Authors
Partner, Regulatory, Indigenous and Environmental, Toronto
Associate, Disputes, Toronto
Associate, Disputes, Toronto
In 2021, six Wolastoqey Nations[1] (the Wolastoqey Nations) filed a claim seeking a declaration of Aboriginal title over a significant portion of land in New Brunswick and other consequential relief against the province of New Brunswick, the Attorney General of Canada and several private companies and entities (the industrial defendants).
In 2024, New Brunswick and the industrial defendants brought separate pleadings motions. On November 12, 2024, in Wolastoqey Nations v. New Brunswick and Canada, et.al., 2024 NBKB 203, the Court of King’s Bench of New Brunswick permitted the Wolastoqey Nations’ claim for declaratory relief against the province and Canada to proceed, but struck the pleadings against the industrial defendants.
The Court made several important findings on the motions to strike. The Court recognized that the industrial defendants are “innocents” in the matter because they have no direct legal connection or relationship with the plaintiffs. However, the Court held that Aboriginal title could be declared over lands privately owned by these and other individuals because the Crown’s original title to the land, which it granted to private owners, was burdened by Aboriginal title. Although the outcome of the Wolastoqey Nations’ claim remains to be determined, the Court also acknowledged the possibility of a court ordering the Crown to expropriate lands from private ownership as a remedy.
Background
In 2021, the Wolastoqey Nations filed a claim seeking a declaration of Aboriginal title over more than 50% of the land in New Brunswick, encompassing 283,204 separate parcels of land, including land owned by the industrial defendants and other private entities and corporate entities. The Wolastoqey Nations sought a declaration as against the province of New Brunswick, the Attorney General of Canada and the industrial defendants. The Wolastoqey Nations argued that their title to the traditional lands has never been extinguished through surrender or legislation and survives today.
New Brunswick and the industrial defendants brought separate motions to strike the pleadings. Among other arguments, New Brunswick argued that the pleadings, as worded, would cause the court to exceed its jurisdiction by making a declaration of Aboriginal title over fee simple lands owned by “Strangers to the Claim”, and thus argued that the pleadings should be struck on this basis. The industrial defendants argued that the declaration and relief could only come through the Crown and therefore the pleadings against them should be struck because they had no prospect of success directly against them.
The Court’s decision
Claims against the industrial defendants
The Court struck the pleadings against the industrial defendants. The Court emphasized that Aboriginal rights (including Aboriginal title), like Charter rights, are held against the government — or, in other words, the Crown. The Court acknowledged that a declaration of Aboriginal title impacts everyone: Crown, non-Crown and private interests. However, the Court emphasized that the legal declaration itself is against the Crown only, not against private parties, as they hold no constitutional status as against the Aboriginal group. As such, the Court held that this was not the basis upon which to plead that private parties should be included in actions between two constitutional entities such as the Crown and Aboriginal groups.
Applying these principles to this case, the Court concluded that the pleadings against the private party industrial defendants did not establish a reasonable cause of action and dismissed the claim against them.
The Wolastoqey Nations acknowledged that no private law cause of action applied against the industrial defendants, and that there was no claim against the industrial defendants in contract, negligence or tort. The Court found that the legal relationship at issue in this claim was between the Crown and the Wolastoqey Nations, not between the industrial defendants and the Wolastoqey Nations. The industrial defendants are only involved in the litigation because they hold fee simple title to land granted by the Crown which may be burdened with Aboriginal title.
The Court held that striking the pleadings involving private parties in a constitutional claim between the Crown and an Aboriginal group did not preclude the Aboriginal group from potentially reclaiming land owned by private individuals. As the Crown holds the ultimate title to the land, if a court finds that repossession of land is the appropriate remedy flowing from a declaratory judgment (and should reconciliation fail), the Crown may be directed or ordered to use its expropriation powers and may be subject to a claim by the fee simple holders for compensation arising from any such expropriation.
The Court also acknowledged that there may be an argument for intervention status by some or all of the industrial defendants at some point in the litigation, but explained that this is a distinct status from being forced to participate in the claim as defendants.
New Brunswick’s motion and references to ‘Strangers to the Claim’
With respect to New Brunswick’s pleadings motion, the Court agreed that references to “Strangers to the Claim” ought to be struck from the pleadings but disagreed that the Court did not have jurisdiction to issue a declaration of Aboriginal title in relation to land already owned in fee simple. The Court permitted the litigation to proceed with a focus on the Crown’s role in addressing the Wolastoqey Nations’ claims for Aboriginal title.
The Court found that there was no relevance or legal basis for any reference to “Strangers to the Claim” in the pleadings. The Court characterized both parties’ use of references to strangers to make “politically charged commentary outside the courtroom”. The Court concluded that there was no relevance or basis for any reference to strangers in the pleadings, as declaration was sought or could be sought against the strangers, for the same reasons why a declaration could not be sought against the industrial defendants.
New Brunswick’s intention to enter into negotiations
The Court discussed the role of negotiation and reconciliation in Aboriginal rights litigation at length, stating that once a conflict is factually and legally determined in Aboriginal rights litigation, a reconciliation process is triggered as part of the declaration and relief phase, which involves polycentric considerations on the part of the Crown.
Perhaps heeding this approach, less than a week after the Court released its decision, the New Brunswick Office of the Attorney General directed lawyers representing the provincial government to collaborate with opposing counsel and obtain agreement to suspend all litigation to allow the Crown and First Nations to work towards a negotiated settlement of all claims. No settlement has been publicly announced as of the publication time of this article.
[1] The Wolastoqey Nations include the Wolastoqey Nation at Welamukotuk (Oromocto First Nation), Sitansisk (Saint Mary’s First Nation), Pilick (Kingsclear First Nation), Wotstak (Woodstock First Nation), Neqotkuk (Tobique First Nation) and Matawaskiye (Madawaska Maliseet First Nation).
