Category: Aboriginal Page 1 of 32

Case Commented On: JD Irving, Limited et al v Wolastoqey Nations, 2025 NBCA 129 (CanLII); Wolastoqey Nations v New Brunswick and Canada, et al., 2024 NBKB 203 (CanLII)

PDF Version: “Declarations of Aboriginal Title Are Not Discretionary”

Robert Hamilton has already posted an ABlawg article on the recent New Brunswick Court of Appeal decision in the Wolastoqey Nations case. In it, he does an excellent job of summarizing the issues on the motion to strike the industrial defendants from the proceedings and of critically analyzing the Court of Appeal’s decision. I will therefore focus my commentary on what I regard as another troubling aspect of the decision, namely that a judicial declaration does not necessarily follow from a factual finding of Aboriginal title.

This action was brought by the Wolastoqey Nations against Canada, New Brunswick, and a number of industrial, fee simple landowners who brought the motion to strike to avoid participation in the litigation. On such a motion, the facts alleged in the statement of claim are assumed to be established. The question was thus limited to whether these landowners were proper parties.

The New Brunswick Court of Appeal Weighs in on Aboriginal Title and Private Lands

By Robert Hamilton

On January 14, 2026

In Aboriginal, Indigenous, Property

By: Robert Hamilton

Cases Commented On: JD Irving, Limited et al v Wolastoqey Nation, 2025 NBCA 129 CanLII; Wolastoqey Nations v New Brunswick and Canada, et al., 2024 NBKB 203 CanLII.

PDF Version: The New Brunswick Court of Appeal Weighs in on Aboriginal Title and Private Lands

The New Brunswick Court of Appeal just delivered an important decision on the relationship between Aboriginal title and private property, concluding that declarations of Aboriginal title are not available where lands have been granted to private landowners. The practical and doctrinal implications are significant and could have impacts across the country. The Wolastoqey have indicated they intended to seek leave to appeal to the Supreme Court of Canada.

Treaty-Making in Australia and Considerations for Canada

By Robert Hamilton

On October 22, 2025

In Indigenous, Reconciliation, Treaty Rights

By: Robert Hamilton and Harry Hobbs

Matter Commented On: Victoria’s Statewide Treaty and Statewide Treaty Bill 2025

PDF Version: Treaty-Making in Australia and Considerations for Canada

Indigenous peoples in Australia have long sought to establish treaty relationships with the state. While important advocacy efforts such as the 1988 Barunga Statement and the final report of the Council for Aboriginal Reconciliation in 2000 failed to lead to negotiations at the national level, a statewide treaty was recently signed in the state of Victoria. The first formal Indigenous treaty ever negotiated in Australian history, the Victorian Statewide Treaty is a novel model of treaty that is worth considering closely in Canada, particularly as Indigenous peoples and federal, provincial, and territorial governments continue to look for productive ways to implement historic and modern treaty promises and craft novel forms of agreement. Creative thinking is required to take steps to meet the Crown’s constitutional obligations to diligently implement treaty promises, proactively assess and manage cumulative impacts on Aboriginal and treaty rights, meaningfully implement modern treaty and self-government agreements, and satisfy its obligations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Recent discussions about the relationship between treaty rights and a secession referendum in Alberta (which one of us discussed here) also illustrate the importance of thinking creatively about the relationship between Indigenous self-determination, treaty rights, and other democratic state process and institutions. This blog summarizes Victoria’s Statewide Treaty and the proposed bill that will implement it.

The Dissent in Dickson v Vuntut Gwitchin First Nation: Failing to Accommodate Legal Pluralism

By Jennifer Koshan

On September 24, 2025

In Aboriginal, Constitutional, Indigenous

By: Jennifer Koshan, Robert Hamilton, and Jonnette Watson Hamilton

Cases Commented On: Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII); Houle v Swan River First Nation, 2025 FC 267 (CanLII); Donald-Potskin v Sawridge First Nation, 2025 FC 648 (CanLII); Cunningham v Sucker Creek First Nation 150A, 2025 FC 1174 (CanLII)

PDF Version: The Dissent in Dickson v Vuntut Gwitchin First Nation: Failing to Accommodate Legal Pluralism

This is the fourth and final post in our series on the Supreme Court of Canada’s decision in Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII). Our last post examined the majority judgment of Justices Nicholas Kasirer and Mahmud Jamal (Richard Wagner CJ and Suzanne Cote J concurring) on the interplay between sections 15(1) and 25 of the Charter. This post focuses on the dissenting judgment of Justices Sheilah Martin and Michelle O’Bonsawin on the section 15/25 issues. As we discuss, the two opinions contrast significantly in the way they prioritize the protection of collective Indigenous rights and the claims based on individual Charter rights and freedoms. We describe and critique the dissent’s analysis and we return to the three recent decisions introduced in our third post to think through how the approach of Martin and O’Bonsawin JJ would have played out in those cases (see Houle v Swan River First Nation, 2025 FC 267 (CanLII); Donald-Potskin v Sawridge First Nation, 2025 FC 648 (CanLII); Cunningham v Sucker Creek First Nation 150A, 2025 FC 1174 (CanLII)).

Charter Sections 15 and 25: The Majority Judgment in Dickson v Vuntut Gwitchin First Nation and its Application in the Federal Court

By Jonnette Watson Hamilton

On August 29, 2025

In Aboriginal, Constitutional, Equality, Indigenous

By: Jonnette Watson Hamilton, Robert Hamilton, and Jennifer Koshan

PDF Version: Charter Sections 15 and 25: The Majority Judgment in Dickson v Vuntut Gwitchin First Nation and its Application in the Federal Court

This is the third in a series of four ABlawg posts on the Supreme Court of Canada’s complex decision in Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII). The first post examined the extent to which various factions of the Court referenced the UN Declaration on the Rights of Indigenous Peoples, and the second post analyzed their handling of whether the Canadian Charter of Rights and Freedoms applied in this context. In this post, we explore another issue on which there was serious disagreement amongst members of the Court. Having found that the Charter applied to the Vuntut Gwitchin First Nation’s (VGFN) residency requirement for Council elections, the majority (Justices Nicolas Kasirer and Mahmud Jamal, with Chief Justice Richard Wagner and Justice Suzanne Côté concurring) and dissenting justices (Justices Sheilah Martin and Michelle O’Bonsawin) ruled on how to approach the interplay between sections 15(1) and 25 of the Charter. We look at the majority judgment and three recent decisions applying the majority’s approach to section 25, also in cases involving First Nations elections: Houle v Swan River First Nation, 2025 FC 267 (CanLII) (Houle), Donald-Potskin v Sawridge First Nation, 2025 FC 648 (CanLII)) (Donald-Potskin), and Cunningham v Sucker Creek First Nation 150A, 2025 FC 1174 (CanLII). The fourth post in this series will focus on the dissenting judgment of Martin and O’Bonsawin JJ on the interplay between sections 15(1) and 25.