Facts and Introduction
J.D. Irving, Limited et al. v. Wolastoqey Nation, 2025 NBCA 129 is a judgment of the New Brunswick Court of Appeal (“NBCA”) overturning part of a lower court’s ruling that the court could grant Wolastoqey Nation, comprised of six First Nation communities in New Brunswick,1 a declaration of Aboriginal title in relation to lands that include privately owned fee simple parcels held by corporations (referred to in the judgment as the “Industrial Defendants”).2
On an application to strike, the motions judge agreed to remove the Industrial Defendants as parties to the Wolastoqey Nation’s claim, reasoning that the Nation’s direct claim against them had “no reasonable prospect of success.”3 The motions judge however found that the Wolastoqey Nation could pursue their declaration of Aboriginal title to the Industrial Defendants’ lands, but against the Crown.4 On appeal, the NBCA held that a declaration of Aboriginal title was not an available remedy for the Nation over the privately owned fee simple lands.
The Wolastoqey Nation filed a statement of claim seeking, among other things, a declaration of Aboriginal title to lands comprising the western half of what is now New Brunswick. The claim area included Crown lands, fee simple lands owned by the Industrial Defendants, and fee simple lands owned by other private landowners (referred to in the judgment as “Strangers to the Claim”).5 The Wolastoqey Nation’s claim included the provincial and federal governments and the Industrial Defendants as defendants, but excluded the Strangers to the Claim, as the Nation sought a finding of Aboriginal title in relation to their lands, which unlike a declaration, would not displace their rights and interests.6
This case comes at a pivotal time as courts continue to grapple with complexities in the balancing of Aboriginal and non-Aboriginal rights and interests, and the promises of reconciliation. The NBCA’s findings include: (1) procedural fairness necessitates the participation of private landowners in Aboriginal title litigation where their land interests stand to be impacted; (2) Aboriginal title and fee simple land interests are fundamentally incompatible and not capable of mutual or functional coexistence; and (3) “principled reconciliation” suggests that compensation is the appropriate remedy where Aboriginal title is established on lands burdened by private land ownership.
This decision stands in contrast to the recent trial decision in Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490 (“Cowichan”) in key ways. The Court in Cowichan held that: (1) neither Aboriginal title nor fee simple title is absolute; (2) Aboriginal title burdens land held in fee simple; and (3) Aboriginal title and fee simple interests can coexist, but may not be exercised in their fullest form; the exercise of Aboriginal title and fee simple rights require contemporary reconciliation, which is considered through the infringement and justification framework established in Sparrow.7 In Cowichan, the trial judge granted a declaration of Aboriginal title over lands held in fee simple by non-parties, on the basis that the Cowichan Nation did not seek to invalidate private landowners’ interests; those landowners would have an opportunity to make submissions in any subsequent proceedings brought against them by the Cowichan.8
A declaration of Aboriginal title vs a finding of Aboriginal title
“In my view, 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.”9
A declaration of Aboriginal title to privately owned lands, at the expense of private landowners’ rights and interests, is incompatible with principled reconciliation
The NBCA held that where a claimant group seeks to prove its Aboriginal title to privately owned lands, a finding of Aboriginal title is available to support a claim in damages and for compensation against the Crown; a declaration of Aboriginal title to those lands is generally not an available remedy.10
The Court reiterated that declaratory relief in Aboriginal title claims is a discretionary remedy. Claimant groups must meet the conditions precedent to justify such a declaration. A declaration of Aboriginal title requires: (1) a finding of Aboriginal title; (2) satisfaction of the criteria for granting declarations set by Ewert v. Canada, 2018 SCC 30; (3) the absence of a valid defence; and (4) no resulting injustice.11
