As previously discussed in our article of May 6, 2026,  two major court decisions (J.D. Irving, Limited et al. v. Wolastoqey Nation from New Brunswick and Cowichan Tribes v. Canada (Attorney General) from BC) have recently reshaped the legal landscape around Aboriginal title and private land ownership in Canada, raising fundamental questions for governments, developers, and property owners.

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Two courts - two different answers, and the Supreme Court of Canada isn’t stepping in just yet. In May 2026, the Supreme Court of Canada declined to hear the Wolastoqey Nation’s appeal of the New Brunswick Court of Appeal’s decision which held that Aboriginal title and fee simple ownership cannot exist, and that instead, courts may recognize a “finding” of Aboriginal title over private lands to support claims for compensation against the Crown. The Supreme Court of Canada’s decision leaves New Brunswick law clear: Aboriginal title cannot be declared over privately held lands - only compensation from the Crown is available. Meanwhile, the BC Supreme Court’s decision in Cowichan Tribes went the other way, declaring Aboriginal title over land that included private parcels.

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The Supreme Court of Canada’s refusal to weigh in on the New Brunswick case doesn't signal agreement or disagreement with either ruling, it simply means the Court wasn't ready to decide this issue without a full trial record. That Canada-wide resolution will likely have to wait until the Cowichan Tribes case works its way through the BC Court of Appeal and eventually reaches the Supreme Court of Canada, a process expected to take several years.

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In the meantime, Aboriginal title litigation continues. The BC Court of Appeal recently expanded a title declaration in Nuchatlaht v. British Columbia, covering over 200 km² of Nootka Island, though notably, no private lands were involved.

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The bottom line: the law remains unsettled and different across provinces. Real estate investors, developers, and lenders should continue to monitor these developments closely.

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