CANADA—The Supreme Court of Canada has chosen not to speak.
And in that silence, one of the most consequential legal questions facing the country remains unanswered: can Aboriginal title ultimately prevail over privately owned land?
On May 28, Canada’s highest court declined to hear an appeal arising from a landmark New Brunswick case involving the Wolastoqey First Nations. The decision leaves standing a ruling from the New Brunswick Court of Appeal, but offers no guidance on an issue that is increasingly finding its way into courtrooms across the country.
As is customary, the Supreme Court provided no reasons for refusing leave to appeal.
The case traces back to 2021, when the Wolastoqey First Nations launched a legal action seeking a declaration of Aboriginal title over a vast swath of western New Brunswick. Included within the claim were lands owned by seven private companies.
In 2024, those companies successfully argued that the claim against them should be dismissed. A judge agreed, removing them as defendants from the proceeding.
But the victory came with an unexpected twist.
Although the companies were released from the lawsuit, the judge concluded that the broader claim could continue against the Crown. In her ruling, she suggested that if Aboriginal title were eventually established, the government could potentially be required to use its powers of expropriation to take privately owned lands and transfer them to the First Nation.
The ruling raised alarm among property owners because it appeared to leave open the possibility that privately held land could become subject to an Aboriginal title claim, even after the owners themselves had been removed from the case and could no longer participate in defending their interests.
The companies appealed.
In a unanimous decision, the New Brunswick Court of Appeal rejected that approach. The court found that Aboriginal title could not be declared over private land if the owners were not parties to the action.
Once the companies were removed from the lawsuit, the court ruled, the lower court no longer had jurisdiction to issue a declaration affecting their lands.
The appeal court emphasized a basic principle of justice: parties whose interests may be affected must have an opportunity to be heard.
The judges did leave one avenue open. The Wolastoqey First Nations could still seek a judicial finding that Aboriginal title exists over the lands in question. Such a finding could potentially support claims for compensation against the Crown, but not ownership or transfer of the land itself.
The Wolastoqey sought to take the matter to the Supreme Court of Canada. The court declined.
That refusal has generated significant discussion, particularly because it arrives amid ongoing litigation elsewhere in the country.
Among the most closely watched cases is one involving the Cowichan Tribes in British Columbia.
Last year, the B.C. Supreme Court ruled that the Cowichan had established Aboriginal title over approximately 5.7 square kilometres of land along the Fraser River in Richmond. In its reasoning, the court described Aboriginal title as “senior and prior” to fee simple ownership—the legal foundation upon which most private property rights in Canada rest.
That decision is currently under appeal by both the provincial and federal governments, along with other First Nations.
Federal officials have indicated that the Supreme Court’s refusal to hear the New Brunswick appeal will inform arguments moving forward, including those in the Cowichan case. Crown-Indigenous Relations has stated that while First Nations may seek compensation for the loss of traditional territories, “private property rights are fundamental.”
British Columbia Attorney General Niki Sharma suggested the Supreme Court’s decision strengthens the province’s position.
Speaking to reporters, Ms. Sharma noted that the legal arguments advanced by British Columbia closely mirror the conclusions reached by the New Brunswick Court of Appeal.
“We think it is very interesting that the Supreme Court of Canada decided not to hear that case, so therefore leave that law in place,” she said.
“I think that it bodes well for our legal issues here and what we are trying to sort out and our arguments that we made before the courts here.”
She added that the decision appears to provide a clearer path for the province’s appeal efforts.
Yet legal observers caution against reading too much into the Supreme Court’s refusal.
A denial of leave is not an endorsement of the lower court’s reasoning. It is not a judgment on the merits. It establishes no national precedent and does not bind courts in other provinces.
The Supreme Court may have declined the case for any number of reasons, including the procedural complexity created by the removal of the private landowners from the litigation.
What remains undeniable is the uncertainty.
No Canadian court has yet ordered privately owned land transferred to an Indigenous nation through an Aboriginal title declaration. At the same time, courts continue to grapple with the relationship between Aboriginal title—recognized and affirmed under Section 35 of the Constitution—and private property interests that have long been treated as secure.
For Indigenous nations pursuing recognition of their historic territories, the question carries profound implications for reconciliation, restitution and justice.
For governments, landowners and communities, it raises equally significant questions about certainty, compensation and the limits of property rights.
For now, those questions remain unanswered.
The Supreme Court had an opportunity to clarify the relationship between Aboriginal title and private property. Instead, it chose not to weigh in.
By Jacqueline St.Pierre, Local Journalism Initiative Reporter
Original Published on Jun 10, 2026 at 10:16
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