Top Court Declines to Revisit Ruling That Aboriginal Title Cannot Cover Private Land

On May 28, 2026, the Supreme Court of Canada declined to hear an appeal in J.D. Irving, Limited et al. v. Wolastoqey Nation, leaving in place a New Brunswick Court of Appeal ruling that a declaration of Aboriginal title is not available over privately held land.

Background

The Wolastoqey Nation, representing six related communities in New Brunswick, had sought to include privately owned land within a broader Aboriginal title claim covering roughly half the province. The New Brunswick Court of Appeal held, at a preliminary stage, that Aboriginal title claims cannot extend to land already held in fee simple by private owners - meaning a title declaration was only potentially available over Crown land, not land owned by individuals, companies, or industrial landholders.

Why the denial matters

A denial of leave to appeal is not a ruling on the merits - the Supreme Court gives no reasons when it declines to hear a case, and this decision does not mean the Court agrees with the New Brunswick approach. But by leaving the ruling in place, the Court has created a live split in Canadian law: in British Columbia, a provincial court has taken the opposite position in the closely watched Cowichan Tribes litigation, declaring Aboriginal title over an area that includes privately owned land in Richmond, B.C. British Columbia's Attorney General has said the New Brunswick outcome strengthens the province's position as it appeals the Cowichan decision.

What happens next

The underlying question - whether Aboriginal title can ever be declared over privately owned land - remains unresolved at the national level. It will likely fall to the Cowichan Tribes case, or a similar future case, to eventually reach the Supreme Court on the merits, a process expected to take years. In the meantime, the legal treatment of private land within asserted Aboriginal title areas will differ by province, creating real uncertainty for landowners, purchasers, and lenders in regions where title claims overlap with private property.

Why this affects real estate transactions

Buyers, sellers, and lenders dealing with property in regions with an asserted or pending Aboriginal title claim - particularly in British Columbia while the Cowichan appeal proceeds - should expect this issue to affect title insurance, financing conditions, and legal due diligence for the foreseeable future. A real estate lawyer familiar with the current state of this litigation can advise on what specific risks apply to a given property.