New Brunswick Court Of Appeal Finds Aboriginal Title Cannot Co-Exist With Fee Simple Title

On December 11, 2025, the New Brunswick Court of Appeal issued a decision in the context of an Aboriginal title claim on the issue of whether Aboriginal title can co-exist with fee simple title: J.D. Irving, Limited et al. v. Wolastoqey Nation, 2025 NBCA 129. While the Court found that it could make a finding of Aboriginal title, leading to compensation for the Indigenous nation, a declaration granting Aboriginal title to privately-owned land was not an available remedy. Aboriginal title could be declared over Crown land, however.

This result is inconsistent with the BC Supreme Court's declaration of Aboriginal title over privately-held land in the Cowichan Tribes case (2025 BCSC 1490).