New Brunswick’s highest court has ruled that an Indigenous group cannot seek a declaration of Aboriginal title over privately owned land.

The New Brunswick Court of Appeal found that such a remedy would undermine private property rights and, in turn, reconciliation between Indigenous groups and all Canadians.

The Wolastoqey Nation said it plans to appeal the decision to the Supreme Court of Canada.

In a news release, the Wolastoquey said the New Brunswick court “categorically denied” it the ability to seek a declaration of Aboriginal title over any lands held in fee simple.

“The Wolastoqey Nation is deeply disappointed by this decision, including its mischaracterization of our claim and its interpretation of the decision being appealed from,” said the group.

The appeal court overturned a lower-court decision that would have allowed the Wolastoqey to pursue Aboriginal title claims over privately owned industrial lands as part of a broader claim covering much of western New Brunswick. Writing the court’s decision, Justice Ernest Drapeau said a declaration of Aboriginal title over private land “would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians.”

The court distinguished between a finding that Aboriginal title exists and a declaration of title, emphasizing that only the latter is enforceable. While courts may find that Aboriginal title exists on private land, Drapeau said a declaration cannot co-exist with fee simple ownership.

“A judicial declaration of Aboriginal title would confer those ownership rights, and I am unable to see how those rights can co-exist with the very same rights vested in fee simple owners,” he wrote, adding that “remedial justice favours compensation from the Crown over dispossession of private fee-simple owners in all cases.”

As a result, privately owned lands are excluded from the Wolastoqey’s title claim, although the trial on claims to Crown land and waters may proceed. The court said the province could still be liable for compensation for lands within the claim area that are registered as fee simple.

Large private firms, including J.D. Irving, Acadian Timber and H.J. Crabbe & Sons filed the appeal.

The decision stands in sharp contrast to a recent British Columbia Supreme Court ruling involving the Cowichan Tribes. In that case, Justice Barbara Young declared that Aboriginal title and fee simple title can co-exist, finding that Aboriginal title is “a prior and senior right to land,” even where lands are privately owned. The New Brunswick court rejected that approach outright, concluding that private ownership and a declaration of Aboriginal title are legally incompatible.

David Rosenberg, the lawyer for the Cowichan, told The Globe and Mail that the two courts have reached a “fundamental difference of opinion” between the courts, with a declaration of Aboriginal title over private land available in British Columbia but not in New Brunswick.

Pictured: New Brunswick Justice Building in Fredericton, N.B., which houses the New Brunswick Court of Appeal and other courts.

Photo: New Brunswick Justice Department