Wolastoqey Nations v. New Brunswick and Canada, et.al., 2024 NBKB 021

FC-322-2021

 

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

 

B E T W E E N:

WOLASTOQEY NATION AT WELAMUKOTUK (OROMOCTO FIRST NATION), WOLASTOQEY NATION AT SITANSISK (SAINT MARY’S FIRST NATION), WOLASTOQEY NATION AT PILICK (KINGSCLEAR FIRST NATION) WOLASTOQEY NATION AT WOTSTAK (WOODSTOCK FIRST NATION), WOLASTOQEY NATION AT NEQOTKUK (TOBIQUE FIRST NATION) AND WOLASTOQEY NATION AT MATAWASKIYE (MADAWASKA MALISEET FIRST NATION) ON BEHALF OF WOLASTOQEY NATION

                                                                                          Plaintiffs

and

 

THE PROVINCE OF NEW BRUNSWICK, THE ATTORNEY GENERAL OF CANADA, H. J. CRABBE & SONS, LTD., J.D. IRVING, LIMITED, 712414 N.B. LTD., ACADIAN TIMBER LIMITED PARTNERSHIP, BY ITS GENERAL PARTNER, ACADIAN TIMBER GP INC., ACADIAN TIMBER GP INC., ARCADIA SITES LIMITED, ARCTIC FALCON LIMITED, AV GROUP NB INC. / GROUPE AV NB INC., CHARLOTTE PULP AND PAPER CO. LTD., EASTCAN TRADING LIMITED, HIGHLANDS OPERATIONS LIMITED, IRVING OIL LIMITED, IRVING PAPER LIMITED LES PAPIERS IRVING LIMITÉE, JUNIPER ORGANICS LIMITED LES PRODUITS ORGANIQUES JUNIPER LIMITÉE, K.C. IRVING, LIMITED, MIRAMICHI TIMBER HOLDINGS LIMITED GESTION BOIS MIRAMICHI LIMITÉE, NEW BRUNSWICK POWER CORPORATION/SOCIÉTÉ D'ÉNERGIE DU NOUVEAU-BRUNSWICK, THE NEW BRUNSWICK RAILWAY COMPANY, POOLS PROPERTIES LIMITED LES IMMEUBLES POOLS LIMITÉE, ROTHESAY PAPER HOLDINGS LTD., ST. GEORGE PULP & PAPER LIMITED, STRESCON LIMITED, TWIN RIVERS PAPER COMPANY INC., VAN BUREN-MADAWASKA CORPORATION, NEW BRUNSWICK SOUTHERN RAILWAY COMPANY LIMITED/LA COMPAGNIE DE CHEMIN DE FER DU SUD, NOUVEAU-BRUNSWICK LIMITEE, BURNT HILL FISHING CLUB

                                                                                          Defendants

DECISION

On Motions Brought by the Defendants:

J.D. Irving, et. al., H.J. Crabbe & Sons and Acadian Timber, et. al.

 

and

 

DECISION

On Motion Brought by the Plaintiffs

 

 

 

BEFORE:                                                      Justice Kathryn A. Gregory

 

HEARING HELD:                                       Saint John, New Brunswick

 

DATES OF HEARING:                              December 4, 5, and 6, 2023

 

DATE OF DECISION:                                February 1, 2024

 

SUBJECT MATTER:                                  Defendants’ Motions to Strike a Pleading for Certificates of Pending Litigation

 

                                                                        and

 

                                                                        Plaintiffs’ Motion for an Alternate Form of Notice to Certificates of Pending Litigation

 

 

COUNSEL:

 

Renée Pelletier, Jaclyn McNamara and Victoria Wicks, Counsel for the Plaintiffs

Josh J. B. McElman, K.C., Counsel for the Defendants, Province of New Brunswick and New Brunswick Power Corporation (NB Power did not participate in the motions on consent)

Jonathan D.N. Tarlton, Counsel for the Defendant, the Attorney General of Canada

Alex M. Cameron, Counsel for the Defendant, H.J. Crabbe & Sons Ltd.

Catherine Lahey, K.C., R. Paul Steep and Thomas Isaac, Counsel for the Defendants, J.D. Irving Ltd., et.al.

Hugh J. Cameron, K.C., Counsel for the Defendants, Acadian Timber Ltd. Partnership, et. al.

Philippe Frenette, Counsel for the Defendant, Twin Rivers Paper Company Inc.

Matthew T. Hayes, K.C. and John Roberts, Counsel for the Defendants, Irving Oil Ltd., et. al.

Edwin Ehrhardt, K.C. and Michiel J. Vandenberg, Counsel for the Defendant, AV Group NB Inc.

