Private land in NB subject to Indigenous title claim after Canadian court ruling

A New Brunswick court has ruled that Aboriginal title, or the legal means by which Indigenous people claim property, can be used on privately held land in the Canadian province if indigenous nations go through the government to do so. The court decided the ruling earlier this month and it may set the precedent of Aboriginal title being used to challenge the legal standing of property owned by corporations.

On November 14, Justice Kathryn Gregory of the Court of King’s Bench ruled in connection to a lawsuit made by six Wolastoqey Nations that sought Aboriginal title claims for over 50 percent of the land in the province of New Brunswick. Great swaths of land in the area are owned by oil as well as timber companies, per the Canadian Press.



The Canadian Press reported, “The previous government had said that in challenging the Wolastoqey title claim it was protecting families, homeowners, businesses and others who own property within the contested area. Last year, then-premier Blaine Higgs said public statements by the Wolastoqey that their claim would not affect private landowners did not match their court filings.”

Gregory ruled that several companies who were the defendants in the suit were to be removed and that the legal dispute would only be between the Canadian government and indigenous nations. The CBC reported that JD Irving, Acadian Timber Limited, and other companies have appealed the decision to be taken off the lawsuit.

The ruling from Gregory states, "Aboriginal title, if declared, is declared as against the Crown. It 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," the judge continued in the ruling. "Assuming as I must for the purposes of the motion that the Plaintiffs have Aboriginal title to the lands claimed, I find that the pleadings against the IDs directly do not establish a legal relationship or interest such that they along with the Crown are proper parties to oppose the request for a constitutional declaration."

The appeal from the various companies taken off the lawsuit stated in their appeal to the decision that it is unfair to have the Wolastoqey Nation "maintain a claim" on their property "while, at the same time, excluding the... Appellants from participating in this action thereby depriving them of their right to be heard and to make submissions regarding their fundamental property rights."

The case has drawn attention as the ruling, if it stands, could have larger implications for commercial land owners.

When Gregory decided the ruling, the Wolastoqey Nation of New Brunswick said in a Facebook post, "[The] precedent-setting court decision reaffirmed the Crown's obligation to negotiate with the Wolastoqey, and underscored that the province has a legal and moral duty to work towards reconciliation. The Chiefs reiterated that negotiation is their preferred way to respect their Rights and account for other interests."

Editor’s note: The headline and body of this story have been updated to reflect that the ruling involves land owned by corporations in New Brunswick.

Kathryn Gregory Decision on Scribd