New Brunswick Court Of Appeal Finds Aboriginal Title Cannot Co-Exist With Fee Simple Title

On December 11, 2025, the New Brunswick Court of Appeal issued a decision in the context of an Aboriginal title claim on the issue of whether Aboriginal title can co-exist with fee simple title: J.D. Irving, Limited et al. v. Wolastoqey Nation, 2025 NBCA 129. While the Court found that it could make a finding of Aboriginal title, leading to compensation for the Indigenous nation, a declaration granting Aboriginal title to privately-owned land was not an available remedy. Aboriginal title could be declared over Crown land, however.

This result is inconsistent with the BC Supreme Court's declaration of Aboriginal title over privately-held land in the Cowichan Tribes case (2025 BCSC 1490).

The Wolastoqey Nation has stated it will be seeking leave to appeal to the Supreme Court of Canada.

Background

This decision arises from a claim made by six Wolastoqey First Nations seeking a declaration of Aboriginal title over 283,204 parcels of land – a little over half of New Brunswick. The claim was filed against the provincial and federal governments, NB Power, and the "Industrial Defendants" – a group of seven companies and their affiliates. The land claimed included (i) land held in fee simple by private individuals and the Industrial Defendants, and (ii) ungranted Crown lands. Three of the Industrial Defendants responded to the claim with motions asking to strike the pleadings against them.

In the New Brunswick Court of King's Bench, the motions judge found that because Aboriginal title claims arise from the sui generis relationship between the Crown and Indigenous groups, the pleadings against the Industrial Defendants must be struck, leaving only the provincial and federal governments as defendants. Despite this, the motions judge also concluded that a declaration of Aboriginal title could theoretically be found with respect to privately-owned lands held in fee simple.

The Industrial Defendants appealed the decision to the New Brunswick Court of Appeal.

The Court of Appeal's Decision

While the Industrial Defendants were the only private parties named, the Court emphasized that there was no difference between the property rights of the Industrial Defendants and other private fee simple title-holders in New Brunswick, including ordinary homeowners.

The Court ultimately found that a declaration of Aboriginal title over privately-held land was not possible, contrary to the court below. A declaration of Aboriginal title would grant a right of exclusive use and occupation over the land, which is prima facie at odds with land held in fee simple. On the other hand, a finding of Aboriginal title was available, as such a finding does not confer ownership or possession, but rather "open[s] the door to an award of damages and compensation against the Crown." The Court noted as follows on the distinction:

However, 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. That said, and as asserted, a finding of Aboriginal title would open the door to consideration of an award of damages and compensation against the Crown, in accordance with paragraphs 1(c), 2, 31, 33(e), 34, 35 and 36 of the Statement of Claim.

The Court also commented on the procedural fairness to the Industrial Defendants of issuing a declaration of Aboriginal title. The motions judge struck the Industrial Defendants as defendants in the action but still held the door open for a declaration of Aboriginal title against their land. The Court found this was unfair to these parties, stating:

...such a declaration would be granted without the appellants participation in the process leading to its issuance. The special rules of procedure that are said to apply to Aboriginal rights' litigation do not exclude time-honoured principles of natural justice. Crucially, procedural fairness requires respect by the court for an affected party's right to be heard (citation omitted).

Based on the above, the Court concluded that the claim against the Crown for a declaration of Aboriginal title over ungranted Crown lands could proceed but removed all privately-held lands from the claim for a declaration of title. The Wolastoqey Nation may, however, prosecute its claim for a finding of Aboriginal title in respect of the privately owned lands for the purpose of substantiating their claim for damages and compensation against the Crown for its alleged wrongs.

Ultimately, the Court endorsed the view that "remedial justice favours compensation from the Crown over dispossession of private fee simple owners in all cases although, admittedly, that is especially the case 'when the land has passed through numerous innocent hands' ."

This conclusion is inconsistent with the BC Supreme Court's ruling in the Cowichan Tribes decision, which is being appealed by all parties to the BC Court of Appeal. The Wolastoqey Nation has confirmed that they have instructed their lawyers to seek leave to appeal to the Supreme Court of Canada.

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