Robert G. Grant, K.C., Counsel for the Defendant, Strescon Ltd. (Strescon did not participate in the motions on consent)

 

GREGORY J:

Overview

 

 

 

 

a.      “…the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here…  It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status”: R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507, at para. 30 [emphasis added]

 

b.      “Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Vanderpeet, .31, to be a basic purpose of s. 35(1) — ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.’ Let us face it, we are all here to stay”: Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 186 [emphasis added]

 

c.      “This Court confirmed the sui generis[1] nature of the rights and obligations to which the Crown’s relationship with Aboriginal peoples gives rise and stated that what makes Aboriginal title unique is that it arises from possession before the assertion of British sovereignty, as distinguished from other estates such as fee simple that arise afterward”: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, at para. 14 [footnote added]

 

d.      Recent jurisprudence from the Supreme Court of Canada has fine-tuned the concept of Aboriginal title, its characteristics and elements of proof. Those elements refer generally to an Aboriginal group’s prehistoric presence on certain defined land, the use and continuity of possession of the land by the Aboriginal group in question and the ability to enforce exclusive possession over time, up to the present: Delgamuukw, supra; R. v. Marshall/R. v. Bernard, 2005 SCC 43; and Tsilhqot’in, supra

 

 

Clarification and Preliminary Issues

 

 

 

 

(b) certificates of pending litigation for properties bearing the property identification numbers set out in Schedule "B", except any properties identified therein as associated with the defendant New Brunswick Power Corporation/Societe D'energie Du Nouveau-Brunswick against which the Plaintiffs do not seek certificates of pending litigation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Preservation of Rights Pending Litigation

Certificate Of Pending Litigation

42.01When Issued

A Certificate of Pending Litigation (Form 42A) may be issued in any proceeding in which any title to, or interest in, land is brought in question. [emphasis added]

 

 

 

 

The instituting of an action or the taking of a proceeding, in which action or proceeding any title to, or interest in, land is brought in question, shall not be deemed notice of the action or proceeding to any person not being a party thereto until a certificate of pending litigation prescribed by the Rules of Court under the Judicature Act has been signed by the clerk of The Court of King’s Bench of New Brunswick in the judicial district wherein the action was instituted or the proceeding taken, and has been registered in the registry office for the county in which the land is situate.

 

 

A certificate of pending litigation in prescribed form may be registered against land described therein and may be removed from registration by the registration of a court order or a certificate of the clerk of the court for the judicial district in which the action was commenced to the effect that the action in respect of which the certificate of pending litigation was issued

(a) has been discontinued; or

(b) has been disposed of by a judgment in favour of the defendant and no appeal has been taken within the time limited for so doing.

 

 

 

 

 

The Defendants’ Motions to Strike the Pleading

Requesting Certificates of Pending Litigation

 

The Background

 

 

 

 

 

 

 

 

 

The Relief Requested

 

 

a.      A declaration that:

 

                                                              i.      the CPLs requested by the Plaintiffs are “not registerable” in the Registry Act system or the Land Titles Act system

                                                           ii.      unregistrable CPLs serve no purpose and have no effect

                                                         iii.      a claim for unregistrable CPLs is scandalous, frivolous, vexatious and/or abusive of the Court process

                                                         iv.      the registration of CPLs would affect a disproportionate result pending the determination of the Claim

                                                            v.      the registration of CPLs would affect an unreasonable and unjustifiable restraint on trade pending the outcome of the Claim

 

b.      An order:

 

                                                              i.      striking paragraph 1(b) of the Claim that requests the registration of CPLs against the IDs on the basis that it discloses no reasonable cause of action, pursuant to Rule 23

                                                           ii.      striking paragraph 1(b) of the Claim on the basis that it is scandalous, frivolous, vexatious and/or abusive of the Court process, pursuant to Rule 27

                                                         iii.      ordering costs against the Plaintiffs.

 

The Arguments in Brief

 

 

 

a.      Case Law - The case law directly on point establishes that Aboriginal title cannot be registered in either a provincial registry or land titles system

 

b.      Interest in Land - Aboriginal title is not an “interest in land” as contemplated by the New Brunswick Registry Act or the Land Titles Act

 

c.      Registration - CPLs in relation to a claim of Aboriginal title are “not registerable” under the relevant legislation

 

d.      Rule 23 - It is plain and obvious, assuming the facts pleaded are true, that the Plaintiffs’ claim for CPLs fails to disclose a reasonable cause of action

 

e.      Rule 27 - The Plaintiffs request for CPLs is purposeless and ineffective, other than as litigation leverage, rendering the pleading scandalous, vexatious and an abuse of process; further, the Plaintiffs rely on legislation they seek to invalidate in the Claim, which is abusive

 

f.      CPLs as Injunctions – The motions, as framed, allow for the Court to consider the injunctive effect and impact of the registration of CFLs on the moving Defendants.

 

 

a.      Case Law - The case law referenced by the Defendants is not authoritative on a New Brunswick Court and pre-dates the decision of the Supreme Court of Canada granting Aboriginal title in Tsilhqot’in

 

b.      Interest in Land - Aboriginal title is an “interest in land” as contemplated by the New Brunswick Registry Act and the Land Titles Act 

 

c.      Registration - CPLs in relation to claimed Aboriginal title are “registerable” under the relevant legislation

 

d.      Rule 23 - It is not plain and obvious, assuming the facts pleaded are true, that the Plaintiffs’ claim for CPLs fails to disclose a reasonable cause of action; and, the novelty of a claim is not a basis to strike a pleading

 

e.      Rule 27 - The CPLs requested in the pleading are for a legitimate purpose, namely to protect their interest in and claim to repossess land currently owned by the IDs; and, to protect unknown third parties who will not have formal notice of the litigation; the Plaintiffs seek to invalidate only those aspects of the relevant legislation that are unjustifiably contrary to or in violation of Aboriginal rights

f.      CPLs as Injunctions - The motions, relying on Rules 23 and 27, do not allow for the consideration of the effect and impact of CFLs on the Defendants. Alternatively, if the Court is inclined to consider such impact, any prejudice arising from not finding CFLs registerable weighs heavier against the Plaintiffs.

