J.D. Irving, Limited et al. v. Wolastoqey Nation, 2025 NBCA 129

Drapeau J.A. (for the Court) – #

[In its Statement of Claim in the New Brunswick Court of King’s Bench, the Wolastoqey Nation sought a declaration of Aboriginal Title in ungranted Crown lands as well as lands subject to fee simple interests held by the appellant, J.D. Irving, and other named “Industrial Defendants”, but not in lands subject to other fee simple interests held by “Strangers to the Claim”. The appellant sought an order striking portions of the Statement of Claim that asserted a cause of action against them for a declaration of Aboriginal Title on the ground that “declarations of Aboriginal title can only be obtained against the Crown.” The motions judge determined that it was “plain and obvious” the claim against the appellants for a declaration of Aboriginal Title and various consequential relief had no reasonable prospect of success at trial, but that it was not “plain and obvious” that the Wolastoqey Nation was precluded from prosecuting its claim against the Crown for a declaration of Aboriginal Title over the appellants' lands. It is this latter finding that is under appeal by J.D. Irving in the decision excerpted below.

The New Brunswick Court of Appeal agreed with the appellant, finding that it is “plain and obvious” that the Wolastoqey Nation’s claim against the Crown for a declaration of Aboriginal Title had no of chance of success at trial. However, the Court found that this did not preclude the Wolastoqey Nation from seeking a “finding” of Aboriginal Title in relation to the appellant’s lands as the basis for pursuing damages and compensation against the Crown. The Court distinguished a “finding” of Aboriginal Title from a “declaration” of Aboriginal Title on the basis that the former would not afford the Wolastoqey Nation the substantive rights of Aboriginal Title holders against the fee simple rights of the appellants.]

The appeal is allowed for the purpose of setting aside the order greenlighting the prosecution of Wolastoqey Nation’s claim against the Crown for a declaration of Aboriginal title with respect to the appellants’ lands. It is plain and obvious that this claim has no chance of success at trial. Accordingly, the appellants’ lands in Schedule “B” to the Statement of Claim are removed from the outstanding claim against the Crown for a declaration of Aboriginal title and all claims for related consequential relief are struck. The formal judgment is to be amended accordingly.

In the result, Wolastoqey Nation is legally entitled to pursue its claim for [a declaration]{.underline} of Aboriginal title and all appropriate consequential relief against the Crown in respect of the Crown lands in Schedule “C”, to seek [a finding]{.underline} of Aboriginal title in relation to the privately owned lands in Schedule “A”, including the appellants’ lands in Schedule “B”, and to litigate its claim for an award of damages and compensation flowing [from such a finding.]{.underline}

[…]

D. What is the content of Aboriginal title? #

The incidents of Aboriginal title were enunciated by the former Chief Justice of Canada in Tsilhqot’in Nation:

Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land. [para. 73]

As I understand the law, those incidents acquire legal significance for title purposes only if a judicial declaration of Aboriginal title is made. Thus, in this case, a finding of Aboriginal title, unaccompanied by a confirmatory judicial declaration, would not confer ownership rights in the appellants’ land, such as “the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.” 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.

In Tsilhqot’in Nation, the Supreme Court of Canada ruled the framework for the application of s. 35, which recognizes and affirms existing Aboriginal rights, contemplates a principled reconciliation of Aboriginal rights and the interests of all Canadians. In my view, a declaration of Aboriginal title over privately owned lands, which, by its very nature, gives the Aboriginal beneficiary exclusive possession, occupation, and use would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.

[…]

G. Reconciliation #

Reconciliation is the fundamental objective of the modern law of Aboriginal rights: Restoule at para. 68. Along the same lines, it has been written that reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982 (see *Beckman v. Little Salmon/Carmacks First Nation,*2010 SCC 53, [2010] 3 S.C.R. 103, at para. 10, and Tsilhqot’in, at para. 82). Reconciliation “is a balancing process that does not involve the subordination of all other public rights to Aboriginal rights”: Wesley v. Albert 2024 ABCA 276, [2024] A.J. No. 1011 (QL), Slatter J.A., at para. 45. The honour of the Crown “does not require that every decision be made in the way most favourable to the Aboriginal interest” (ibid, at para. 57).

There is an important difference between a finding of Aboriginal title and a judicial declaration of Aboriginal title. As stated, perhaps too often, a finding of Aboriginal title does not necessarily justify a declaration of Aboriginal title. In Shot Both Sides, the Supreme Court of Canada confirmed the criteria identified in Ewert v. Canada continue to govern the availability of declaratory relief. Those criteria are set out in the following excerpt from Ewert: “A court may, in its discretion, grant a declaration where it has jurisdiction to hear the issue, where the dispute before the court is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought [...]” (para. 81).

[…]

That said, even if the Ewert criteria were met in this case or ceased to govern because the Crown is the only defendant, I am convinced no court would exercise its discretion in favour of a declaration of Aboriginal title over the appellants’ lands for the following reasons. First, 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: Canadian Civil Procedure Law, at p. 105, para. 2.30. Second, 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). In this regard, Wolastoqey Nation has not persuasively countered Acadian’s submission that it explicitly acknowledged in first instance “some equivalent” to the “return of land” could satisfy the claim of Aboriginal title, in addition to compensation for loss of use. In other words, a remedy other than the return of land could be acceptable (see footnote 27 at p. 20 of Acadian’s Appellant’s Submission). Third, there is no allegation in the Statement of Claim of actionable wrongs by the appellants in relation to the lands over which the Wolastoqey Nation claim a declaration of Aboriginal title. In fact, the appellants have been described as “innocents” in relation to the dispute between Wolastoqey Nation and the Crown. As the motions judge underscored:

The Plaintiffs do not dispute, and candidly accept, that no private law cause of action applies against any of the IDs. There is no claim against the IDs in contract, negligence, or tort. Indeed, the Plaintiffs, in oral submissions, recognized and referred to the IDs as “innocents” in this matter. [para. 111]

In an article entitled “How can Canada reconcile Aboriginal title and the rights of people with property on that land?” and published in The Globe and Mail on September 9, 2024, Professor Kent McNeil expresses the following opinion:

Dispossessing the current beneficiaries of government land grants would not be just, especially when the land has passed through numerous innocent hands. Instead, compensation should be paid to the Indigenous nations concerned.

I endorse this commonsensical and reconciliation-friendly conclusion. In my view, 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”.

V. Conclusion and Disposition #

I would reverse the decision to let stand: (1) the claim against the Crown for a declaration of Aboriginal title over the appellants’ lands; and (2) all relief consequential to any such declaration. In the result, the appellants’ lands (Schedule “B” to the Statement of Claim) are removed from the claim against the Crown for a declaration of Aboriginal title. However, Wolastoqey Nation may prosecute: (1) its claim for a declaration of Aboriginal title over the ungranted Crown lands identified in Schedule “C” to the Statement of Claim (30,446 parcels); and (2) its claim for a finding of Aboriginal title in respect of the privately owned lands in Schedule “A”, including the appellants’ lands in Schedule “B”, for the purpose of substantiating its claim for damages and compensation against the Crown for its alleged wrongs, as particularized in the Statement of Claim. That claim against the Crown pertains to, not only the Crown lands identified in Schedule “C”, but also the appellants’ lands in Schedule “B”, and the other privately owned lands in Schedule “A”.