Recent developments in Aboriginal title Recent developments in Aboriginal title

Aboriginal title

The doctrine of Aboriginal title recognizes that Indigenous rights to land were not extinguished by the arrival of Europeans in Canada. To establish Aboriginal title, a claimant group must prove

1. sufficient occupation of the land at the time that European sovereignty was asserted
2. continuity of occupation between the present and the time of European sovereignty, if present occupation is being relied on to prove title
3. exclusive historical occupation of the land^[1]

There were three important decisions on the doctrine of Aboriginal title in 2024, illustrating both the difficulty of proving Aboriginal title and the doctrine’s ongoing development.

The Nuchatlaht v. British Columbia

The Nuchatlaht First Nation claim Aboriginal title over 201 square kilometers of Nootka Island, west of Vancouver Island. In 2023, the B.C. Supreme Court dismissed the First Nation’s claim for lack of evidence, but invited another claim over a smaller land area. In April 2024, the Court found that the First Nation had proven their claim to roughly 11 square kilometers of territory.^[2]

There are two noteworthy aspects of the case. First, the First Nation argued that the test for Aboriginal title should be amended to allow claims based on watershed areas. The trial judge accepted that the Nuchatlaht perspective is important but found that the Nuchatlaht First Nation had not demonstrated sufficient occupation over the claim area. Second, at trial, the First Nation relied exclusively on expert evidence, not Indigenous oral history evidence. Given that the plaintiffs were unable to prove most of their land claim, the case demonstrates the utility of oral history evidence and the high evidentiary burden facing Indigenous land claimants.

The Nuchatlaht First Nation have appealed the trial judge’s decision to the B.C. Court of Appeal. We will be watching this case to see whether the Court of Appeal considers amending the test for Aboriginal title to allow claims based on watershed areas.

Wolastoqey Nations v. New Brunswick and Canada, et. al.

In 2021, the six Wolastoqey Nations filed a claim in New Brunswick seeking a declaration of Aboriginal title over more than 50% of the land in New Brunswick. No land treaty was ever settled between the Wolastoqey Nations and the Crown. Most of these lands are held by private owners in fee simple. While the final outcome of the land claim remains to be determined, on November 12, 2024, the Court of King’s Bench dismissed a motion to strike brought by the province and industrial landowners, allowing the case to continue.^[3] We discussed this case at greater length in an earlier blog post.

The Court made two important legal findings. First, it held that private landowners are not proper parties to Aboriginal title claims. The Court reasoned that, while a declaration of title affects everyone, only the Crown holds constitutional obligations in relation to Indigenous groups. As a result, the Court dismissed the Wolastoqey Nations’ actions against the industrial landowners. Second, the Court held that as part of its duty of reconciliation, the Crown may be required to expropriate privately owned lands and return them to Indigenous nations, subject to a potential claim from the fee simple holders for compensation.

The Court’s conclusions on the doctrine of Aboriginal title are significant, as they open the possibility of a court ordering the Crown to expropriate lands from private ownership to comply with its duties to Indigenous peoples. The industrial landowners who were struck from the case have appealed to the New Brunswick Court of Appeal, arguing that the motions judge erred by leaving open a potential future claim against them and by failing to remove their land parcel identifiers from the Wolastoqey Nations’ title claim. We will be watching the progress of that appeal this year.

Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town)

On December 9, 2024, the Ontario Court of Appeal dismissed an appeal from a lower court’s ruling that the reservation of the Chippewas of Saugeen First Nation (Saugeen) had been improperly surveyed in 1855, and that a part of Sauble Beach currently held by private landowners formed part of the reservation.^[4] We discussed this decision in a previous blog post.

One of the most important aspects of the case was the Court’s consideration of the bona fide purchaser for value defence, which traditionally has carried the stronger equity to all other claims to property. In Chippewas, the Court of Appeal held that, where the rights of a bona fide purchaser conflict with an Aboriginal interest in land, especially when the land at issue was set aside as a reserve, the trial judge must weigh the equities and consider the conscionability of upholding the legal rights of the bona fide purchaser in the circumstances.

Considering factors such as the fact that the beach claimed was used only for recreational and commercial purposes; the fact that Saugeen had never acquiesced to private ownership; and the spiritual and cultural importance of the site to Saugeen, the Court held that the Aboriginal interest overrode the interest of the bona fide purchasers.

This case is the first instance where a court has found that Aboriginal title can override private fee simple title. The Town of South Bruce Peninsula has sought leave from the Supreme Court of Canada to appeal this decision. We will monitor the progress of that appeal this year.

Next instalment

In the next instalment, we will discuss important legal developments related to Aboriginal rights. Stay tuned.

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[1] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, at para. 50.

[2] The Nuchatlaht v. British Columbia, 2024 BCSC 624.

[3] Wolastoqey Nations v. New Brunswick and Canada, et. al., 2024 NBKB 203.

[4] Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town), 2024 ONCA 884.