 

Case Law:

Aboriginal Title - Generally

 

 

 

 

a.      Aboriginal title (“AT” here only) is a right in land (para. 111)

b.      AT is a sui generis interest in land (meaning of its own kind or class) distinguishing it “…from ‘normal’ proprietary interests, such as fee simple.” (para. 112)

c.      The characteristics of AT “…cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems.” (para. 112)

d.      AT “…must be understood by reference to both common law and aboriginal perspectives.” (para. 112)

e.      The sui generis nature of AT means it has the following dimensions:

                                                              i.      the title is inalienable, meaning it cannot be transferred, sold or surrendered to anyone but to the Crown

                                                           ii.      the title is sourced in the “…prior occupation of Canada by aboriginal peoples.” (para. 114), meaning: 

1.      AT is sourced in the common law principle that “…occupation is proof of possession in law...” That possession pre-dated “…colonization by the British and survived British claims to sovereignty…” (para. 114), and

2.      AT is sourced in “…the relationship between common law and pre-existing systems of aboriginal law.” (para. 114)

                                                         iii.      the title is held communally; “…it is a collective right to land held by all members of an aboriginal nation.” (para. 115)

f.      AT “encompasses the right to exclusive use and occupation of the land…” for a variety of purposes not limited to aboriginal practices, customs and traditions but the uses must not be irreconcilable with the nature of the group’s attachment to the land in question (para. 117).

 

 

 

 

a.      AT is “…an independent legal interest…” (para. 69)

b.      AT is “a beneficial interest in the land…” with the right to “…the benefits associated with the land…” (para. 70)

c.      Comparing Aboriginal title to other forms of land ownership “…may help us to understand aspects of Aboriginal title. But they cannot dictate precisely what it is or is not.” (para. 72)

d.      AT “…confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to proactively use and manage the land.” (para. 73)

e.      An important limitation to AT is that title is held “not only for the present generation but for all succeeding generations. As stated in Delgamuuk, it cannot be alienated except to the Crown nor can it be misused or used in a way that is irreconcilable with the ability of future generations to benefit from the land. (para. 74)

 

 

Case Law:

Aboriginal Title and CPLs Specifically

 

 

 

Delgamuukw v British Columbia (1987), 1987 CanLII 2630 (BC CA), 16 BCLR (2d) 145 (BCCA), leave to appeal to SCC refused (1987), 12 BCLR (2d) xxxvi (Delgamuukw/Uukw to avoid confusion with Delgamuukw previously cited)

 

Cook v Beckman (1990), 1990 CanLII 7817 (SK CA), 84 Sask R 89 (SKCA)

 

Chippewas of Kettle & Stony Point v Canada (Attorney General) (1994), 1994 CanLII 7250 (ON SC), 17 OR (3d) 831 (Ont GD)

 

James Smith Indian Band v Saskatchewan (Master of Titles) (1995), 1995 CanLII 3949 (SK CA), 131 Sask R 60 (SKCA), leave to appeal to SCC refused, [1995] SCCA No. 274

 

Skeetchestn Indian Band v British Columbia (Registrar, Kamloops Land Title District), 2000 BCSC 118, affirmed 2000 BCCA 525.

 

 

 

 

 

As to question (1), the Torrens System of land registration has been recognized by Legislatures and Courts throughout the Commonwealth, since the first legislation on the subject was enacted in Australia in 1858, as a system of which the primary object was to establish and certify to the ownership of absolute and indefeasible titles to land under Government authority as well as to guarantee the titles, and to simplify transfers thereof: Hogg, The Australian Torrens System, 1905, pp. 1 & 2; Megarry, Law of Real Property, 1957, p. 930; Re Shotbolt (1888), 1 B.C.R. 337, per Crease, J., at p. 342; see also Fels v. Knowles (1906), 26 N.Z.L.R. 604, where Edwards J., said at p. 620:

The cardinal principle of the statute is that the register is everything and that, except in cases of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world. Nothing can be registered the registration of which is not expressly authorized by the statute. Everything which can be registered gives, in the absence of fraud, an indefeasible title to the estate or interest.

                       

 

 

 

 

 

 

 

 

 

 

 

 

The Torrens system is designed to register interests in land that have a clear identity recognized by the rules of real property law. It is a real property regime based on fee simple grants by the Crown. A fee simple interest can be fragmented into smaller units. Other registrable interests in the land result from the fee simple interest. However, aboriginal title is not derived from fee simple. It is sui generis and does not lend itself to categorization. It is not alienable; it can only be surrendered to the Crown. Aboriginal title does not fit within the scheme of current real property law in that it is not an interest in land contemplated by the Land Title Act which only accommodates traditional common law or equitable interests in the land. Aboriginal title has no “identity recognized by the ordinary rules of the common law.” Furthermore, under the Torrens system priorities are based on the date of registration rather than the date when the right is acquired and therefore cannot accommodate aboriginal title which has its source in the occupancy and use of lands prior to the assertion of sovereignty by the Crown. For those reasons, aboriginal title is not registrable under the Land Title Act.

 

The same considerations apply to a caveat. From a practical point of view the principal difference between a caveat and a certificate of pending litigation is that the caveat has a predetermined life span during which nothing can be registered. Property subject to a certificate of pending litigation can be dealt with, although subsequent dealings may be subordinated to the claim being advanced.

