Free, prior, and informed consent (FPIC) from Indigenous peoples isn’t just a matter of respect and reconciliation—it’s a crucial risk management strategy for both the Crown and industry. A recent New Brunswick court case, Wolastoqey Nations v New Brunswick, 2024 NBKB 203, refers to expropriation as one possible outcome of the Crown and industry ignoring Indigenous consent, and First Nations later establish aboriginal title.
When the Crown grants property interests over non-treaty territory without Indigenous consent, it creates a precarious situation. Third parties may invest significant resources developing lands, only to face the risk of expropriation if Indigenous title is later proven. The Crown itself may face substantial financial burdens in compensating these third parties. The Wolastoqey case explicitly recognizes that risk. That case involves six Wolastoqey Nations claiming aboriginal title to more than half of New Brunswick, encompassing over 250,000 parcels of fee simple land.
The court in Wolastoqey found primarily that third-party owners are not proper parties to a constitutional dispute over aboriginal title, despite the plaintiffs seeking relief against specific companies. The plaintiffs therefore had no prospect of success against the private owners, and conversely, the industry defendants lacked any interest in opposing the declarations of aboriginal title sought by the plaintiffs (at paras. 109, 127, 194 and 197). “Sidelining this judicial and constitutional exercise by the inclusion of a legal debate with private landowners about who has better title to the land is untenable, unnecessary, and quite possibly a false dichotomy” (at para. 159). This outcome takes a significant step beyond what the BCSC decided in Haida Nation v. British Columbia, 2017 BCSC 1665 (CanLII), where Haida did not seek relief against any private owners, and for that reason the BC court declined to require that private owners be joined in the action (at para. 38) or receive formal notice of the claim (at para 51). The NB court decided that private owners cannot be joined, and conversely, cannot join themselves.
In deciding, however, that only the Crown was responsible for reconciling aboriginal title with private owners, the court highlighted a crucial point: if the Wolastoqey Nations succeed in their claim, the Crown may need to expropriate third-party interests and compensate the holders to restore the land to its rightful Indigenous owners (at para. 134): “Should the Court determine that such a remedy is warranted flowing from a declaratory judgment (and should reconciliation fail), the Crown may be directed or ordered to use its expropriation powers and may be subject to a claim by the fee simple holders for compensation arising therefrom.”
When the Crown confers property interests (and third parties receive them) without Indigenous consent — whether they be fee simple interests, mineral tenures, or pipeline easements— the lack of consent creates significant risks for all parties:
- third-party owners may lose their interests through expropriation;
- the Crown may face substantial compensation obligations; and
- Indigenous peoples must engage in costly, time-consuming litigation for recognition of their rights.
FPIC offers a better path forward. By obtaining Indigenous consent before granting property interests, the Crown and industry can avoid these risks. FPIC represents more than just a moral imperative—it’s the most practical way to ensure that property interests are legally secure and that all parties’ rights are respected from the outset.
The Wolastoqey case recognizes a risk that shows that ignoring Indigenous ownership and governance interests isn’t just wrong—it may also be economically unsound. When the Crown and industry proceed without consent, they expose themselves to the possibility of future restitution, which may include expropriation by the Crown, at the expense of either the Crown, or industry, or both. In contrast, their seeking and obtaining FPIC creates certainty for all parties and supports genuine reconciliation.
Wolastoqey Nations v New Brunswick, 2024 NBKB 203
Lisa C. Fong, KC and Michael Ng