The Supreme Court of Canada has refused to hear an appeal of a ruling that prevents the Wolastoqey Nation from getting back privately held land in their massive title claim for more than half of New Brunswick’s territory.
As is tradition, the nation’s highest court did not provide reasons on Thursday for not granting leave to appeal in the case.
Joseph Robertson, a retired justice of the Court of Appeal of New Brunswick, said people shouldn’t assume that the dismissal meant the Supreme Court agreed with the lower court’s ruling.
But he said there were at least two plausible reasons why the top court might have dismissed the application.
The retired judge pointed out that neither the province nor Ottawa were parties to the pivotal case.
“If leave had been granted, who would argue on behalf of private landowners in New Brunswick?” he wrote in an email to Brunswick News.
“That is to say, who would argue on behalf of all those who were not parties to the underlying action? As there is no obvious answer to that question, the Supreme Court of Canada has sidestepped a fundamental issue, and wisely so.
“Frankly, it would be embarrassing to have a case involving constitutionally entrenched Aboriginal rights being heard in the Supreme Court of Canada without the mandatory participation of the provincial and federal governments.”
Furthermore, Robertson said, by allowing the decision of the Court of Appeal to stand, there was no disruption to the real estate markets in New Brunswick, unlike last year’s Cowichan decision in British Columbia, where the trial judge held that a declaration of Aboriginal title may be granted over privately owned lands.
That case sent shock waves throughout British Columbia, with Premier David Eby vowing to appeal it to his province’s highest court.
“In short, the Supreme Court’s dismissal of the leave application preserves the status quo when it comes to private landowners in our province,” said Robertson, who still calls Fredericton home.
The Indigenous chiefs who represent the six Wolastoqey communities that dot the St. John River Valley expressed disappointment Thursday but vowed to persevere.
“The fight for our homeland will continue,” said Chief Patricia Bernard of Madawaska, in a news release.
The Wolastoqey Nation’s title claim was filed in 2020 and substantially amended in 2021 to include large, private landowners, most of them big timber firms, seeking legal recognition of Aboriginal title to the traditional, ancestral homelands of the Wolastoqey on New Brunswick’s western side.
Most of the Crown, or public land, is gone in this area, and the First Nations chiefs want the land back that they said was stolen and handed out to European settlers, violating treaties signed between the British Crown and Indigenous leaders some 300 years ago.
“Our ancestors never surrendered our lands and waters,” Chief Bernard said. “The Peace and Friendship Treaties signed with the British Crown in the 1700s were treaties of peace and alliance – not land surrender or cession. Our title has not been extinguished. Being denied leave does not mean that the Supreme Court of Canada agrees with the New Brunswick Court of Appeal decision.”
A 2024 lower court ruling confirmed that Aboriginal title could exist on privately held land but said it would be the responsibility of Ottawa and the province to return some private land by negotiated agreements or, if negotiations fail, court orders.
The timber companies, including Acadian Timber and J.D. Irving fought hard to overturn the decision.
The New Brunswick Court of Appeal ruled in the firms’ favour, stating that declarations of Aboriginal title can only be issued in relation to Crown land, limiting remedies on private industrial land to financial compensation or damages from the government.
“Canadians expect that the Supreme Court will eventually need to clarify the law on whether Aboriginal title can be recognized in relation to privately held lands,” said Bernard, who is also a lawyer.
“Until this clarification, the Wolastoqey Nation must be consulted on all Crown decisions impacting lands and waters within its territory. We will continue to advance our claim, assert our rights and title, and pursue all available paths open to us. We will announce our plans for the next steps of our claim when information is ready to share.”
The Supreme Court of Canada only hears 50 to 60 cases a year, a small number that can be frustrating for applicants seeking appeals, said Nicole O’Byrne, a law professor at the University of New Brunswick.
By John Chilibeck, Local Journalism Initiative Reporter
Original Published on May 29, 2026 at 11:20
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