New Brunswick’s top court has narrowed the scope of a major title claim by the Wolastoqey Nation, excluding private lands belonging to three large forestry companies from any ownership claim.
The New Brunswick Court of Appeal says however that the Wolastoqey can continue their case against the Crown — but only for damages and compensation they deserve for the loss of those same now-private lands.
In the ruling released Thursday, former chief justice Ernest Drapeau said he was seeking “to open a clearer path to peaceful and respectful reconciliation between Aboriginal and non-Aboriginal Canadians in this province.”
The ruling distinguishes between a declaration of Aboriginal title — the equivalent of awarding present-day ownership — and a finding of Aboriginal title, which would acknowledge the Wolastoqey never gave up ownership and deserve compensation.
“There is an important difference between a finding of Aboriginal title and a judicial declaration of Aboriginal title,” he wrote.
“A finding of Aboriginal title does not necessarily justify a declaration of Aboriginal title.”
A finding would trigger negotiations over compensation, Drapeau said.
N.B. court narrows scope of Wolastoqey title claim
In a statement, Wolastoqey chiefs said they were asking their lawyers to seek an appeal at the Supreme Court of Canada.
“The Wolastoqey Nation is deeply disappointed by this decision, including its mischaracterization of our claim and its interpretation of the decision being appealed from,” they said.
The New Brunswick government did not take a position in the appeal.
Attorney General Rob McKee told reporters that his office was examining the decision and that the government still hopes to settle the title claim with the Wolastoqey without a long court battle.
“I want our lawyers to work with them on this at the negotiating table,” McKee said.
In 2021, the Wolastoqey added private industrial land owners to their existing Aboriginal title claim against the federal and provincial governments.
They argue they never ceded the land to the Crown, which nonetheless took it and later sold it to private owners without their consent.
Three large forestry companies — J.D. Irving Ltd., H.J. Crabbe and Sons, and Acadian Timber — applied to have forest land they own excluded from the case.
A lower court judge agreed, ruling that only the Crown has a legal obligation to respect Aboriginal title and that private companies can’t be sued themselves for title.
That ruling however did not preclude the Wolastoqey from seeking a declaration of title over the companies’ land.
The companies appealed that, arguing that their land could not be subject to the claim if they were not parties to the case.
Drapeau agreed that the companies would be deprived of their rights to procedural fairness if they weren’t defendants in a case in which their ownership of their land — known as fee simple ownership — was an issue.
He also said they had no role in the initial taking of unceded land and that any legal bid for a declaration of title would not succeed.
J.D. Irving Ltd., the largest of the three companies that filed an appeal and the owner of more than 650,000 hectares of private land in the claim area, said through spokesperson Anne McInerney that it would not comment on the ruling.
Drapeau’s comment that he was unable to see how Aboriginal title “can co-exist” with conventional, fee simple private ownership appears to be at odds with a recent title claim ruling in British Columbia.
In that case, the judge declared the coexistence of Aboriginal title alongside private property title on land owned by around 125 Richmond residents within the Quw’utsun nation’s roughly 325-hectare claim area.
That ruling has triggered a contentious political debate about whether two seemingly conflicting interests can coexist on the same piece of land.
Drapeau wrote in his ruling that the court must respect the Supreme Court of Canada’s guidance in the 2014 Tŝilhqot’in decision that reconciliation involves a balance between Indigenous and non-Indigenous interests.
Granting “exclusive possession, occupation and use” of the land to the Wolastoqey “would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians,” he wrote.
