Oberstes NB-Gericht entfernt privates Waldland aus dem Wolastoqey-Titelverfahren

This decision aligns much better with the case law in my view than the BC Cowichan decision.

1. Aboriginal title is sui generis which is something the SCC has repeatedly stressed to precisely avoid conflicts like the ones that are now reading their heads.

2. This aligns better with the land title systems most provinces have and with reconcilation. That is the current possessor, if a bona fide purchaser, retians the property and the party facing a loss claims compensation from the wrongful party or a general pool. 

3. The law should evolve incrementally and in line with societal norms. A court ruling that extends itself too far ahead of society risks backlash, pushback, reform, and being ignored. Courts are institutions that require societal buy in absent the use of state force. That is not to say courts should bow to societal pressures, after fiat justia and all that. But a court needs to have to have the pulse of society to best craft a judgement that delivers justice. All courts, but also as you increasingly move up, need to have an eye towards policy. With long civil litigation goes, the concern is trial court’s getting stuck in the weeds and missing the policy and societal implications. 

4. The reason we have this NB case is because notice was given to the fee simple title holders. The BC court  decision not to have formal notice provided to the title holders was a mistake as their interests were clearly implicated and they should have been notified that they were eligible to be parties to the suit. The informal notice would not have been of much use as it the notice application already signalled that the court did not view them as eligible parties so it would have been an uphill battle to have themselves added.

5. Bad facts make for bad law. The fact that the Cowichan case involved reserve land complicated and mixed up the issues. Particularly when reverse land and Aboriginal title are not synonymous though often concurrent. 

6. The SCC may yet weigh in depending on how other courts of appeal end up ruling. But we are likely still several years away from that. 

7. Advocates may view using courts as the winning strategy but it has to be more multi pronged. Related to my points above, pushing society ahead of the cruve is unlikely to yield much benefit. Lawsuits should be used strategically and narrowly to lever the government off specific points but broad based reform has to be more ground up. That historically leads to more success. 

8. Reconcilation means interests, that are at times competing, have to be reconciled. That does not mean picking a winner or loser but coming to a compromise that is acceptable to all. Both sides digging is not helpful, something this judgement recognizes. The only way out of this mess is to eventually put this in the past and move on. The process will have to end one day otherwise it is not true reconcilation, though some processes will remain in the long term. It also means, not withstanding the losses the aboriginal title holders have had, they may not receive full compensation. The goal is just compensation that is sufficient to rejoin the societies.