Supreme Court of Canada Denies Leave in Wolastoqey Nation’s Aboriginal Title Claim

Overview

On May 28, 2026, the Supreme Court of Canada (SCC) released its decision (Leave Decision) denying the Wolastoqey Nation’s application for leave to appeal (Leave Application)¹ from the New Brunswick Court of Appeal’s decision in J.D. Irving, Limited et al. v. Wolastoqey Nation, 2025 NBCA 129 (Wolastoqey Appeal Decision). As is customary on leave applications, the SCC did not provide any accompanying reasons for the Leave Decision.

For governments, industry, lenders, and private landowners in New Brunswick, the practical consequence of the Leave Decision is substantial. The most sweeping Aboriginal title claim in Atlantic Canada will now proceed without private landowners as defendants and without the possibility of a declaration of Aboriginal title over privately-owned fee simple lands. The Leave Decision also means that the Wolastoqey Appeal Decision stands as the leading appellate authority supporting the proposition that reconciliation in the Aboriginal title context is achieved through compensation from the Crown rather than through declarations affecting fee simple ownership.

While the SCC’s refusal to grant leave does not necessarily constitute endorsement of the lower court’s reasoning, it does mean that the SCC concluded that the Leave Application did not raise issues of sufficient national or public importance to warrant the intervention of Canada’s highest court. Denial of the Leave Application also means that the Wolastoqey Appeal Decision remains binding in New Brunswick, with significant implications for Aboriginal title claims across the country.

It is notable that the SCC denied the Leave Application in the context of an appellate decision that:

1. upheld the lower court’s conversion of motions to strike into motions for summary judgment, a determination made on the basis that “no amendment to the [Wolastoqey Nation’s claim] could provide grounds for a declaration of Aboriginal title, at least ‘directly’” against the group of private defendants (Industrial Defendants² or IDs);
2. concluded there was no reviewable error in the lower court’s determination that there was no “requisite direct ‘legal relationship or interest’ between Wolastoqey Nation and the [Industrial Defendants],” and therefore the Wolastoqey Nation’s claim against the Industrial Defendants did not have a reasonable prospect of success³;
3. overturned the lower court’s refusal to strike the declaration of Aboriginal title over the Industrial Defendants’ lands, against which the Wolastoqey Nation sought various relief ancillary relief, including orders of ejectment⁴;
4. endorsed the view that “remedial justice favours compensation from the Crown over dispossession of private fee simple owners in all cases”⁵;
5. restricted the territory over which the Wolastoqey Nation is permitted to seek a declaration of Aboriginal title to ungranted Crown land only⁶; and
6. in respect of private property within the claim area, restricted the Wolastoqey Nation’s claim to a “finding of Aboriginal title in respect of the privately owned lands … for the purpose of substantiating its claim for damages and compensation against the Crown for its alleged wrongs.”⁷

A review of the Wolastoqey Nation’s claim itself, as well as the lower court decision at issue, provides important context that it is missing from much of the commentary surrounding the Leave Decision.

The Lower Court Decisions

The Wolastoqey Nation’s Aboriginal title claim (the Wolastoqey Claim) covers approximately half of present-day New Brunswick, including extensive areas of privately-owned fee simple land. The Industrial Defendants were named as defendants to this claim and, as their lands (listed in Schedule “B” to the claim), the Wolastoqey Nation sought (i) a declaration of Aboriginal title; (ii) certificates of pending litigation; and (iii) an Order revoking the Crown grants (i.e., scire facias) or, in the alternative, an order of ejectment and recovery of land.

In 2023 and 2024, the Industrial Defendants brought two sets of motions to strike the relief sought against them and their lands. The first set of motions, in relation to the Wolastoqey Nation’s claim for certificates of pending litigation, was heard in December 2023, with reasons released on February 1, 2024. In the result, the Motions Judge agreed with the Industrial Defendants, striking this relief on the basis that “Aboriginal title is not an ‘interest in land’ such that [Certificates of Pending Litigation] can be ‘registered’ under the relevant legislation.”⁸

In the second set of motions, heard over a two-week period between March 25-28 and April 2-5, 2024, the Industrial Defendants sought (among other things) the following relief:

• an order striking the Wolastoqey Claim against them on the basis that the Wolastoqey Claim failed to disclose a reasonable cause of action;
• an order striking the Wolastoqey Claim against them on the basis that it was scandalous, frivolous, or vexations and/or an abuse of the Court’s processes; and
• on a finding that the Wolastoqey Claim be struck against them, an order converting the motions to motions for judgment.⁹

