Province looks to strike portions of big Indigenous title claim

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The provincial government is in court this week, asking a judge to toss key portions of the big Aboriginal title claim filed by the Wolastoqey Nation for more than half of New Brunswick’s territory.

The province argues the Indigenous leaders who launched the court action in 2020 and amended it to include several large timber companies have over-reached.

The government also says unrepresented, everyday New Brunswickers who own homes and businesses in the traditional Indigenous territory should be left alone.

At issue is what the declaration would mean in real terms. Premier Blaine Higgs and Attorney General Ted Flemming have warned of impacts for all New Brunswickers if the six small Indigenous communities, with a population of 8,400 along the St. John River, succeed in establishing Aboriginal title.

But the Wolastoqey Nation’s lawyers insist the Indigenous communities have no interest in repossession of the property of everyday people, whom they call “strangers to the claim” in the lawsuit.

To accommodate the army of lawyers, the Court of King’s Bench was set up in a large basement conference room at the Fredericton Inn, a bigger venue than any of the rooms in the local courthouse.

All told, 18 legal staff filled several rows of tables, fronted by the plaintiff – the Wolastoqey – and defendants, including the provincial government and federal governments, and big timber firms such as J.D. Irving, Limited, Acadian Timber, and H.J. Crabbe and Sons.

It’s up to the Crown and Indigenous communities to work toward reconciliation.

Josh McElman

The public gallery was a collection of people you wouldn’t normally see in the courts, included three Wolastoqey chiefs, academics, First Nations members, reporters, spectators and more legal staff.

Josh McElman, a Cox and Palmer lawyer representing the province, presented a motion Monday to Justice Kathryn Gregory to remove the so-called industrial defendants from the claim, arguing there was no precedent in Canadian law for private land being given back to First Nations as part of an aboriginal title claim.

He also said that aboriginal title was irreconcilable with the fee simple property rights of homeowners and smaller businesses, and any such declaration would make it extremely difficult for those owners to sell or mortgage their properties, even if the Wolastoqey had promised not to repossess their land.

But McElman also admitted that the Wolastoqey would succeed in their quest for aboriginal title and that damages had occurred because the government, or Crown, had not asked permission from the Indigenous communities to hand out land grants over the last couple of hundred years. No treaty was ever signed extinguishing their rights.

How those damages should be compensated still needs to be worked out.

“It’s up to the Crown and Indigenous communities to work toward reconciliation,” the lawyer said to the judge of the process of righting historical wrongs, such as land theft. “The remedy they seek is not available to them in this court.”

He warned of the price of what they were asking for. The more than 250,000 parcels of land at stake have an assessed value of more than $44 billion.

Among many arguments over the course of several hours, McElman said aboriginal title did not square with private property, or fee simple, rights and that the Wolastoqey could not guarantee they wouldn’t go after people’s private property in the future once aboriginal title, as envisioned by the plaintiffs, was declared.

“It will give them the power to stop development,” the lawyer warned, arguing the Wolastoqey could have avoided the dispute if they hadn’t sought a claim for the entire western portion of New Brunswick, and then some.

Renée Pelletier, a Wolastoqey lawyer who works for OKT, came out firing on Tuesday, arguing the Indigenous communities could have demanded repossession of all the lands in their territory, as it was unceded, but did not in the interest of reconciliation between the two peoples.

The province is saying, ‘don’t worry, trust us, just give us some time, we’ll figure something out.’ But we’ve given them 300 years.

Renée Pelletier

She said aboriginal title and fee simple property rights could co-exist, as it was an area of law that was still developing, pointing to a case that was settled in British Columbia just last week.

The B.C. government announced it had reached agreement with the Haida to recognize aboriginal title to Haida Gwaii – all 10,000 square kilometres of the archipelago off the coast – with carve-outs for private lands. The Wolastoqey are after about 44,000 square km of land.

“That’s exactly what we’ve proposed,” she said, having provided a copy of the agreement to the judge earlier on.

Pelletier argued the Crown had a legal obligation to protect the Wolastoqey’s rights, but it had not, allowing land grants without its consent. Given that the Wolastoqey leaders never signed treaties extinguishing their title – as happened with other First Nations in parts of Central and Western Canada – Pelletier said the government had to accept the title claim.

“The province is saying, ‘don’t worry, trust us, just give us some time, we’ll figure something out.’ But we’ve given them 300 years.”

During a break, Chief Patricia Bernard of the Madawaska Maliseet First Nation in northern New Brunswick told reporters the Wolastoqey had said right from the beginning she and the other Indigenous leaders had no interest in getting land from everyday New Brunswickers.

She said the lawsuit had been amended to make it crystal clear that they were interested in Crown land and the vast holdings of the tree harvesting companies.

“If you’re a stranger to the claim, you have nothing to worry about,” she said. “That’s the bottom line.”

The chief said the Wolastoqey weren’t after $44 billion worth of property either.

“I’m not sure where they got those numbers. And the last I heard, Premier Higgs said it was in the trillions of dollars. So I’m not sure where they’re getting all their numbers.”

Arguments will continue Wednesday and Thursday, with the claim returning to court next week to hear submissions from the timber companies that are seeking to be released from the court action.