Can Aboriginal Title Be Declared In Respect Of Privately-held Lands? Recent Cases Reach Opposing Conclusions

Two recent decisions from the courts of British Columbia and New Brunswick have addressed the relationship between Aboriginal title and private property rights. In Cowichan Tribes v. Canada (Attorney General), the Supreme Court of British Columbia granted a declaration of Aboriginal title, which included lands held in fee simple by third parties¹. In contrast, in JD Irving Limited et al. v. Wolastoqey Nation, the New Brunswick Court of Appeal held that such a declaration could not extend to privately-owned lands². While these remedial declarations are discretionary, the apparent conflict in judicial approaches raises questions about the future approach to Aboriginal title claims in respect of private property.