The Ewert criteria allow a court to exercise its discretion to grant a declaration where (1) the Court has jurisdiction to hear the issue; (2) the dispute before the court is real and not theoretical; (3) the party raising the issue has a genuine interest in its resolution; and (4) the respondent has an interest in opposing the declaration sought.12 The Court found that the Ewert criteria were not met, and even if met, would result in injustice. In particular, the fourth criterion was not met because the Industrial Defendants were not parties to the litigation because they had no legal relationship with the Plaintiffs; as non parties they could not oppose the declaration.13
The Court based its finding that injustice would result from a declaration of Aboriginal title based in part on the fact that the Industrial Defendants could not be proper parties to the action and would thus be deprived of their right to be heard. The Court held that while the nature of section 35 claims sometimes requires adapting court procedures and rules, “time-honoured principles of natural justice” cannot be excluded.14 Next, the Court found that unfairness would result from a declaration of Aboriginal title because such a declaration is irreconcilable with the Industrial Defendants’ legal rights and entitlements to their privately owned lands given the rights exercisable upon a declaration of Aboriginal title, including the right to exclusive occupation and possession.15 Lastly, the Court found that a declaration of Aboriginal title would be unfair because there was no actionable wrong claimed against the Industrial Defendants—they were described as “innocent” in relation to the dispute between the Wolastoqey Nation and the Crown.16
The Court considered UNDRIP in its assessment of whether the exclusion of private landowners from the action was justifiable in the circumstances. The Court did not find that UNDRIP required that Indigenous claimants be able to pursue declarations of Aboriginal title against privately owned lands where the procedural fairness rights of those private landowners would be breached.17
A finding of Aboriginal title strikes an appropriate balance between Aboriginal and non-Aboriginal interests
The Court found that a finding of Aboriginal title to fee simple lands was better aligned with “principled reconciliation” of Aboriginal rights and the interests of all Canadians.18
A finding of Aboriginal title would not grant the Wolastoqey Nation exercisable rights typically associated with Aboriginal title, but rather would provide a path for an award of damages and compensation against the Crown.19 The NBCA held that a finding of Aboriginal title does not necessarily give rise to a declaration of Aboriginal title, commenting that “remedial justice favours compensation from the Crown over dispossession of private fee simple owners.”20 The NBCA confirmed that the test for a finding of Aboriginal title is the accepted legal test for Aboriginal title, articulated in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.21
Concluding Remarks
The Court framed the purpose of its judgment, in part, to “open a clearer path to peaceful and respectful reconciliation between Aboriginal and non-Aboriginal Canadians” in New Brunswick.22 In seeking to do so, the Court affirmed an inherent incompatibility between the rights and entitlements of fee simple and Aboriginal title. The Court’s vision of reconciliation requires Aboriginal title to yield to fee simple interests, narrowing innovative and responsive solution-making. The Court’s conclusion differs markedly from the Cowichan decision which supported a context-specific balancing of interests to explore what reconciliation could look like, based on the facts, interests, and aspirations for reconciliation at play.
Footnotes
1 Matawaskiye, Neqotkuk, Pilick, Sitansisk, Welamukotuk, and Wotstak.
2 Wolastoqey Nations v. New Brunswick and Canada, et.al., 2024 NBKB 203.
3 J.D. Irving, Limited et al. v. Wolastoqey Nation, 2025 NBCA 129, at para 5. [hereafter “Wolastoqey”]
4 Wolastoqey, at paras. 3, 5-6, 187.
5 Wolastoqey, at paras. 1-2.
6 Wolastoqey, at paras. 44-46.
7 Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490, at paras. 2141, 2195 and 2202.
8 Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490, at paras. 3584, 3586.
9 Wolastoqey, at para. 192.
10 Wolastoqey, at para. 9.
11 Wolastoqey, 193.
12 Wolastoqey, at para. 198, quoting Ewert v. Canada, 2018 SCC 30 at para. 81.
13 Wolastoqey, at paras. 187-189.
14 Wolastoqey, at para. 200.
15 Wolastoqey, at para. 200.
16 Wolastoqey, at para. 200.
17 Wolastoqey, at para. 161.
18 Wolastoqey, at para. 192.
19 Wolastoqey, at paras. 7, 191.
20 Wolastoqey, at paras. 198, 202.
21 Wolastoqey, at para. 185.
22 Wolastoqey, at para. 6.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice.
See CanLII for the Reasons for Judgment.
