Did Somebody Say Aboriginal Title and Private Lands in the Same Sentence? Wolastoqey Nation’s Big Next Step in Aboriginal Title, and What That Means for Private Property
The Court of King’s Bench in New Brunswick released a decision regarding the Crown and the Industrial Defendants’ motion to strike elements of an Aboriginal title claim to over half of the Province. The decision was a resounding victory for the Wolastoqey Nation moving the claim forward. Big steps were taken in clarifying private lands and Aboriginal title, and although it’s a trial court decision and non-binding across the country, the decision is an exciting example of legal evolution.
Facts
In 2021, six Wolastoqey communities – Welamukotuk (Oromocto First Nation), Sitansisk (Saint Mary’s First Nation), Pilick (Kingsclear First Nation), Wotstak (Woodstock First Nation), Neqotkuk (Tobique First Nation), and Matawaskiye (Madawaska Maliseet First Nation) – filed an Aboriginal title claim to five million hectares of their traditional lands. The claim covers over half of the province’s land base that borders Maine in the United States and Quebec in Canada.
In the Wolastoqey Nation’s title claim, the province of New Brunswick and Canada are Defendants alongside primarily forestry companies, but also oil and gas, railway, and other companies. The companies are known as the Industrial Defendants in the decision, and they are important to the case as the Wolastoqey Nation is seeking Aboriginal title to their fee simple land (private lands).
Past cases at the Supreme Court of Canada (SCC) have not considered whether or not Aboriginal title can be declared over private lands – the Tsilhqot’in Nation’s title case dropped its claims to private property before it went to the SCC, and most other Aboriginal title claims haven’t required the courts to make decisions around private lands as most exclude private lands for ease of process, and some who do haven’t been decided yet.
New Brunswick filed a motion to strike certain aspects of the case, including Aboriginal title to private property, and the map of the claim area the Nation submitted to the court. A motion to strike is a tool used that argues the case, or portions of it, should not move forward to trial as there are either no legal grounds or no legal chance of success. The Crown argued that private lands couldn’t co-exist with Aboriginal title on the same parcels of land. The Industrial Defendants also filed a motion to strike aspects of the case, saying the Wolastoqey Nation didn’t have any reasonable chance of success in getting Aboriginal title to the lands they owned as title couldn’t be found in respect to private lands.
So, what do you think the judge had to say about the Defendants’ arguments? Simply, “I do not agree.”
Decision
Justice Kathryn George found that a declaration of Aboriginal title could be issued over private property, and the Wolastoqey Nation can pursue their claim without amending the title area. This includes the land owned by the Crown and the Industrial Defendants found within the claim area.
However, the judgement stated that private companies cannot be sued directly in an Aboriginal title claim, taking the Industrial Defendants off the hook and putting the liability only on the Crown. The judge stated that Indigenous Nations have a specific legal relationship with the Crown that doesn’t include private parties; she freed the Industrial Defendants from the case as a result.
This means that, if Aboriginal title is proven to exist where there is private property, the Wolastoqey Nation can only pursue remedies from the Crown. Therefore, should the Nation be successful in seeking the return of land or compensation, the Crown alone would be responsible. Aboriginal title for the Wolastoqey Nation could then go beyond simple compensation – it could bring land back to the Nation who has governed such lands since time immemorial to revitalize their traditions and management practices.
Lastly, the court clarified a significant procedural step for Aboriginal title claims. Justice George detailed a “negotiation and reconciliation” phase to occur, which she views as the outcome from two SCC decisions – Jim Shot Both Sides v. Canada and Restoule v Ontario. You may recognize these case names as, through our Intervenor Fund, RAVEN supported the Assembly of Manitoba Chiefs in Jim Shot Both Sides and West Moberly First Nations in Restoule as Intervenors. The procedural step of “negotiation and reconciliation” requires that the Crown take declaratory judgments from the courts to be catalysts for negotiation and reconciliation between the Crown and Indigenous Nations. In Wolastoqey Nation’s case, it means the Crown would have a legal responsibility to try to reconcile the existence of private property and Aboriginal title if the Nation is successful.
Discussion
The court decision is wonderful news for the Wolastoqey Nation and their title claim. The decision is already getting responses from the new Liberal majority government in New Brunswick that was just elected in November. They have asked the Wolastoqey Nation to pause their title claim as they are taking a new direction for truth and reconciliation in New Brunswick than the previous Conservative government. The Wolastoqey Nation and the new Liberal government plan to head into negotiations, and, if the government acts in good faith, the Nation may pause the litigation. This is a great example of how court cases can bring change and even victories without having to go all the way to trial.
We will eagerly be waiting to see what happens on the East Coast as we applaud this victory. Aboriginal title is an evolving part of Canadian law – the Haida Nation came to a settlement agreement with the province of B.C. over Aboriginal title, the first ever seen, and the Tsilhqot’in Nation celebrated their 10-year anniversary of the first Aboriginal title win at the SCC. The future of Aboriginal title will continue to be an incredibly important one for reconciliation in Canada, and the Wolastoqey Nation’s decision gives us hope.
Resources
https://www.cbc.ca/news/canada/new-brunswick/wolastoqey-title-claim-court-decision-1.7387471
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