Two recent decisions from the courts of British Columbia and New Brunswick have addressed the relationship between Aboriginal title and private property rights. In Cowichan Tribes v. Canada, the Supreme Court of BC granted a declaration of Aboriginal title, which included lands held in fee simple by third parties. In contrast, in JD Irving Limited et al. v. Wolastoqey Nation, the New Brunswick Court of Appeal held that such a declaration could not extend to privately-owned lands. While these remedial declarations are discretionary, the apparent conflict in judicial approaches raises questions about the future approach to Aboriginal title claims in respect of private property. What you need to know:

• These two decisions reached opposite conclusions on the availability of a declaration of Aboriginal title over privately-held lands. 
• In neither case were private property rights invalidated. 
• The legal test to establish Aboriginal title is difficult to meet, having been established just three times in court. 
• The plaintiffs in Wolastoqey Nation are seeking leave to appeal at the Supreme Court, while all defendants in Cowichan Tribes have appealed to the BC Court of Appeal.