Laura Bowman and Tennile Sunday
Canada is facing a major question about land and history: Can Indigenous land rights and private property exist on the same land and if so, what remedies are available and who can participate in those cases? Two recent court battles — one from the Wolastoqey Nation in New Brunswick and one from the Cowichan Tribes in British Columbia — are pushing that question to the front of national debate.
In Delgamuukw the Supreme Court of Canada said that Aboriginal title is an exclusive right to land. Fee-simple land rights, under land titles legislation, are also supposed to be secure, “indefeasible” and exclusive. However, these fee-simple rights have been granted on unsurrendered Aboriginal title lands. The big legal question is whether both rights can co-exist in some way, and if so how. If they can, can Indigenous people with Aboriginal title enforce the exclusivity of their title in some way, including potentially through orders to return the land?
In the Wolastoqey case, an Indigenous nation asked the court to recognize Aboriginal title over a large area of New Brunswick. Their claim covered Crown land, land owned by big forestry companies, and other private land. The key remedies were sought only against the Crown and the big forestry companies, not people’s private homes. They wanted the court to say that Aboriginal title still exists and, in some cases, to set aside old Crown grants now owned by specific forestry landowners. Those landowners participated in the initial action.
The lower court in New Brunswick removed the forestry landowners from the claim at their request and refused to allow a declaration of Aboriginal title against them. The New Brunswick Court of Appeal agreed, and took it a step further and refused to allow relief that would set aside the Crown grants.
The Court of Appeal ruled that the Wolastoqey could try to prove Aboriginal title as a fact on fee-simple lands, but they couldn’t get a declaration of title over private land. The reason was partly about fairness: the private landowners weren’t part of the case anymore, so the court felt that it couldn’t make a binding order about their land. The court also said Aboriginal title includes a right to exclusive use, which can’t sit on top of someone else’s fee simple ownership that also provides exclusivity. Because of this, following the Court of Appeal’s ruling, the Wolastoqey could still go to trial, but the remedy for private land would be limited to financial compensation from the Crown, not the return of land, unless the Crown takes steps to obtain the land from fee simple holders first. The Nation sought leave from the Supreme Court of Canada to appeal this decision.
However, about a week ago, the Supreme Court of Canada refused to hear the appeal. Some media outlets incorrectly reported that the Supreme Court had given the final word on whether Aboriginal title could coexist with fee-simple lands. It didn’t. The Supreme Court does not give reasons in leave decisions. The effect of refusing leave is that the decision of the New Brunswick Court of Appeal on these issues stands for now, but is only binding in New Brunswick. The Supreme Court of Canada also denied leave from a recent Ontario Court of Appeal decision that did restore private lands to an Indigenous Nation.
The B.C Supreme Court recently considered similar issues in the Cowichan Tribes case. This claim was for less land, and once again, some fee-simple landowners were named and relief was sought in respect of declarations and the validity of the Crown grants their titles relied on. The action continued with the fee-simple owners included. The BC Supreme Court found that the Crown had promised to set aside the land as a reserve, then broke that promise. The B.C. Supreme Court declared that Aboriginal title existed and said the Crown’s grants to the landowners were defective. Private land rights weren’t quashed, but the governments were ordered to negotiate with Cowichan Tribes.
What both cases confirm is that fee-simple titles do not erase Aboriginal title, but the remedies for the Crown’s dishonourable conduct of granting private lands to third parties without obtaining a surrender of Aboriginal title first remain in a state of evolution. It is uncontroversial that the Crown may owe significant compensation where it has granted Aboriginal title lands to private parties.
However, for Indigenous nations to obtain relief in the form of return of fee-simple lands requires the Courts to develop new procedures and to reconcile competing legal rights. This exercise is challenging and uncomfortable for some. The Courts will ultimately have to address whether lands can be restored to Indigenous nations with a requirement for Crown compensation to the third-party owners, and if so, under what circumstances.
The New Brunswick Court of Appeal favours a process that is just between the Crown and Indigenous [1]groups, in which private owners do not participate in the Court proceedings and it is up to the Indigenous people and the Crown to negotiate the final remedies. In BC, the Supreme Court in Cowichan Tribes favoured an approach that includes private owners and in which the validity of the original grants to them can be addressed, particularly where the grants were issued under unsavoury circumstances. Cowichan Tribes is subject to a complex appeal and rehearing request process right now, and may well make its way to the Supreme Court of Canada in the coming years.
This isn’t the end of the story of how Courts will resolve competing interests in land when considering Indigenous claims. With competing approaches in different provinces, the law is in an evolving state, and the Supreme Court has not yet given the last word.
[1] In this context “Indigenous” refers to First Nations, Métis, and Inuit peoples.
