New Brunswick has just revisited the parable of Hans Brinker—the plucky Dutch boy in wooden shoes who, by thrusting a finger into a leaking dike, held back a flood and saved his town. This time, it was Daryl Branscombe, a private citizen in sensible footwear, who came to the rescue. After Susan Holt’s Liberals withdrew from the Wolastoqey land claim case, New Brunswick’s Court of Appeal granted Branscombe intervenor status to defend the interests of taxpayers and private property owners. It is a moment that will rightly claim a place in the history books.
Susan Holt’s Liberals were poised to unleash a dangerous wind — leaving the rest of us to reap a devastating whirlwind. She piously repeats that upper courts have long recommended certain legal matters are better resolved at the negotiation table than in the courtroom. According to this narrative, aboriginal title is primarily about reconciliation, requiring a government-to-government commitment with First Nations. But slicing through all the self-congratulatory moralizing, reveals a tangle of dangerous fallacies.
Susan Holt almost gets it. For example, in the Delgamuukw v. British Columbia decision from 1997, Chief Justice Lamer wrote, “Ultimately, it is through negotiated settlements, with good faith and give and take on all sides…”
Here’s the problem: if Indigenous leaders know, or ought to know, that their claims are flatly contradicted by treaty terms, negotiations cannot proceed in good faith. And that’s exactly what’s happening here. Mi’kmaq and Wolastoqey leaders assert that the 1760–1761 Peace and Friendship Treaties established peaceful relations but never surrendered land or sovereignty. Their contention of “unceded territory” stands at odds with a close reading of both the historical record and case law.
The Wabanaki Confederacy— Mi’kmaq, Wolastoqey, Passamaquoddy, Abenaki, and Penobscot —aligned with France during the Seven Years’ War. When France lost, so did they. The Acadians were deported, Fort Louisbourg and Quebec fell, leaving local natives in a very bad way. With no more access to French weapons and supplies, they had little choice but to accept British rule, on British terms.
The 1760-1761 Peace and Friendship Treaties were not agreements between sovereign equals, but rather formal acknowledgments of British rule. In the “Articles of Submission”, natives explicitly recognized the British Crown as “the Rightfull possessor of the Province of Nova Scotia or Accadie” and pledged to “acknowledge his Said Majesty King Georges Jurisdiction and Dominion over the Territories of said Province of Nova Scotia or Accadie and make our Submission.”[sic]
There is no wiggle room here, this was a clear cut cession of land and authority. In return, natives were granted protection as British subjects, along with limited permission to hunt and fish. The province belonged to the Crown and was open for settlement, a fact as undeniable then as it remains today.
New Brunswick case law confirms such a straightforward interpretation, notably in R. v. Bernard (2003, New Brunswick Court of Appeal) and R. v. Marshall; R. v. Bernard (2005, Supreme Court of Canada), as already explained by the Honourable Justice Joseph Robertson.
British Columbia stands apart. There, aboriginal title indeed extends across unceded lands—territories never bound by treaty. There, the distinction between Crown vs Aboriginal title is not semantic; it cuts deeply into the lives of ordinary citizens.
On B.C.’s Sunshine Coast, the shíshálh Nation now holds authority over private dock approvals, enforcing strict rules—including the possible demolition of existing structures—and banning new dock construction altogether. Frustrated waterfront property owners face restricted access, plummeting property values, and a consultation process that offers them little meaningful say.
Meanwhile, in a quiet accord with the Líl̓wat and N’Quatqua First Nations, the B.C. government has restricted access to Joffre Lakes Park—closing key areas to non-Indigenous visitors year-round and imposing seasonal bans on them across the entire park. The official rationale invokes environmental stewardship and cultural respect. In practice, however, full access to a publicly funded park now depends, quite simply, on racial ancestry.
New Brunswick has far more at stake than its western counterpart. British Columbia is thirteen times larger, with 94 percent of its land controlled by the Crown—mostly remote wilderness—and can afford generous giveaways. Here, nearly half the province is privately owned, developed and cultivated over generations.
Meanwhile, 90–95 percent of Crown land in New Brunswick is tied up in private forestry leases, leaving barely five percent available for agriculture, cottages, mining, energy, and public recreation. Yet just two percent of the population now seeks effective veto power over both public and private land management, along with a disproportionate share of resource revenues.
Should New Brunswick, in an act of performative penance, adopt British Columbia’s precedent of clandestine negotiations—grounded on the pernicious notion of “unceded territory”—it will enshrine a caste order wherein governance no longer derives from majority assent, but becomes instead a birthright determined by racial lineage.
Just as to Hans Brinker before, citizens will owe a huge debt of gratitude to the vigilance of Daryl Branscombe.
Tom Mueller