In the result, the Motions Judge struck the Wolastoqey Claim as against the Industrial Defendants, converted the motions into motions for summary judgments, and issued judgment in their favour. In reaching this result – which was upheld on appeal – the Motions Judge stated the following:

• “I state that the sought after declaration of Aboriginal title with consequential relief directly against the private IDs has no reasonable prospect of success”¹⁰;
• “The IDs have no legal relationship and/or interest, in the context of this Aboriginal rights litigation, to oppose the declaration sought by the [Wolastoqey Nation]”¹¹;
• “With the greatest respect to all counsel for the Plaintiffs, who, like counsel for the Moving ID Defendants and for the Crown, have demonstrated great legal skill in this matter and who are tasked with the tremendous responsibility of getting the pleadings right, I find the inclusion of the IDs, and the related pleadings in the Claim, to be misconceived”¹²;
• “The Plaintiffs do not dispute, and candidly accept, that no private law cause of action applies against any of the IDs. There is no claim against the IDs in contract, negligence, or tort. Indeed, the Plaintiffs … recognized and referred to the IDs as “innocents” in this matter”¹³;
• “The legal relationship at issue in this Claim for a declaration, based on the pleadings, is that between the Crown and the Plaintiffs, not between the IDs and the Plaintiffs. This arises from the unique – sui generis – nature of Aboriginal title and the sui generis relationship between the Crown and the Plaintiffs”¹⁴;
• citing Tsilhqot’in, “my rationale for this conclusion, suffice it to say briefly at this time … is because Part II Aboriginal rights, like Part 1 Charter rights, are held against the government … in other words, the Crown”¹⁵;
• “It is simply untenable at law to draw private party litigants, against whom no private law cause of action has been alleged, and no direct legal relationship established, into a constitutional challenge against the Crown”¹⁶;
• “Aboriginal title, if declared, is declared as against the Crown. It establishes the legal relationship, interests, and state of affairs as between the Crown and the Aboriginal group, not as between an Aboriginal group and private parties. I acknowledge such a declaration impacts everyone, Crown and non-Crown, but the legal declaration itself is against the Crown only. It is not declared against private parties as they hold no constitutional status as against the Aboriginal group”¹⁷;
• “I find that this case discloses the very problem of including private parties in Aboriginal title litigation. It mistakenly allows for the pitting of private fee simple title holders directly against Aboriginal title holders and contorts legal principles in doing so”¹⁸; and
• “As the pleadings cannot be amended to establish a legal relationship or interest such that the IDs are proper parties to oppose the Claim … I exercise my discretion to grant judgment to the Moving ID Defendants (which includes by implication all IDs).”¹⁹

Despite granting summary judgment in favour of the Industrial Defendants, the Motions Judge declined to strike Schedule “A” (map of the Wolastoqey Nation’s Claim Area) and Schedule “B” (which set out the parcel identifiers of lands owned by the Industrial Defendants). In refusing to strike these Schedules, the Motions Judge concluded that, although no relief could be sought against the Industrial Defendants directly, relief could still be sought as against their lands.²⁰

Despite having succeeded in obtaining summary judgment, the Industrial Defendants appealed on the basis that they had effectively been deprived of their right to participate in litigation implicating their property rights.

The NBCA Decision – A Remedial Framework

On appeal, the Industrial Defendants essentially requested one of two outcomes: either (i) summary judgment be upheld, and the relief sought against their property (including the declaration of Aboriginal title) be struck; or, alternatively (ii) if the relief sought against their lands was not struck, the entire Motion Decision be set aside to ensure they had full rights of participation as defendants.²¹

After reviewing the submissions of all parties, the NBCA held that the appeal turned on a single question – whether it was “plain and obvious that the order under appeal – greenlighting the prosecution against the Crown of Wolastoqey Nation’s claim for a declaration of Aboriginal title with respect to the [Industrial Defendants’] lands – is unsustainable?”²²

In providing an affirmative answer to this question, the NBCA concluded that even if “Aboriginal title has been established, it does not automatically follow that a judicial declaration of Aboriginal title will issue” because courts are vested with discretion to issue – or refuse to issue – them.²³ The NBCA further held that such a declaration may be exercised only after all interested parties have been given an opportunity to be heard,²⁴ and that once summary judgment had been issued in favour of the Industrial Defendants, “there was no basis in law for a declaration of Aboriginal title against the [Industrial Defendants], and removing them as parties to the action, the Court of King’s Bench relinquished jurisdiction to make any such declaration against the Crown over the [Industrial Defendants’] lands.”²⁵

The NBCA went on to hold that:

