Category: Property Page 1 of 34

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.

“Money for Nothing”: Landlords Take on Residential Tenants’ Security Deposits

By Jonnette Watson Hamilton

On January 20, 2026

In Property, Residential Tenancies Dispute Resolution Service

By: Jonnette Watson Hamilton

Legislation Commented On: Residential Tenancies Act, SA 2004, c R-17.1, Part 4

PDF Version: “Money for Nothing”: Landlords Take on Residential Tenants’ Security Deposits

Landlords must place their residential tenants’ security deposits in an interest-bearing trust account. When interest rates are low, landlords take for themselves all of the interest earned in these accounts. When interest rates are higher, landlords take at least the first three percent of the interest earned on their tenants’ money, delivering the rest to their tenants. In addition to benefiting from this “spread,” landlords’ duty to pay interest on security deposits to their tenants ends when tenants vacate the rental premises, but landlords can keep the security deposits for at least ten, if not thirty days. If landlords wrongfully withhold security deposits, they can keep both security deposits and the interest earned for weeks, months or even years of negotiation, law suits, judgment filings and service, and collections. This might seem like small change if your idea of a landlord is a couple renting out a basement suite in their home. However, landlords in Alberta these days tend to be Real Estate Investment Trusts (REITS) and some of these REITS have thousands of residential tenants. If a REIT has 20,000 rental units in Alberta with an average of one $2,000 security deposit per unit, a REIT would have $40,000,000 of their tenant’s money earning the REIT at least 3% interest annually. That would be $1,200,000 per year. Money for nothing and all legal. The three percent spread and the interest-free holding after tenants vacate are enabled by Alberta’s Residential Tenancies Act, SA 2004, c R-17.1 (RTA) and its regulations. The refusal of the Residential Tenancies Dispute Resolution Service (RTDRS) to require landlords to pay interest on wrongfully withheld security deposits, or to otherwise compensate tenants, is not required, but it seems to be their policy.

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.

When Is An Interest In Land A Legal (As Opposed To An Equitable) Interest?

By Nigel Bankes

On August 1, 2025

In Natural Resources, Property

By: Nigel Bankes

Case Commented On: PrairieSky Roy2alty Ltd v Yangarra Resources Ltd, 2025 ABCA 240 (CanLII)

PDF Version: When Is An Interest In Land A Legal (As Opposed To An Equitable) Interest?

The principal issue in this case by the time the matter reached the Court of Appeal was the question of whether a gross overriding royalty (GORR) carved out of an Alberta Crown petroleum and natural gas (png) lease was a legal or an equitable interest in land. Justice Michel Bourque at trial (2023 ABQB 11) concluded that the GORR in question was an interest in land (applying Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 aff’g 1999 ABCA 363). Furthermore, Justic Bourque went on to conclude that the GORR was a legal interest in land. The GORR was therefore binding on Yangarra as the successor in interest to the Crown png lease, even though Yangarra had no notice of PrairieSky’s GORR. As a result, Justice Bourque did not need to consider Yangarra’s alternative argument to the effect that if the GORR were only an equitable interest in land Yangarra was entitled to be treated as equity’s darling (i.e. the bona fide purchaser of the legal estate without notice (actual or constructive) of the prior outstanding equitable interest (i.e. the GORR)). The Crown png lease originally granted in 1979 was held by a number of parties in succession over the years until 2011, when Home Quarter Resources (HQR) granted the GORR to Range Royalty (the HQ GORR or the 2011 GORR). The lessee’s interest subsequently became vested in Yangarra, while Range Royalty’s interest became vested in PrairieSky. I commented extensively on the trial judgment here and I refer the reader to that comment for a more detailed summary of the facts.

Sometimes it is Completely Irrelevant Whether or not a Royalty Interest Amounts to an Interest in Land

By Nigel Bankes

On August 28, 2023

In Energy, Land Use, Property

By: Nigel Bankes

Case commented on: Enerplus Corporation v Harvest Operations Corp, 2021 ABQB 634 (CanLII), appeal dismissed, 2023 ABKB 482 (CanLII)

PDF Version: Sometimes it is Completely Irrelevant Whether or not a Royalty Interest Amounts to an Interest in Land

Harvest (70%), Orlen (15%), and Petrus (15%) are the working interest owners of certain oil and gas properties. Under the terms of a farmout agreement (in the form of the 1997 Farmout and Royalty Procedure of the Canadian Association of Petroleum Landmen (CAPL)), back in the chain of title, Enerplus holds a gross overriding royalty interest (GORR) in the 70% interest currently held by Harvest. The terms of the GORR provided that: