Aboriginal title

Everyone who owns land in New Brunswick holds what is called “fee simple.” This means they have the exclusive right to use and occupy their land, and the right to sell or pass their land to their family through inheritance.

Landowners’ rights are regulated by provincial and local governments to protect the environment, create community standards, and respect the rights of neighboring property owners.

The Government’s power to impact private citizens’ rights to their land is limited by legislation. The Government cannot unreasonably intrude on landowners’ rights and must fairly compensate landowners for actions taken by the Government that deprive landowners of their right to use their land. Citizens of New Brunswick influence how the Government carries out its obligations though their elected representatives. The Wolastoqey claim is unprecedented in nature and the impact it may have on the rights of private landowners to make decisions regarding their land is unclear.

There has only ever been one successful claim of Aboriginal title in Canada. This was a limited claim to an area of land owned by the British Columbia provincial government. No private land was claimed by the First Nations in that case when it was decided by the Supreme Court of Canada.

In this case, the Supreme Court of Canada determined that Aboriginal title gives ownership rights similar to the fee simple rights of private landowners, including:

• the right to decide how the land will be used;
• the right of enjoyment and occupancy of the land;
• the right to possess the land;
• the right to the economic benefits of the land; and
• the right to pro-actively use and manage the land.

You can access this case on the Supreme Court of Canada website.

The law today does not provide any certainty on how private landowner’s fee simple rights will be impacted if their land is also subject to an Aboriginal title claim. The rights claimed by the Wolastoqey are incompatible with the rights of private landowners.