The Supreme Court of Canada on Thursday declined to hear the appeal of a New Brunswick Aboriginal title case that conflicts with the recent Cowichan Tribes decision, potentially signalling support for the supremacy of private, fee simple title and aiding an appeal of the B.C. judgment.
“I think it gives us a clear path to an appeal here in B.C.,” said Niki Sharma, B.C.’s attorney general. “We’re continuing to pursue that legal option.”
In the New Brunswick case, a three-judge appeals court panel sided with timber companies over the Wolastoqey Nation, finding that Aboriginal title cannot be declared over private property.
The judgment clarifies that First Nations can seek financial compensation with respect to privately owned lands with a “finding” of Aboriginal title, but do not have a right to a “declaration” of title, which would signify ownership.
In the reasons for judgment, New Brunswick Justice J. Ernest Drapeau writes that he arrived at this decision in part out of a duty to “open a clearer path to peaceful and respectful reconciliation between Aboriginal and non-Aboriginal Canadians.”
In the Cowichan Tribes claim, B.C. Supreme Court Justice Barbara Young declares Aboriginal title and private, fee simple title coexist on the same lots in an area of Richmond once used as a seasonal fishing village by the First Nation, with Aboriginal title being the “prior, senior right.”
She does not say this means the land must be handed over, but rather directs the province to reconcile the claim through “good faith” negotiation.
The B.C. government — along with other parties, including the federal government — has filed for the B.C. Court of Appeal to take up the case. One of the landowners is also trying to reopen the case in an application before the court earlier this week, and Justice Young must settle that issue before an appeal can proceed.
Sharma says the same legal issues are at play in both cases.
“I think that bodes well for our arguments and the appeals that we’re seeking,” she said.
But that is not a universally agreed-upon assessment. B.C. Greens MLA Rob Botterell, who worked on Indigenous rights cases as a lawyer, points out that a different set of facts is at play in each case.
“It’s not clear that a decision in New Brunswick would apply in B.C. in the same way,” he said.
B.C. government House leader Mike Farnworth thinks it will. He reckons the Supreme Court of Canada’s decision not to hear the New Brunswick case will aid his government’s appeal effort and have a “significant impact” on the Cowichan case.
“We’ve been very clear that private property is sacrosanct, and today’s decision out of New Brunswick helps to confirm that,” he said.