 

The Supreme Court of Canada decision in Delgamuukw does not address the issue of registration of aboriginal title. Nor does it cast any light on the impact that aboriginal rights have on privately owned lands as opposed to Crown lands. According to Delgamuukw, it is possible for two aboriginal groups to have aboriginal title over the same land provided those interests can be reconciled and coexist. Delgamuukw does not say that this is so with respect to fee simple title. It suggests no mechanism for reconciling fee simple and aboriginal rights. (Skeetchestn (BCSC), supra at paras. 43-45)

 

“Interest in Land”

 

 

 

a.      Aboriginal title has now clearly been determined by the Supreme Court of Canada to constitute “an interest in land”.

b.      The 2014 Supreme Court of Canada decision in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 renders the provincial caselaw above noted out of date and no longer persuasive.

 

c.      The wording of the legislation in both the Registry Act, RSNB 1973, c. R-6 and the Land Titles Act, SNB 1981, c. L1.1, is more expansive and permissive than the legislation in issue in the above noted decisions such that it can include  Aboriginal title as an “interest in land”.

 

d.      Tsilhqot’in has changed the applicability of the doctrine of interjurisdictional immunity rendering the relevant provincial legislation applicable to Aboriginals.

 

 

a.      The nature of Aboriginal title is such that it cannot constitute an “interest in land” as contemplated by the New Brunswick legislation.

 

b.      There is nothing in Tsilhquot’in that changes Aboriginal title into an interest in land that is contemplated by the relevant New Brunswick legislation or to render the above noted case law on point outdated and no longer persuasive.

 

c.      The object and purpose of the relevant New Brunswick legislation does not contemplate or allow for an “interest in land” to include Aboriginal title.

 

d.      It is improper on the part of the Plaintiffs to rely on legislation, arguing it includes Aboriginal title as an “interest in land”, when they ultimately seek to invalidate the legislation according to the Claim.

 

 

See Delgamuukw, supra:

 

a.      referring to Dickson J. in Guerin v. R., 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335 describing aboriginal title as an ‘interest in land’ which encompassed a ‘legal right to occupy and possess certain lands’ (para. 119)

b.      “What aboriginal title confers is the right to the land itself” (paras. 138 and see 140 emphasis added).

 

 

 

 

See Tsilquot’in Nation v. B.C., 2014 SCC 44 :

 

c.      Also citing Dickson J. in Guerin that “aboriginal title is a beneficial interest in the land” (para. 70)

d.      “Aboriginal title confers ownership rights…” (para. 73).

 

 

See Delgamuukw:

 

a.      certain inherent limits render Aboriginal title “distinct from a fee simple” (para. 111)

b.      Aboriginal title is distinguished from “’normal’ proprietary interests, such as fee simple” (para. 112)

c.      “…its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems” (para. 112)

d.      it is sourced in the “…common law principle that occupation is proof of possession in law…and in the relationship between the common law and pre-existing systems of aboriginal law.” (para. 114)

 

See Tsilhqot’in:

 

e.      “Analogies to other forms of property ownership — for example, fee simple — may help us to understand aspects of Aboriginal title. But they cannot dictate precisely what it is or is not. As La Forest J. put it in Delgamuukw, at para. 190, Aboriginal title "is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts". (para. 72)

 

See Slattery, Brian. The Constitutional Dimensions of Aboriginal Title. (2015) 71 S.C.L.R. (2d):

 

f.      “In effect, the reason why Aboriginal title cannot be described in traditional property terms is that it is not a concept of private law at all. It is a concept of public law. It does not deal with the rights of private entities but with the rights and powers of constitutional entities that form part of the Canadian federation.” (pp. 47) (emphasis in original).

 

 

 

 

1.1(2)This Act applies to

(a)   the creation or transfer of an interest in land including a lease…

 

2.1(2)This Act applies to

(a) the creation or transfer of an interest in land including a lease…

 

 

 

Whether a statute of general application such as the Forest Act was intended to apply to lands subject to Aboriginal title — the question at this point — is always a matter of statutory interpretation.

 

 

 

2(1) This Act applies to the registration of the title to

(a)   every parcel of land, including land owned by the Crown,

 

15(3) Every instrument shall be registered according to its tenor and intent and the registration thereupon creates, transfers, surrenders, charges or discharges, as the case may be, the land, estate or interest therein described. [emphasis added]

 

15(4) Nothing in this Act confers on a registered owner, claiming otherwise than as a purchaser for valuable consideration, any better title than was held by his immediate predecessor in title. [emphasis added]

 

16 Notwithstanding anything in any other enactment, the owner who is shown by the title register to be the owner of a parcel of land described therein holds the land in fee simple subject, in addition to the overriding incidents implied by this Act, to such encumbrances, liens, estates or interests as are shown by the title register to have been registered against or in respect of that land and free from all other encumbrances, liens, estates or interests whatever, except in case of fraud wherein he has participated or colluded.

 

 

 

 

 

 

The oldest form of conveyance known to the common law is the feoffment with livery of seisin. It was, as the name implies, the delivery of seisin — the feudal counterpart of possession.

….

The feoffment was not just a way of conveying land. It was for many years the ordinary way. It was impossible at common law to convey a fee simple or other freehold estate in possession by deed. As it was put technically, such estates, or as they were called, “corporeal hereditaments”, lay in livery and not in grant. [emphasis added]

 

 

Every conveyance, duly acknowledged or proved and registered according to the law in force at the time of the registration, shall be effectual for the transferring of the land therein described and the possession thereof, according to the intent of such conveyance without livery of seisin or any other act.

