Last week the New Brunswick Court of Appeal released its decision in J.D. Irving, Limited et al. v. Wolastoqey Nation, 2025 NBCA 129, the latest procedural ruling in a potentially lengthy course of Aboriginal title litigation.
The Wolastoqey litigation is premised on the idea that the mid-1700s Peace and Friendship treaties in the Maritime provinces did not explicitly effect a land surrender. The claimants thus argue that there are ongoing Aboriginal title rights, including over private land. Their litigation did not seek any declaration against smaller private landowners (whom the claimants labelled “Strangers to the Claim”), but they deliberately included an Aboriginal title claim against larger private landowners (whom they rhetorically labelled “Industrial Defendants”)—the amount of Crown land in New Brunswick is quite limited, so if Aboriginal title claims apply only to Crown land, there are highly limiting implications for their claims.
A set of procedural issues arose with respect to the inclusion of private landowners in the case. Last November, a judge of New Brunswick’s Court of King’s Bench ruled on an attempt by the larger private landowners to get the claim against them struck. That judge did remove them from the case but left the possibility that their land would still be subject to future issues, perhaps to be resolved via a future Crown expropriation of that land (para 134 of that decision, which referred to compensation tentatively). Unsurprisingly, wafting such possibilities did not seem very reassuring, and the larger private landowners appealed this order.
In its recent decision, a panel of the New Brunswick Court of Appeal, with the judgment by the former Chief Justice of New Brunswick, said six key things:
1. It upheld the removal of the private landowners from the case based on the lack of a legal relationship between the First Nation and these private landowners, something making it inappropriate for them to have to defend against a complex Aboriginal title case through the coming years or decades (para 187).
Read the full article at Law for Breakfast: Implications for BC of the NBCA Decision on Aboriginal Title and Private Property