Opinion: Aboriginal title and private property left in limbo

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On May 28, the Supreme Court denied leave to appeal a controversial decision of the New Brunswick Court of Appeal involving a conflict between Aboriginal title and private property. The Wolastoqey Nation claims Aboriginal title over about half the province, including extensive landholdings of major corporations. They sought a declaration of Aboriginal title over their territory but only sought the return of Crown land and certain parcels held by named corporations. They were not seeking a return of smaller landholdings or any other remedy against those private landowners.

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Before trial, the corporate landowners brought motions to be removed as parties. The motions judge, Justice Gregory, while agreeing to remove them from the case, decided that Aboriginal title could nonetheless be declared over their lands. She placed responsibility to resolve any resulting conflict over these land rights on the Crown. The corporations appealed this aspect of her decision.

The Court of Appeal decided in favour of the corporations. Justice Drapeau’s main reason was that it would offend fundamental principles of natural justice and procedural fairness for title declarations to be made over their lands without their presence in court to defend their interests. In his view, Justice Gregory’s compromise solution of avoiding consequential relief against them by placing responsibility on the Crown would not mean that their interests would be unaffected. Justice Drapeau decided nonetheless that a factual finding of Aboriginal title could be made without a declaration which, while not burdening the corporate lands in any way, could be the basis for an award of compensation against the Crown for wrongfully granting those lands.

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This would have been sufficient for the Court of Appeal to decide the case. However, Justice Drapeau provided another reason why “no court would exercise its discretion in favour of a declaration of Aboriginal title” over the corporate lands, namely that “the declaration would vest in Wolastoqey Nation rights and entitlements with respect to the appellants’ lands that are irreconcilable with their legal rights and entitlements (e.g. exclusive possession, occupancy, and use).” But if the corporate entitlements were wrongfully created by the Crown in the first place, why should they prevail over Aboriginal title? Justice Drapeau’s answer appears to be that reconciliation requires this, but how can a result that completely favours large corporations further this laudatory goal? And what is the legal justification for concluding Crown grants somehow resulted in extinguishment of Aboriginal title? Since Aboriginal title was constitutionally recognized and affirmed in 1982, even Parliament cannot extinguish it. So how can this be done by judicial fiat without legal explanation?

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With so much at stake, one has to wonder why the Supreme Court denied leave.

In the Cowichan Tribes case from August last year, Justice Young of the British Columbia Supreme Court issued a declaration of Aboriginal title that included fee simple lands owned by the City of Richmond. Contrary to Justice Drapeau, she ruled that Crown grants cannot have resulted in extinguishment of Aboriginal title and that it can coexist with fee simple estates. Moreover, she regarded Aboriginal title as a pre-existing “senior interest in land” that “is not inferior to other rights and interests in land. Uncertainty should not cause courts to prioritize fee simple interests over Aboriginal title.” For her, reconciliation requires that Aboriginal title and fee simple interests both be taken into account, and like Justice Gregory she placed responsibility for doing this and resolving any conflict between them on the original wrongdoer – the Crown that granted the lands without first obtaining a surrender of Aboriginal title.

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One of the Supreme Court’s responsibilities is to clarify the law by resolving conflicts arising from lower court decisions, especially when matters of national concern and fundamental public importance are at stake. But given that the Wolastoqey Nation appeal involved a pretrial procedural issue of proper parties in Aboriginal title actions, perhaps the court thought it was not an appropriate case for resolving conflicts between Aboriginal title and private property. Importantly, denial of leave to appeal does not mean the court agrees with the New Brunswick decision. It may be waiting for the Cowichan Tribes case to go up on appeal so it can deal with a factual situation where Aboriginal title has actually been found to exist in relation to private land. In the meantime, Indigenous peoples, private landholders, and Canadians generally are left waiting, with all the consequential uncertainty around property rights.

Kent McNeil, is Emeritus Distinguished Research Professor at Osgoode Hall Law School at York University. He is the author of three books and numerous articles on Aboriginal title and other Indigenous issues, and he continues to research and publish in this area.

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