 

 

 

92.        As for the land titles system, in CG Group Ltd. v. Girouard et al., 2018 NBCA 59, Quigg J.A. sets out in great detail the background to and purpose of this system in New Brunswick. She makes the following comparison between the registry system and the land titles system as follows:

 

Under the previous Registry System, the lawyer was required to conduct a historical title search of at least forty (40) years from an acceptable root and provide his or her client with an opinion as to the state and marketability of title setting out the nature and quality of the land ownership as well as any liens, restrictions or encumbrances that affect the title. Of course, before the lawyer could formulate an opinion on the specific title and issue a Certificate of Title, he or she had to first complete a series of title/ownership inquiries and searches on behalf of the purchaser to identify all rights, interests, responsibilities and restrictions that affect the use and enjoyment of a particular property, such as deeds, mortgages, easements, liens, restrictive covenants and so on. Under the old Land Registry system, this was done for every single real property transaction. For any subsequent sale, a new lawyer would have to do the same historic search again.

 

In the Land Titles System, the above-described title search is only done once, during the conversion process and through the application for first registration. It is the lawyer converting the property into the new system who is responsible for the conventional title search, along with the conversion and opinion of such property title in accordance with Part III of the Standards and the relevant provisions under the Act. This option forms the basis for SNB guaranteeing title and is the last historic search that will be done for the specific property. Any subsequent lawyer is entitled to rely on the guarantee of title issued by SNB by way of the CRO without the need to conduct any title search. (paras. 50-51)

 

93.        Quigg, J.A. refers to the Act being based on three principles for the purpose of providing “…commercial certainty…” regarding land interests. Referencing McKinney v. Tobias, 2006 NBQB 290, Quigg, J.A. states the following:

 

In New Brunswick, as confirmed in McKinney v. Tobias, 2006 NBQB 290, 306 N.B.R. (2d) 282 (N.B. Q.B.), the Land Titles System operates on three basic principles, namely: the mirror principle, the curtain principle and the insurance principle. These basic principles are known to be the doctrine of indefeasibility of title, and constitute the main pillars of the Land Titles System embodied by the Act. This was specifically addressed by Glennie J. in McKinney:

 

Land Titles legislation operates on three basic principles, namely: the mirror, curtain, and insurance principles. The mirror principle requires that the registrar of title reflect accurately and completely all facts material to the title. The curtain principle means that the register is the sole source of information and purchasers need not concern themselves with trust and other equities which lie behind this curtain. The insurance principle requires that if the application of the legislation, through some error or flaw, causes loss to a person, that person be compensated from an insurance fund created under the legislation…. [emphasis removed.]

 

Glennie J. further articulated the following tenets of the Land Titles System:

As noted per Sigurdson J. in Vancouver City Savings Credit Union v. Hu (2005), 31 R.P.R. (4th) 309 (B.C.S.C.) at para. 32:

The classic statement of the purpose of our land title system appears in Gibbs v. Messer (at 254):

 

The main object of the Act, and the legislative scheme for the attainment of that object, appear to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity. That end is accomplished by providing that every one who purchases, in bona fide and for value, from a registered proprietor, and enters his deed or transfer of mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author's title.

….

The system of examining and opining on titles has become simplified and more exact, in accordance with one of the main purposes of the Act: to promote commercial certainty and to simplify the task of title searching for a lawyer to render an opinion on title. (paras. 34-35 and 37) [emphasis added]

 

94.        Aboriginal title, despite sharing some characteristics, is not a fee simple interest: “Aboriginal title ‘is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts’.” (Tsilhqot’in, supra at para. 72)

 

95.        The provincial land registration systems are based on fee simple interests and do not anywhere appear to contemplate Aboriginal title interests. Conversely, Aboriginal title, by its nature, cannot not be constrained by such legislation, given its constitutional and sui generis status:

 

Aboriginal title has been described as sui generis in order to distinguish it from “normal” proprietary interests, such as fee simple. However, as I will now develop, it is also sui generis in the sense that its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems. As with other aboriginal rights, it must be understood by reference to both common law and aboriginal perspectives. (Delgamuukw, supra at para. 112)

 

96.        I recognize the urging of the Supreme Court of Canada toward the principle of reconciliation; however, I also acknowledge the limitations imposed thereon. Although explained in the context of evidentiary principles applicable to Aboriginal rights, I find it also applies to a Court interpreting legislation and its intended application to Aboriginal title such that it “…must be done in a manner that does not strain ‘the Canadian legal and constitutional structure.’” (Delgamuukw, supra at para. 82)

 

97.        The constitutional structure, as I understand it, expects a Court to interpret legislation in accordance with legislative intent and not to expand it beyond that intention of the Legislature.

 

98.        Given the incompatibility of the nature of Aboriginal title with the stated object, purpose and language in both Acts, I conclude that the Legislature did not intend to include Aboriginal title in its references to an “interest in land”.

 

99.        Whether in the spirit of reconciliation, as recommended by the Supreme Court of Canada, the Legislature should consider amendments to its legislation to include Aboriginal title is not for this Court to contemplate or to consider.

 

100.   The Plaintiffs’ argument that Tsilhqot’in has added to the understanding of the concept of Aboriginal title in such a way as to render it more akin to an interest in land such that it fits within the scope of the provincial registry and the land titles system, simply does not withstand scrutiny.

