Supreme Court of Canada declines to hear Wolastoqey Nation appeal addressing Aboriginal title and private property rights

On May 28, 2026, the Supreme Court of Canada dismissed an application for leave to appeal from the New Brunswick Court of Appeal in JD Irving Limited et al. v. Wolastoqey Nation. The Court of Appeal had held that a declaration of Aboriginal title is not available for privately-held lands¹. As we discussed in our previous bulletin, Wolastoqey and Cowichan Tribes v. Canada (Attorney General) are two recent decisions analyzing whether a declaration of Aboriginal title may be sought for privately-held lands. The two courts reached opposite conclusions on this issue. With leave denied in Wolastoqey, the decision of the Court of Appeal becomes final in New Brunswick.

What you need to know

• The Court of Appeal held that while a declaration of Aboriginal title—which could require the return of lands—is available in respect of Crown lands, it is not available for privately-held lands. The Court stated that an Aboriginal title declaration for privately-held lands would not advance reconciliation.
• Instead, the Court of Appeal held that Wolastoqey Nation may seek a “finding” of Aboriginal title in respect of privately-held lands. That finding may ground a claim for compensation against the Crown (i.e., not private landowners), but not the return of privately-held lands.
• The decision in Wolastoqey can be contrasted with the recent decision of the British Columbia Supreme Court in Cowichan Tribes v. Canada (Attorney General)². In that case, the Court issued Aboriginal title declarations over an area of Richmond, BC, which includes both Crown lands and privately-held lands. The Court ordered British Columbia and Cowichan Tribes to negotiate the reconciliation of the conflict between Aboriginal title and private property rights. This was the first time Aboriginal title was declared for privately-held lands.
• All parties to the Cowichan Tribes decision are appealing. Private landowners have also filed an application to reopen the trial decision on the basis that they should have been parties. That application must be decided before the appeals proceed. BC and Cowichan announced that they have started negotiations³. Depending on the outcome of those processes, Cowichan Tribes may find its way to the Supreme Court.
• Uncertainty in the law will remain until the British Columbia Court of Appeal and potentially the Supreme Court of Canada address the relationship between Aboriginal title and private property rights.