Wolastoquey Nations v New Brunswick and Canada et al, 2024 NBKB 203 – Case Summary

On November 12, 2024, the Court of King’s Bench of New Brunswick released a procedural decision relating to an Aboriginal title claim by six Wolastoquey Nations: Matawaskiye, Neqotkuk, Wotstak, Pilick, Sitansisk, and Welamukotuk. The claim area includes more than 50% of the Province of New Brunswick, including private (fee simple) lands. The Wolastoquey Nations sought relief against both the Crown and private industrial developers. In this decision, the court considered whether to strike portions of the plaintiffs’ claim dealing with private lands. The court struck the plaintiffs’ claims against the private landowners on the basis that it is for the Crown to reconcile interests between Indigenous and non-Indigenous Peoples. In the court’s view, the Crown is responsible to represent the interests of private landowners in this litigation.

Photo credit: Gordon Lyall

History of the Case

In the Wolastoquey Nations’ first statement of claim they named only the Attorney General of New Brunswick and the Attorney General of Canada as defendants. Those defendants expressed concern relating to the claim’s potential impact on private landowners and the plaintiffs’ failure to notify or include those parties in the litigation. In response, the Wolastoquey Nations amended their statement of claim to add the industrial developers as defendants, though not other owners of lands within the claim area. In a previous decision,¹ the court held that the plaintiffs could not file certificates of pending litigation on title to lands at issue in the claim.

Photo credit: Krista Robertson

The Decision

The court held that, if the plaintiffs prove Aboriginal title, the court may issue a declaration of Aboriginal title over all lands within the claim area, including private lands, but the court cannot grant relief directly as against private parties. In the court’s view, because of the special relationship between Aboriginal Peoples and the Crown, it is the sole responsibility of the Crown to defend an Aboriginal title claim. In effect, the court seems to have held that Aboriginal title is only enforceable against the Crown. The court indicated that there may be circumstances in which a court may compel the Crown to expropriate private lands subject to Aboriginal title, which would give rise to an obligation on the Crown to pay compensation to the landowner.

The court reviewed case law in which private parties become involved in Aboriginal title claims, criticizing the Chippewas of Sarnia Band² case for pitting fee holder interests against an Aboriginal title claimant, which, in the court’s view, contorts legal principles. The court held that, in considering how to address conflicts between fee simple interests and Aboriginal title interests, the special relationship between the Crown and Aboriginal groups offers guidance. Referring to recent decisions of the Supreme Court of Canada in Shot Both Sides and Restoule,³ the court said:

Both Shot Both Sides and Restoule appear to be refining the role of the courts in Aboriginal rights litigation. Once the conflict or wrongdoing, however it may be characterized is factually and legally determined, a reconciliation process is triggered invoking polycentric considerations on the part of the Crown. While a court will, or may, hold a reviewing jurisdiction over this process, and possibly a decision-making jurisdiction should reconciliation break down absolutely, it will be on the Crown to take into consideration the fee simple title interests of land holders as part of that process of reconciliation.

New Brunswick argued that the claim called upon the court to exceed its jurisdiction by seeking a declaration of Aboriginal title over lands burdened by fee simple interests held by non-parties. The court held that declaratory relief can be granted for the purpose of promoting reconciliation between the Crown and Aboriginal Peoples, and that private party interests in land have no legal role in the reconciliatory processes between the Crown and Aboriginal groups. The court removed the industrial developers from the litigation on that basis.

Conclusion

In this decision, the court held that Aboriginal title claims can be made against private lands and that a court may issue a declaration of Aboriginal title over private lands but that such a declaration does not directly affect a private interest in land and that Aboriginal title must be enforced against the Crown. The industrial developers have indicated their intention to appeal.

Footnotes

¹ Wolastoqey Nations v. New Brunswick and Canada, et.al., 2024 NBKB 21.

² Chippewas of Sarnia Band v. Canada, 2000 CanLII 16991 (ON CA), 51 O.R. (3d) 641.

³ Shot Both Sides v. Canada, 2024 SCC 12; Ontario v. Restoule, 2024 SCC 27.