 

101.   The Plaintiffs argue that there is nothing in the legislation that specifically prohibits it from registration, but this fails to take into account the purpose and object of both the Registry Act and the Land Titles Act as stated above.

 

102.   In R. v. Marshall/Bernard, 2005 SCC 43, at paragraph 61, McLachlin C.J.C. for the majority, references the historical development of the common law concept of “title” as compared to Aboriginal title and cautions against looking for “…indicia of aboriginal title in deeds or Eurocentric assertions of ownership.” (Marshall, supra at para. 61)

 

103.   I acknowledge this comment is made in the context of what is required to prove Aboriginal title, but she references how “[t]he common law, over the centuries has formalized title through a complicated matrix of legal edicts and conventions…” I take the point to be that Aboriginal title is not likely found or contemplated in those Eurocentric concepts.

 

104.   As such, it is simply not possible to read either the Registry Act or the Land Titles Act, the stated application of each is to create or transfer an interest in land, as having intended or contemplated an interest such as Aboriginal title.

 

105.   I find the case law on point, although it is not New Brunswick jurisprudence, persuasive to the questions before me. I further find that there is nothing in Tsilhqot’in that impacts what has been previously stated in the decisions on point regarding CPLs and Aboriginal title.

 

Rule 23

 

106.   The moving Defendants reference and rely on Rule 23 of the Rules of Court for declaratory relief (as I inferred above) and to strike the pleading in the Claim for failing to disclose a reasonable cause of action.

 

107.   Rule 23 states the following:

 

Determination of Questions Before Trial

23.01Where Available

(1)The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court

(a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that question may dispose of the action, shorten the trial, or result in a substantial saving of costs,

(b) to strike out a pleading which does not disclose a reasonable cause of action or defence, or…

 

23.02 Evidence

Except with leave of the court, on applications under Rule 23.01(1), evidence shall not be admitted except

(a) a transcript of a relevant examination, and

(b) affidavits which are necessary to identify a document or prove its execution.

 

108.   In Brooks v. Fredericton City Police Force et.al., 2017 NBQB 83 (CanLII), 2017 NBQB 083, Justice Morrison set out the test to strike a pleading under this Rule. He stated at paragraph 7:

 

The correct approach to a motion to strike pleadings under Rule 23.01(1)(b) was set out in Sewell v. ING Insurance Co. of Canada, 2007 NBCA 42 at paragraph 26:

The principles that inform the determination of a defendant’s motion to strike under Rule 23.01(1)(b) are well settled and can be summarized as follows: (1) the only question for judicial resolution is whether it is plain and obvious that the Statement of Claim fails to disclose the essential elements of a cause of action tenable at law. That conclusion should be reached only in the clearest of cases; (2) correlatively, absent exceptional circumstances, the court must accept as proved all facts asserted in the Statement of Claim and abstain from looking beyond the pleading itself and any documents referred to therein (see Hogan v. Doiron (2001), 243 N.B.R. (2d) 263, 2001 NBCA 97 (N.B. C.A.), para. 38 and Boisvert v. LeBlanc (2005), 294 N.B.R. (2d) 325, 2005 NBCA 115 (N.B. C.A.), para. 21). To expand the exercise beyond those limits would operate to morph the motion under Rule 23.01(1)(b) into an application for summary judgment under Rule 22, the appropriate vehicle to determine prior to trial whether there is factual merit to a claim; (3) the Statement of Claim is to be read generously to accommodate drafting deficiencies; and (4) where a generous reading of its provisions fails to breath[e] life into a pleading, all suitable amendments should be allowed (see Rule 27.10(1) and LeDrew v. Conception Bay South (Town) (2003), 231 Nfld. & P.E.I.R. 61, 2003 NLCA 56 (N.L. C.A.)).

 

109.   Having considered this approach to Rule 23, I find that the relevant questions of law and my conclusions thereto, namely that Aboriginal title is not an “interest in land” such that a CPL can be “registered” under the relevant legislation, the pleading does not disclose a reasonable cause of action and should be struck.

 

Rule 27

 

110.   The moving Defendants also rely and refer to Rule 27 to strike the pleading in the Claim for being scandalous and an abuse of process. Having already struck the pleading, I only consider this Rule in relation to the moving Defendants’ request for costs on their motions.

 

111.   Rule 27 states the following:

 

Striking Out a Pleading or Other Document

The court may strike out any pleading, or other document, or any part thereof, at any time, with or without leave to amend, upon such terms as may be just, on the ground that it

(a) may prejudice, embarrass or delay the fair trial of the action,

(b) is scandalous, frivolous or vexatious,

(c) is an abuse of the process of the court,

(d) is a contempt of court, or

(e) is not in conformity with the Rules of Court.

 

112.   The moving Defendants argue that the Plaintiffs’ inclusion of a pleading requesting CPLs in the face of the case law existing on the matter, renders the pleading scandalous and vexatious. They further argue that in the context of a claim for Aboriginal title, given its constitutional status, CPLs serve no purpose. The request for same is improperly intended as leverage in the litigation given the injunctive nature of CPLs and the negative commercial impact such CPLs would have.

 

113.   I disagree. Considering the overall nature of a claim to Aboriginal title, the fact that the case law on point is not from New Brunswick and that the case law considers differently worded legislation, I do not find that the pleading for CPLs is scandalous, vexatious or an abuse of the process.

