the companies moved to have the claim dismissed against them. The judge obliged, releasing them from the action.
That turned out to be a bitter victory. To their dismay, the judge said that the Wolastoqey claim for their properties could continue. Striking the claim against the companies “does not mean that the Aboriginal group will be denied the possible remedy of repossessing [the defendants’] land,” she wrote. That claim would proceed against the Crown. The companies’ interests were still subject to the claim, but now they were no longer able to defend or adduce evidence at trial. If the Crown lost, the judge suggested, the court could require the government to take the land from its owners and hand it over. “The Crown may be directed or ordered to use its expropriation power.”
To clarify, the court decided that a First Nation, in this case the Wolastoqey First Nations, could claim land held by private owners, but not by suing the owners themselves. Instead, the claim should proceed only against the Crown (i.e. the government). If the claim was successful, the Crown could be required to use its expropriation powers to seize the private property and transfer it to the First Nation.
The companies appealed to the New Brunswick Court of Appeal. A unanimous panel of three judges said that Aboriginal title could not be declared over private land if the owners were not part of the action. Once the defendants were removed, the decision reads, “the Court of King’s Bench relinquished jurisdiction to make any such declaration against the Crown over the appellants’ lands… judicial discretion may be exercised only after affording all interested parties an opportunity to be heard.” The Court of Appeal did, however, say that the Wolastoqey could pursue a finding, not a declaration, of Aboriginal title over the private property. That would enable them to seek compensation from the government, rather than a transfer of the land itself.
Off to the Supreme Court went the Aboriginal claimants. But appealing to the Supreme Court requires permission. Each year, the Court typically agrees to hear less than 10 per cent of the cases that apply. In this case, it said no. As is usual, the Court gave no reasons.
Dismissing an application for leave to appeal is not the same thing as upholding the decision. The Court has said nothing about the case. The last word, for now, on this issue in New Brunswick belongs to the Court of Appeal.
But that decision does not bind courts in other provinces. The conflict between Aboriginal title and private property has been thrust front and centre in Canada, especially in British Columbia. Last August, the Cowichan decision of the B.C. Supreme Court found that Aboriginal title in Richmond, a suburb of Vancouver, is “senior and prior” to fee simple property, the standard form of private property rights in Canada.
No court has yet awarded privately owned land to an Aboriginal group. Can it be done? The Supreme Court of Canada has still not yet answered the question. The motion judge in the Wolastoqey case said that it can. The judge in the Cowichan implied that it could, but the Cowichan Tribes had not asked for the private property in Richmond to be handed over.
Trying to discern the meaning of a leave dismissal is like trying to read tea leaves. There’s not much to go on. Predictions are not reliable. Maybe the Supreme Court agreed with the Court of Appeal. Maybe it didn’t. If the Supreme Court was interested in determining that Aboriginal title can prevail over fee simple title, this may not have been the case to do it. The procedural facts are messy. The private property owners are no longer part of the action. The Court would have had to decide whether Aboriginal title prevails over private property where the fee simple owners are not present to defend the claim.
Nevertheless, the Court had an opportunity to clarify the relationship between Aboriginal title and private property. It declined. The uncertainty continues.
For the original version of this commentary, see the publisher’s website here.
Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.
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