A retired businessman who says the Holt Liberal government has abandoned private citizens in a landmark case to decide Aboriginal title has convinced New Brunswick’s highest court to let him take part in the proceedings.
Daryl Branscombe, who owns EMS Enterprises Inc., a real estate holding company, petitioned the New Brunswick Court of Appeal when he read in the newspaper that the Liberal government had decided not to pursue a defence on behalf of private owners whose properties are within the title claim filed by the Wolastoqey Nation of New Brunswick.
“There didn’t seem to be anybody else taking this on,” Branscombe told Brunswick News in an interview Friday. “Normally, it would be the Crown, or the province, but it chose to do negotiation rather than litigation. And I just felt this was too important to negotiate because the public wouldn’t even know what’s being negotiated.
The claim area is for more than half of the province’s territory on its western side, encompassing more than 40,000 square kilometers, about the same size as the entire country of Switzerland. Tens of thousands of people hold private property there.
The former Higgs Progressive Conservative mounted a robust defence, stating title to private property owners was at risk.
‘But the Wolastoqey Nation has consistently argued that most private property owners, excluding large ones they call industrial defendants, mostly big timber and pulp and paper companies – are “
strangers to the claim” and have no reason to worry about losing their homes or businesses.
Liberal Leader Susan Holt promised last year during the election campaign she would try to take the case out of the courts, arguing it was a waste of taxpayers’ money, and would instead try to come to terms with the Wolastoqey Nation in New Brunswick.
The nation is made up of six Indigenous communities along the St. John Riber – also called the Wolastoq in their language – and its tributaries. The leaders of these 6,0000 or so people say they never ceded their land to European colonizers.
“The claim that Wolastoqey Nation has made is extreme,” Branscombe said. “It seems to me, if you’re laying a claim to 4.1 million hectares of land, you must prove that you owned it. And the burden of proof should be on the plaintiff, the Wolastoqey Nation. I started asking myself, who’s looking after the private citizens? There didn’t seem to be anybody. “I figured somebody had to do it.”
The three-judge panel, made up of Justices Ernest Drapeau, Kathleen Quigg and Brad Green, granted him intervenor status of a hearing on Thursday.
The court clerk’s office confirmed to Brunswick News the judges made an oral decision granting the status.
After hearing arguments, the judges also permitted Elsipoglog First Nation to participate as an intervener, along with the other eight Mi”Kmaq nations in New Brunswick represented by the nonprofit organization MTL, or Mi’gmawe’l Tplu’taqnn Inc.
“The Mi’kmaq, who live in communities along the province’s eastern coast, have filed two separate Aboriginal title claims for more than half of New Brunswick, some of it overlapping with the Wolastoqey claim.
The legal team representing three Wolastoqey Nation argued against Branscombe being allowed to take part as an intervener.
“We are of the view, and as the chiefs have always maintained, that the Wolastoqey’s claim doesn’t impact people who are not named.” René Pelletier, a partner at OKT law firm, told Brunswick News.
“But we appreciate that the court was trying to balance interests and wanted to hear different perspectives. This is an important issue.”
She said she was pleased the judges put restrictions in place, limiting the interveners to a written brief of 20 pages or less, which has to be submitted within about a month’s time, well ahead of the next hearing on June 17.
“The concern is, how is Mr. Branscombe different than any private property owner? If they all get let into the case, this truly becomes unwieldy,” Pelletier said. “I certainly don’t think that allowing Mr. Branscombe in will mean everyone else will be allowed in. EMS pointed out in its submission that no other private party was seeking intervener status, and I think that helped its cause.”
The Wolastoqey Nation did not object to the Mi”kmaq interveners.
Pelletier pointed out that three industrial defendants that operate on freehold land in the title claim area—J. D. Irving, Limited; Acadian Timber; and H J. Crabbe and Sons’ are the parties that had successfully convinced the Court of Appeal in the first place that their motions should be heard, challenging a lower Court ruling.
“We see that as something those communities should have a chance to be heard on,” Pelletier said.
Brunswick News tried to reach MTI and Arren Sock, the chief of Elsipogtog, on Friday, but didn’t hear back before deadline.
John Chilibeck