 

114.   I take the message from the Supreme Court in Tsilhqot’in to be that cases such as these are complex, concern evolving legal concepts and constructs, and are set in the context of reconciliation between Aboriginal and non-Aboriginal groups. While stated in the context of pleadings generally, I take the following statement to apply to the pleading for CPLs specifically:

 

…cases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim. What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved. (Tsilhqot’in, supra at para. 23)

 

CPLs as Injunctions

 

115.   I agree with the Plaintiffs that the Court is being asked primarily to resolve legal questions and that those questions should not be conflated with or informed by the separate and discretionary question of whether CPLs should issue here (assuming the legislation did contemplate Aboriginal title as an interest in land).

 

116.   Despite this not being an issue for me to consider here, there was much debate between the parties about whether a CPL is injunctive relief by nature or whether evidence is required, as argued by the Plaintiffs, to establish this as fact in the particular circumstances.

 

117.   While the Plaintiffs maintained that I should not concern myself with the discretionary question of whether CPLs should issue, all parties tendered some evidence in that regard and argued the point to some extent during the course of the three-day hearing.

118.   While it is true that a CPL is, in theory, a method for the formal notification of a dispute impacting land and the establishment of priority in interest to land, in practice it is injunctive and can be punitive in effect. In Ross v Toronto-Dominion Bank, 2016 NBQB 75, cited with approval in O'Neill et al v Edmanson, 2017 NBCA 33, Glennie J. stated at paragraph 21 that:

 

Once the Certificate of Pending Litigation is filed, notice to all the world is given that title of the land is being questioned and warns all against dealing with the defendant with respect to that land until the contest is determined: McTaggart v. Toothe (1884), 10 P.R. 261.

 

Although it has been held that a certificate of pending litigation is not an encumbrance, its practical effect is to act as an injunction so as to prevent the defendant from dealing with the land until the lawsuit is finished: Mactan Holdings Ltd. v. 431736 Ontario Ltd. (1980) 1980 CanLII 1618 (ON SC), 118 D.L.R. (3d) 91 (Ont. H.C.J.).

[emphasis added]

 

119.   If I am wrong in my conclusion on the legal question of whether Aboriginal title is an “interest in land” contemplated and intended under the provincial land registration systems, and such an interest could be registered, I point the Plaintiffs to comments made in Haida Nation v. British Columbia, 2004 SCC 73, regarding injunctive relief at this early stage of the litigation.

 

120.   The Court in Haida discusses injunctive relief in the context of an Aboriginal title claim and comments generally on the pre-title-declaration process from pleading stage to resolution stage.

 

121.   In Haida, Aboriginal title was claimed but not yet proven. The Haida sought a declaration that the government and Weyerhauser, a third-party company issued cutting licenses on the claimed land, owed a legal duty to consult them regarding their interest before title was proven. The government argued such duty only arises once title is declared.

 

122.   At the Court of Appeal, the decision of the chambers judge finding the government owed a moral duty to consult and not a legal one, was overturned and the appellate court decided that not only did the government have a legal duty to consult pre-title but so too did the third party, Weyerhauser.

 

123.   At the Supreme Court, this decision was overturned with a finding that the government owed a legal duty to consult pre-title but that non-Crown third parties do not owe any such duty. In fact, it found that “[t]he Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests.” (Haida, supra at para. 53)

 

124.   When arguing against the duty to consult pre-title, the government argued that the more appropriate remedy is the interlocutory injunction as opposed to the duty to consult and to accommodate pre-title. The Court disagreed stating that the interlocutory injunction in such a context constitutes “imperfect relief” for the Haida.

 

125.   While not prohibited or improper, the Court referred to such relief as constituting an “…all or nothing solution.” Comparatively, a government duty to consult, pre-title, “…entails balancing Aboriginal and other interests and thus lies closer to the aim of reconciliation at the heart of Crown-Aboriginal relations…” (Haida, supra at para. 14)

 

126.   Further, the “balance of convenience test tips the scales in favour of protecting jobs and government revenues…instead of being balanced appropriately against conflicting concerns…” (para. 14). While this is a criticism of the injunction, it nonetheless reflects the difficulty courts have balancing the impact on jobs and revenue against a claim that is in its infancy, being at the pleadings stage only.

 

127.   Both Haida and Tsilhqot’in discuss the sliding scale of strength of a title claim as it progresses through the court system. Set again in the context of consultation, the Court in Tsilhqot’in states the following at paragraph 91:

 

At the claims stage, prior to establishment of Aboriginal title, the Crown owes a good faith duty to consult with the group concerned and, if appropriate, accommodate its interests. As the claim strength increases, the required level of consultation and accommodation correspondingly increases. Where a claim is particularly strong — for example, shortly before a court declaration of title — appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim.

 

128.    In Haida, the Court goes on further with respect to injunctive relief referring to it as a “…stop-gap remedy pending litigation of the underlying issue.” Because Aboriginal title claims are complex and may take decades to resolve, “[a]n interlocutory injunction over such a long period of time might work unnecessary prejudice and may diminish incentives on the successful party to compromise.” (Haida, supra at para. 14)

 

129.   In any event, given my findings on the questions of law, I need not consider this issue at this time.

 

 

The Disposition

 

130.   Given the above-noted analysis and findings, I conclude that Aboriginal title is not an “interest in land” as that term is intended in either the Registry Act or the Land Titles Act in New Brunswick. As such, CPLs based on a sui generis Aboriginal interest in land, are not registerable under the Registry Act or the Land Titles Act.

