At odds over Aboriginal title

In the wake of two significant decisions on Aboriginal title, legal experts say the decisions expose a gap in Supreme Court doctrine that will need to be resolved in the years ahead.

That said, they insist the path to reconciling Aboriginal title and other interests can’t be traced solely through the courts. 

In December, the Court of Appeal of New Brunswick issued a decision excluding private lands from a title claim by the Wolastoqey Nation. The claim sought a declaration of Aboriginal title over more than half of New Brunswick, including land owned by three forestry companies. In his ruling, former Chief Justice Ernst Drapeau said he was seeking “to open a clearer path to peaceful and respectful reconciliation between Aboriginal and non-Aboriginal Canadians in this province,” but it was unclear how the rights of Aboriginal title could co-exist with the same rights vested in fee-simple owners.

That decision came three months after a Supreme Court of British Columbia ruling, Cowichan Tribes v. Canada, where the judge issued a declaration of Aboriginal title for the Cowichan Tribes covering approximately 732 acres of historic village lands in Richmond, B.C., including lands held in fee simple title. 

The fact that the results vary so widely from one another suggests there’s more to come in this realm. Yet while Cowichan, in particular, has been described by politicians and other groups as a radical disruption of private property rights, legal experts say the decisions are best understood as a continuation of decades of treaty negotiations—and can’t be resolved until Canada takes its constitutional obligations seriously.

“I think it’s inevitable that this is going to make its way to the Supreme Court,” says Merle Alexander, principal at Miller Titerle + Company, and a member of Kitasoo Xai'xais First Nation. 

“The Crown’s going to learn its lesson. It's this resistance … that continues to make the reconciliation path that much steeper.”

In both B.C. and New Brunswick, the cases arose out of the circumstances of European settlement and the ways in which colonial governments forced Indigenous people from their land. 

New Brunswick and the other Maritime provinces are covered by the 18th-century Peace and Friendship Treaties, which did not address the secession of land. That mirrors the situation in British Columbia, where no treaties were negotiated, and the majority of the province was never treaty-ceded.

Despite the absence of land-secession treaties, a significant portion of the land in New Brunswick was transferred to private owners in fee simple over the four centuries since contact.

Meanwhile, in British Columbia, the Crown has often acted as if it owned the land, despite having no treaties in place. This included the 19th century, when Colonel Richard Moody — the Crown official responsible for setting aside reserve lands at Indigenous settlements — covertly sold some of Cowichan lands in the village of Tl'uqtinus to himself for land speculation. 

In more recent decades, cases have settled some questions around the existence and scope of Aboriginal title in British Columbia. In Tsilhqot’in Nation v. British Columbia in 2014, the Supreme Court of Canada confirmed Aboriginal title over a specific area of land for the first time, but did not reconcile it with fee simple interests.

Nicole O'Byrne, an associate professor in the University of New Brunswick’s Faculty of Law, says that case reopened the issue, including in lands covered by Peace and Friendship treaties.

“Tsilhqot’in recognizes a much more expansive view of what Aboriginal title constitutes.”

Yet the recent decisions in Cowichan and New Brunswick do not align, she says. 

“This is an important issue that should be sorted out so that we have law that applies clearly to all of Canada. Right now, we're seeing very conflicting and contradictory results that lead to confusion.”

In New Brunswick, Justice Drapeau denied a declaration of title to fee simple lands when the owners were not parties to the case. He also distinguished a declaration of Aboriginal title from a finding of Aboriginal title by allowing the Wolastoqey Nation to seek compensation from the Crown for those lands if successful in their claim, though without changing ownership rights. 

“It shifts [the focus] from land ownership to compensation,” says O'Byrne.

In a statement, the Wolastoqey Nation said it was “deeply disappointed” by the decision and had asked its lawyers to seek an appeal to the Supreme Court of Canada.

In contrast, in the wake of Cowichan, the five-year litigation concluded with the judge recognizing that Aboriginal title can co-exist on lands held in fee simple, and ordering the return of lands held in fee simple by the City of Richmond, the Vancouver Fraser Port Authority and the federal government.

The government of British Columbia has said it would appeal the result. 

Cowichan doesn’t destabilize private property law, says Alison Carstairs, chair of the CBA’s Aboriginal Law section. Instead, it represents the outer edge of existing doctrine, while going out of its way to preserve property law stability. 

Despite both courts citing reconciliation, the different outcomes in New Brunswick and British Columbia reflect a gap in current Supreme Court doctrine, she says. 

“The divergence we are seeing nationally is a signal that Aboriginal title law needs a doctrinal bridge explaining how title coexists with fee simple. Until that guidance is provided, courts will continue to diverge in good faith.”

Because the Wolastoqey case could reach the Supreme Court of Canada before the British Columbia Court of Appeal hears an appeal, the outcome of the former case could shape the trajectory of Cowichan, says Dwight Newman, professor of law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.

That’s a process that could take years.

In the meantime, the role of the courts is itself a matter of debate. Legal experts — and the courts themselves — have suggested that the questions around Aboriginal title are ongoing relationships subject to negotiation and too complex for the courts. However, Newman says courts have sometimes been too quick to leave matters to be negotiated. 

“There's some room for judicial caution in not pronouncing ways that cause problems that they don't anticipate. But I think …often they leave stray lines that give rise to a lot of consternation, and they might do better sometimes by resolving some legal questions more fully.”

As it stands, the limits of negotiation have helped bring matters to this point. The Wolastoqey title claim began as a last-ditch attempt to have constitutional rights respected after the relationship with the New Brunswick government deteriorated. Alexander says that if the B.C. government had been more flexible during negotiations with the Cowichan Nation, it could have avoided the kind of fee-simple ruling that some politicians are now stoking fears about.  

The fact that such discourse has arisen in the wake of the Cowichan decision — which he says should be celebrated as a legal milestone rather than portrayed as a crisis — reflects a growing pushback against Indigenous rights. 

“I think it's a very negative reflection of where we currently are on these issues.”