Case information

Aboriginal law — Aboriginal title — Land claims — Property — Real property — Fee simple — Civil procedure — Pleadings — Parties — Applicants seeking declaration of Aboriginal title over Crown lands and private lands held in fee simple — Motion judge striking certain pleadings and removing fee simple title-holders as parties to litigation, but allowing claim for Aboriginal title over fee-simple lands to proceed — Court of Appeal setting aside motion judge’s order to the extent that it allowed claim for Aboriginal title over privately held lands to proceed — Court of Appeal determining that declaration of Aboriginal title only available in respect of Crown lands but that applicants could pursue finding of Aboriginal title over privately owned lands

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The applicants are six Wolastoqey First Nations in New Brunswick (hereafter, “Wolastoqey”). In 2020, Wolastoqey commenced an action seeking a declaration of Aboriginal title over their traditional territory within the province, as well as consequential relief. The area claimed consists of land held in fee simple by private individuals and corporate entities, as well as land held by the Crown.

Before any statements of defence had been filed, a number of defendants brought motions for determination of questions of law and to strike certain pleadings.

The motions judge struck some pleadings and granted judgment in favour of a number of defendants. In the result, certain defendants were no longer parties to the litigation, but the claim for a declaration of Aboriginal title over their fee simple properties was allowed to proceed.

The Court of Appeal of New Brunswick allowed the appeal and set aside the motion judge’s order, to the extent that it allowed the claim for a declaration of Aboriginal title over privately held lands to proceed. The Court of Appeal held that Wolastoqey was entitled to proceed with a claim for a declaration of Aboriginal title in respect of Crown lands, but could seek a finding of Aboriginal title over privately-owned lands for the purpose of substantiating a claim for damages and compensation against the Crown.