 

131.   I, therefore, grant the relief sought by the moving Defendants to strike the pleading set out in paragraph 1(b) of the Claim that seeks CPLs.

 

132.   All three moving parties have requested costs on the motions but no party made specific submissions on what amount is appropriate in the context of this novel litigation in New Brunswick. While Rule 59, states that a judge shall fix costs on a motion for judgment, judicial discretion exists to refuse such an order:

 

Rule 59.08(1)(b) states that, on deciding a motion for judgment, the judge shall fix costs. While Rule 59.01(2)(b) provides that nothing in the Rule shall be construed to interfere with a judge's authority to allow or refuse costs with respect to a particular issue or part of a proceeding, the discretion must be exercised judicially. Edmondson v. Edmondson, 2022 NBCA 4, at para. 82

 

133.   As additional motions have been filed by the IDs to strike more of the Claim, I reserve any decision on costs on these motions at this time pending the hearing of the additional motions and in anticipation of submissions specific to costs in the context of this unusual litigation.

 

Plaintiffs’ Motion for Alternate Relief in Form of Notice by Other Means

 

134.   Subsequent to the filing of the Motions to Strike-CPLs addressed above, the Plaintiffs filed their Motion for Alternate Notice in the event the Court granted the moving Defendants’ motions to strike the impugned pleading.

 

135.   According to the Plaintiffs’ brief, they seek the following alternative relief to CPLs (I have labelled each with a letter for ease of reference):

 

a.      an order (with the Statement of Claim and reasons for this decision attached) that this proceeding questions some title or interest in the land, to be registered against the properties in Schedule B that are registered under the Registry Act (Notice A); and

 

b.      an order that the Industrial Defendants (excluding NB Power) shall provide notice of this proceeding to prospective purchasers and lenders in a specific form for the properties in Schedule B that are registered under the Land Titles Act (Notice B); or, in the alternative

 

c.      an order that the Industrial Defendants (excluding New Brunswick Power) provide notice of this Claim to Interested Third Parties in a specific form for all Schedule B parcels. Such notice must be provided regardless of whether the parcels are under the Registry Act and Land Titles Act (Notice C).

 

136.   While the Plaintiffs reference a number of Rules of Court, none are direct authority for the relief requested. They rely primarily on this Court’s inherent jurisdiction in the context of the protected rights of the Indigenous pursuant to s. 35 of the Constitution Act, 1982.[2]

 

137.   The concern underlying the request for CPLs in the Claim, namely, to protect against interests that may be acquired by third parties in relation to the claimed land who have not been formally notified of the Claim pending its resolution, underlies the request for alternate notice.

 

138.   The Plaintiffs maintain that they will be at a disadvantage if the alternate forms of notice are not granted. Bona fide purchasers for value without notice will have a defence to the Claim and to the remedies requested therein.

 

139.   I agree with the Defendants that the alternate form of notice, in the form of Notice A is a CPL by another name.

 

140.   The underlying premise of this form of alternate notice is that Aboriginal title is a registrable “interest in land” pursuant to both the Registry Act and the Land Titles Act.

 

141.   For reasons noted above in relation to the Motions to Strike-CPLs, I disagree with this premise and have found otherwise.

 

142.   Having concluded above that the Legislature did not intend to include Aboriginal title within the construct of either the Registry Act or the Land Titles Act, that finding by consequence impacts and determines the outcome in this Motion for Alternate Notice.

 

143.   Therefore, with respect to Notice A, for the same reasons for striking the paragraph in the Claim requesting CPLs, I decline to grant the alternate notice requested by the Plaintiffs.

 

144.   With respect to Notices B and C, I find that these notices are unnecessary and incompatible with the sui generis nature of Aboriginal title.

 

145.   As stated in Haida, a dispute over Aboriginal title and its resolution implicates two constitutional entities: the Crown and the Aboriginal groups claiming title. Third parties owe no duty or obligation, let alone one of constitutional proportion, to Aboriginal groups claiming title (this is of course leaving aside available claims in negligence or in contract as referenced in Haida: see paragraph 56[3]).

 

146.   I have further considered the request for alternate notice in the context of a clear and unequivocal concession by counsel for the Plaintiffs, that they do not allege liability on the part of the IDs. The Plaintiffs seek a remedy only from the IDs.

 

147.   Leaving aside the admonition in Haida, that the “…remedy tail cannot wag the liability dog…” (Haida, supra at para. 55), the imposition on third party landholders, operating commercial operations, to notify prospective purchasers and financiers of a 500 plus statement of claim, along with a court decision attached, as part of negotiations and disclosure relating to land, an interest in which if proven to be Aboriginal title is of constitutional status, is unnecessary and an undue burden over the course of the many years in which this Claim will be litigated.

 

148.   As an aside, it is in the interests of any commercial landholder to disclose the fact of the Claim, in any event, to any prospective purchasers and financiers to protect against future liability. The difference is of course, the IDs will decide what type of notice and disclosure suffices for their own protection.

 

149.   I, therefore, additionally dismiss the Plaintiffs’ motion for alternate forms of notice of the Claim, namely Notices B and C.

 

150.   As with the Motions to Strike-CPLs, I reserve any decision on costs on the Plaintiffs’ motion pending the hearing of the additional motions to strike pleadings.

 

 

 

_____________________________

 

Kathryn A. Gregory, J.C.K.B.