Can Aboriginal Title and Fee Simple Ownership Rights Coexist: JB Irving v Wolastoqy Nation

Wabanaki Confederacy, Grug-Jack, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

By Megan Reti

Does Aboriginal title extend to fee simple land owned by private owners? 

Today we will look at this question as we discuss the recent decision in J.D. Irving, Limited et al v Wolastoqey Nation, 2025 NBCA 129. 

This decision arose from the Wolastoqey Nation’s [the “Nation”] claim seeking a declaration of Aboriginal title over a large portion of western New Brunswick, including land owned by the Crown as well as privately owned land held by individuals and corporations ‘[the “Schedule A Lands”]. In addition to Aboriginal title to the broad declaration, the Nation sought a declaration of Aboriginal title against specific private parties [the “Industrial Defendants”] regarding the subset of the Schedule A Lands owned by the Industrial Defendants [the “Schedule B Lands”]. Other private landowners of Schedule A Lands were not parties to the action.

The Industrial Defendants sought to strike portions of the Nation’s statement of claim seeking a declaration of Aboriginal title over their lands, in part on the basis that declarations of Aboriginal title can only be obtained against the Crown.

In the lower court, the judge held that there was no reasonable prospect of success for the Nation’s claim against the Industrial Defendants directly. However, that judge also held that it may be possible for the Nation to seek a declaration of Aboriginal title against the Crown over the Schedule B Lands (paras 5-6).

Reasons of the Court of Appeal

Following an appeal by the Industrial Defendants, the New Brunswick Court of Appeal held that the motions judge’s second determination was made in error, as allowing a declaration of Aboriginal title against the Crown for the Industrial Defendants’ land “without their participation in the preceding process and in violation of their right to be heard” (para 6, emphasis in original) would breach procedural fairness for those landowners who were not party to the proceeding. According to the Court, no declaration of Aboriginal title against the Crown over the Industrial Defendants’ lands, could fulfill the criteria for a court declaration established in Ewert v Canada, 2018 SCC 30. The Court allowed the Nation to pursue only its claim for a declaration of Aboriginal title and all appropriate consequential relief against the Crown in respect to the Crown lands only and not in respect to any privately owned lands (para 11).

Findings vs Declarations

The Court of Appeal distinguished between a finding of Aboriginal Title and a declaration of Aboriginal Title, and held that a finding of Aboriginal title over all the Schedule A Lands may be available (if proven at trial). However, according to the Court, such a “finding” would not burden any private landowners’ title to the lands (para 7), but could fuel the Nation’s claim in damages and for compensation against the Crown (para 9; 191). In the words of the Court, “a finding of Aboriginal title does not necessarily justify a declaration of Aboriginal title” (para 198).

The Court held that the ownership rights conferred by Aboriginal title “acquire legal significance for title purpose only if a judicial declaration of Aboriginal title is made. Thus, in this case, a finding of Aboriginal title, unaccompanied by a confirmatory judicial declaration, would not confer ownership rights in the [Nation’s] land” (para 191).  The Court went on to say that “a judicial declaration of Aboriginal title would confer those ownership rights, and I am unable to see how those rights can co-exist with the very same rights vested in fee simple owners” (para 191).

A New Test

The Court outlined four conditions precedent for a declaration of Aboriginal title:

1. A finding of Aboriginal title;Satisfaction of the criteria set by Ewert;

2. The absence of a valid defence; and

3. No resulting injustice (para 193).

While the Court articulated these conditions as a precedent “distil[led] from the jurisprudence” (para 193), no cases were cited in support of this claim.

The Court held that, even if Aboriginal title is established, the court has discretion in issuing a declaration of said title and that discretion may only be exercised only after all interested parties have had an opportunity to be heard (paras 195-196). All private land owners on the lands for which Aboriginal title was claimed would be interested parties, as their property rights would “cease to be exclusive” (para 196).  

A view of reconciliation

The Court put forth a view of reconciliation through its statement that “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” (para 192). The Court relied on the reasons of the Alberta Court of Appeal’s Slatter, J.A. that “reconciliation is a balancing process that does not involve the subordination of all other public rights to Aboriginal rights” and that the “honour of the Crown does not require every decision to be made in the way most favourable to the Aboriginal interest” (para 197, citing Wesley v Alberta, 2024 ABCA 276 at paras 45, 57).

