Update: Supreme Court of Canada Denies Leave to Appeal in Wolastoqey Nation – Aboriginal Title Over Private Lands

In our previous bulletin, we discussed two recent court decisions that reached different conclusions on whether Aboriginal title can be declared over privately owned lands. In J.D. Irving, Limited et al. v. Wolastoqey Nation (Wolastoqey Nation), the New Brunswick Court of Appeal held that it was plain and obvious that a declaration of Aboriginal title was not available over privately held fee simple lands. In Cowichan Tribes v. Canada (Attorney General) (Cowichan Tribes), the British Columbia Supreme Court declared Aboriginal title over an area that included privately owned land. We noted at the time that the guidance of the Supreme Court of Canada would ultimately be required to resolve these important issues at a national level.

On May 28, 2026, the Supreme Court of Canada denied the Wolastoqey Nation’s application for leave to appeal the New Brunswick Court of Appeal’s decision. The Court did not provide reasons for its decision, which is typical of leave applications. This means that the Wolastoqey Nation decision remains the law in New Brunswick. For both the Wolastoqey Nation’s action and any other Aboriginal title claims in that province, only findings of Aboriginal title and compensation from the Crown (not declarations) are available in respect of private lands.

What Denial of Leave in Wolastoqey Nation Means, and Does Not Mean

The Supreme Court of Canada’s denial of leave to appeal Wolastoqey Nation does not mean that the Court necessarily agreed or disagreed with the New Brunswick Court of Appeal’s reasoning or conclusions regarding declarations of Aboriginal title over private lands. The test for leave to appeal to the Supreme Court of Canada is not based on the merits of the proposed appeal. Rather, the Court will only hear an appeal if, in the Court’s view, the case raises a question of public importance.

In the absence of reasons for dismissing the application, we can only speculate as to why the Court did not consider the proposed appeal to have warranted a decision by the country’s highest court. One possible explanation is that the Court did not wish to decide the issue of whether a declaration of Aboriginal title can be granted over privately owned lands in the context of a preliminary motion, without the benefit of a complete evidentiary record. Indeed, J.D. Irving’s lawyers argued in their response to the leave application that the Wolastoqey Nation action was still in its early procedural stages and that it would be more appropriate for the Court to wait until a case with a full trial record — such as Cowichan Tribes — reached the highest court. Similarly, Cowichan Nation (who filed argument at the Supreme Court of Canada in Wolastoqey Nation) argued that such an important point of law should not be decided before a full evidentiary record had been ascertained at trial.

Implications for the National Resolution of This Issue

For those who had hoped that the Supreme Court of Canada might resolve the question of whether Aboriginal title can be declared over private lands on a nationwide basis in the near term, this decision prevents that outcome. Instead, the public will likely have to wait until Cowichan Tribes, or a similar decision, makes its way through the appellate process to the Supreme Court of Canada, which is expected to take several years. The Cowichan Tribes decision has been appealed to the British Columbia Court of Appeal, but there has been no date set for the hearing of the appeal. Until this issue is ultimately resolved by the Supreme Court of Canada, the uncertainty and asymmetry in the law between provinces will continue, with private lands in British Columbia potentially subject to declarations of Aboriginal title, while private lands in New Brunswick are not.

Declarations of Aboriginal Title Continue

In the meantime, Aboriginal title cases continue to be litigated and decided. One recent example is the British Columbia Court of Appeal’s decision in The Nuchatlaht v. British Columbia, released on April 2, 2026. In that case, the Court of Appeal overturned the trial judge's limited declaration of Aboriginal title over a relatively small area of Nootka Island. The Court of Appeal declared Aboriginal title to a much larger area of over 200 square kilometres. In doing so, the Court of Appeal found that the trial judge had taken an overly restrictive, site-specific approach to the requirement of “sufficient occupation.”

However, none of the land in the Nuchatlaht claim was privately owned, distinguishing it from both the Wolastoqey Nation and Cowichan Tribes decisions. Nor was the land in Nuchatlaht subject to competing Indigenous claims, which is another key distinction from the Cowichan Tribes decision.

These developments underscore that Aboriginal title remains a dynamic area of law, with practical implications for private landholders, Indigenous nations, lenders and infrastructure owners across Canada. We will continue to monitor these cases and provide updates as they develop.

For more information, please contact the authors or any other member of our Indigenous group.