Over the past three months, several articles have addressed the issue of aboriginal title to privately held land in New Brunswick. By way of background, Wolastogey and Mi’kmaqFirst Nations filed legal actions seeking Aboriginal title over 4.1 million hectares of land, including both crown and privately owned land in New Brunswick. They also assert ownership over all minerals, including mines and natural gas, as well as revenues from generation sources such as Mactaquac Dam, Lepreau, and Belledune.
The Honorable Joseph T. Robertson (Retired) authored the first article, which was published in Brunswick News on January 25th. Robertson argues that First Nations must prove that their traditional lands were neither ceded nor surrendered to the British under the Peace & Friendship Treaties signed between 1725 and 1779. Furthermore, they must prove they occupied approximately 4.1 million hectares of land during that period, encompassing all of New Brunswick. Chief Patricia Bernard of Madawaska First Nation published a rebuttal on March 13th, claiming Robertson misled the public. This view is supported by retired Judge Graydon Nicholas in an article published on March 25th. Both contend that Robertson’s assertions are inaccurate, citing ongoing cases for Aboriginal title to privately held lands elsewhere in Canada.
The case was adjudicated in the Lower Courts under the supervision of Justice Kathryn Gregory.She determined that Aboriginal title can be established over privately owned land but clarified that landowners cannot be directly sued for the return of such land. The contention is with the Crown.Consequently, she dismissed the claims against all the “industrial defendants,” including Irving Oil, J.D. Irving, H.J. Crabbe & Sons, and Acadian Timber Corp. et al. (It should be noted that nearly 94%of Crown land allocated for forestry use is leased to forest companies.)
Although Justice Gregory dismissed the case against all industrial defendants, she indicated that their land remains a subject of consideration. The complication arises from her assertion that the Crown may be instructed or required to employ its expropriation powers to return land to the Wolastoqey.
In response, the industrial defendants contested this decision. They appealed and retained three prominent law firms in New Brunswick to file statements of claim.
While the industrial defendants are represented by legal counsel, who represents the private landowners with houses, cottages, and parcels of land?
The province has issued a policy directive mandating reconciliation through negotiations. The option of pursuing litigation is off the table. Robertson writes, “In doing so, the province has effectively conceded defeat on behalf of nearly all New Brunswickers, without so much as a word of protest.” He also asserts that the Attorney General should preside over this decision, rather than politicians.
At CCC, we do not take sides, nor should we. However, we strongly believe that this matter should be decided in the Appellate Court and ultimately heard by the Supreme Court of Canada.
We have written to the Premier expressing our views. Her response was, “The courts have indicated that some legal matters are best discussed at the negotiation table rather than in a courtroom, and that Aboriginal title is primarily about reconciliation. We are committed to working with First Nations on a government-to-government basis and strengthening relationships built on trust and a shared understanding of treaty obligations.” While First Nation leaders state they have no interest in taking over our houses and cottages, that is their position today. Will it always remain the same?
Although we acknowledge the Premier’s position, we remain steadfast in our belief that private landowners require representation at the Appellant Court. We will continue to explore avenues to achieve this objective. We welcome your comments.
Daryl K. Branscombe
COMMUNITY OF CREATIVE CITIZENS