The Court supports a view of reconciliation that relies on compensation to Indigenous Nations for lands where a finding of Aboriginal title could apply to lands that are under private ownership (paras 201-202).

Leave to Appeal Denied

The Nation applied to the Supreme Court of Canada [“SCC”] for leave to appeal the decision of the appellate court. The SCC denied leave to appeal (Wolastoqey Nation at Welamukotuk (Oromocto First Nation), et al. v J.D. Irving Limited, et al., 2026 CanLII 50180 (SCC)).

Commentary

This decision is troubling for both the reasoning applied, and the lack of consideration of Indigenous law.

First, this decision diverges from the Supreme Court of British Columbia’s recent decision in Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490 [“Cowichan”] and does not distinguish or even refer to the Cowichan decision. For this reason, along with the concerns enumerated below, it remains surprising that the SCC denied leave to appeal this decision.

Second, the distinction between a ‘finding’ of Aboriginal title and a ‘declaration’ of Aboriginal title is an artificial and unnecessary distinction. When a declaration of Aboriginal title is made, the title vests immediately (Tsilhqot’in Nation v British Columbia, 2014 SCC 44). The Court made the distinction between finding and title to avoid immediate dispossession of the private owners resulting from the vesting of this title. However, the immediate effect of Aboriginal title vesting is not dispossession of private parties. As pointed out by law professor Dr. Robert Hamilton, when lands vest in title, this vesting does not grant an immediate right of possession if the lands are subject to another interest. Rather, the declaration should be followed by “distinct and context specific remedies” (“The New Brunswick Court of Appeal Weighs in on Aboriginal Title and Private Lands”, (14 January 2026), online: ABLawg.ca [“Hamilton blog”]). For example, Cowichan required the provincial government to negotiate a solution with the Aboriginal title holders. 

Professor emeritus Kent McNeil posits that the Court, in holding that all declaratory relief is discretionary, failed to distinguish between “pure” declaratory judgments, which are discretionary, and declaratory judgments that entail consequential relief, which are not (“Declarations of Aboriginal Title Are Not Discretionary” (11 February 2026), online: ABlawg). McNeil goes on to point out the Court’s “questionable view” that a “finding” of Aboriginal title with   a “declaration” could substantiate claims against the Crown. As McNeil points out, the two cases relied on by the Court as precedents for the holding that Aboriginal title is established, a judicial declaration will not automatically follow (Manitoba Metis Federations Inc v Canada (Attorney General), 2013 SCC 14 and Shot Both Sides v Canada, 2024 SCC 12), are not actually cases about Aboriginal title.

Third, the Court’s newly articulated conditions precedent for a declaration of Aboriginal title were described as “distil[led] from the jurisprudence”, but the decision fails to identify or specify what jurisprudence was considered. As stated by Dr. Hamilton, “these “conditions precedent” are not articulated in any other case on Aboriginal title (Hamilton Blog) and leave unanswered what cases were relied on and can be relied on for future applications of this precedent.

Finally, the Court’s concept of reconciliation is particularly troubling as it suggests that meaningful recognition of Indigenous rights is incompatible with reconciliation. The Court reasoned that recognizing Aboriginal title over privately held lands would effectively "sound the death knell" of reconciliation, implying that extending Indigenous rights would undermine, rather than advance, the reconciliation project. This framing positions the acknowledgment of Indigenous rights as a threat to reconciliation instead of recognizing reconciliation as requiring the meaningful recognition and implementation of those rights, even where inconvenient or challenging to implement.

When considered from an Indigenous law perspective, a further question arises. The Court's view that reconciliation ought to take the form of compensation paid to Indigenous nations, rather than return of lands to which Aboriginal title applies, fails to take into account the importance of traditional territory to the culture, lifestyle, history, and laws of the Indigenous Nations affected. Indigenous Nations live in relationship with their traditional territory and it should not be presumed that loss of that relationship can truly be compensated monetarily. For more information on the importance of land and its relationship to Indigenous legal orders, see the works of Indigenous legal scholars John Borrows,  Nancy Sandy and Sarah Morales.

Until next time, 

ReconciliACTION YEG