• the net effect of the Motion Decision was a depravation of the Industrial Defendants’ “right to be heard”²⁶;
• the trial court lacks jurisdiction to grant a declaration of Aboriginal title, over the Industrial Defendants’ lands, as against the Crown²⁷; and
• providing the Industrial Defendants with an opportunity to intervene, as proposed by the Motions Judge, would only take place after a declaration of Aboriginal title has been issued and, by that point, would be too late for meaningful opposition.²⁸

In the result, the NBCA upheld the summary judgment order and reversed the Motions Judge’s “decision to let stand: (1) the claim against the Crown for a declaration of Aboriginal title over the [Industrial Defendants’] lands; and (2) all relief consequential to any such declaration.”²⁹ With respect to remedy, the NBCA held that “remedial justice favours compensation from the Crown over dispossession of private fee simple owners in all cases,”³⁰ and concluded that the Wolastoqey Nation could pursue two separate remedies depending on the land at issue:

• as against ungranted Crown Land, the NBCA held that the Wolastoqey could proceed with its claim for a declaration of Aboriginal title;
• as against privately owned lands within the Claim Area (reflected in both Schedules “A” and “B” to the Wolastoqey Claim), the Wolastoqey Nation could seek a finding of Aboriginal title for the purposes of substantiating its claim for damages and compensation against the Crown for alleged wrongs.³¹

Notably, the Wolastoqey Nation did not cross-appeal from the Motions Judge’s summary judgment order. Instead, the Wolastoqey Nation filed a Notice of Contention, arguing that should the Industrial Defendants be added back into the claim as defendants the NBCA “must set aside the decision of the motions judge” – a result that would “require overturning the determination that a declaration of Aboriginal title can only be sought against the Crown.”³² The NBCA rejected this argument, concluding that the Notice of Contention provided “no avenue for relief, because: (1) the motions judge’s striking order [was] correct in law … [and] it follows that the striking order is not reversible; and (2) setting aside the order … does not open the door to the application of…the Notice of Contention Rule, because Wolastoqey Nation is not entitled to ‘different relief than that given’ by the motions judge.”³³

Conclusion

Taken together, both the Wolastoqey Motion Decision and the Wolastoqey Appeal Decision represent one of the most significant judicial examinations of the relationship and intersection between Aboriginal title and fee simple ownership to date in Canada.

By denying the Leave Application, the SCC left intact a remedial framework in which: (i) private parties and private landowners were held to not be proper parties to Aboriginal title claims; and (ii) as against privately owned lands, only a finding of Aboriginal title (as opposed to a declaration) could be made for the purposes of grounding compensatory remedies. Perhaps most importantly, however, the SCC leaves this remedial framework untouched despite Cowichan – in which the BCSC reached a completely different result on the interplay between Aboriginal title and fee simple lands and the remedy available (which is discussed in greater detail here) – looming on the horizon.

_____________________________

¹ Wolastoqey Nation at Welamukotuk (Oromocto First Nation), et al v JD Irving Limited et al, 2026 CanLII 50180 (SCC).
² Wolastoqey Appeal Decision, at para 180.
³ Wolastoqey Appeal Decision, at para 187.
⁴ Wolastoqey Appeal Decision, at para 200.
⁵ Wolastoqey Appeal Decision, at para 202.
⁶ Wolastoqey Appeal Decision, at para 203.
⁷ Wolastoqey Appeal Decision, at para 203.
⁸ Wolastoqey Nations v New Brunswick and Canada et al, 2024 NBKB 21, at para 109.
⁹ Wolastoqey Nations v New Brunswick and Canada, et al, 2024 NBKB 203, at para 51 [Wolastoqey Motion Decision].
¹⁰ Ibid, at para 109 (emphasis in the original).
¹¹ Ibid, at para 109 (emphasis in the original).
¹² Ibid, at para 110 (emphasis added).
¹³ Ibid, at para 111 (emphasis added).
¹⁴ Ibid, at paras 120-121 (emphasis added).
¹⁵ Ibid, at para 122.
¹⁶ Ibid, at para 127 (emphasis in the original).
¹⁷ Ibid, at para 138 (emphasis in the original).
¹⁸ Ibid, at para 165 (emphasis in the original).
¹⁹ Ibid, at para 202.
²⁰ Ibid, paras. 203-204.
²¹ Ibid, at paras 59-65.
²² Ibid, para 177.
²³ Ibid, para 194.
²⁴ Ibid, para 196.
²⁵ Ibid, para 199.
²⁶ Ibid.
²⁷ Ibid.
²⁸ Ibid.
²⁹ Ibid, at para 203.
³⁰ Ibid, at para 202 (emphasis added).
³¹ Ibid, at para 203.
³² Ibid, at para 135.
³³ Ibid, at para 136.