A New Brunswick judge has ruled that Aboriginal title can be declared over privately owned land — even land they’re not fighting to reclaim, according to a recent decision by the Court of King’s Bench.
Justice Kathryn Gregory also ruled that land owners can’t be directly sued for the return of land. Instead, the fight is with the Crown.
“I acknowledge such a declaration impacts everyone, Crown and non-Crown, but the legal declaration itself is against the Crown only. It is not declared against private parties as they hold no constitutional status as against the Aboriginal group,” wrote Gregory.
As a result, she dismissed the case against all of the “industrial defendants,” including Irving Oil and J. D. Irving, leaving only the Crown as represented by the provincial and federal governments.
Launched in 2021, the lawsuit asserts title to more than half of New Brunswick.
The Wolasotqey Nation said it never gave up title to its territorial land when Peace and Friendship Treaties were signed with the British Crown in the 18th century.
Justice Kathryn Gregory has ruled Aboriginal title can be claimed over land in New Brunswick, pushing the Wolastoqey Nation land claim lawsuit forward. She also dropped private companies from the case, leaving the Crown as the only defendant. The Wolasotqey Nation says it never gave up title to its territorial land when treaties were signed in the 18th century.
While the claim is for title over the entire traditional territory of the Wolastoqey, they’re not fighting for ownership of all the land, said Chief Allan Polchies of Sitansisk First Nation in Fredericton.
“We are not seeking any lands back from private individuals, homeowners, cottage owners, farmers. We’re only interested in Crown lands and lands owned by the industrial companies, which we specifically listed in our claim.”
Essentially, the claim is for the unused or undeveloped land — roughly 5,000 properties — to be returned to the Wolastoqey.
As for getting title over the entire territory, Polchies said it would give the Wolastoqey more say over how the land is used.
“For instance, they would need our consent before making certain decisions on the lands. For example, if they were doing a mine or any fracking or any forestry, it’d be a co-decision.”
‘Let us face it, we are all here to stay’
Gregory began her 40-page decision with a line from a 1997 Supreme Court decision in a British Columbia case.
“Let us face it, we are all here to stay.”
In her decision, Gregory described the essence of the case as seeking “a declaration of Aboriginal title over a large swath of land amounting to more than 50% of the land in the province (283,204 separate parcels of land).”
“The majority of the IDs [industrial defendants] are privately held companies engaged in the business of growing, managing, harvesting and milling trees from their land,” wrote Gregory.
Although she dismissed the case against all of the industrial defendants, Gregory did say their land is still on the table.
“The Crown may be directed or ordered to use its expropriation powers” to return land to the Wolastoqey, she said.
While they’re looking for title to all property — whether publicly or privately held — the Wolastoqey chiefs have previously stated that they’re not after land where people reside.
National implications
On its website, the law firm representing the six Wolastoqey Nations in New Brunswick, Olthuis Kleer Townshend LLP, said Gregory’s decision will have “implications across the country.”
“To date, no case has clearly answered the question of whether Aboriginal title can be declared over privately-owned, fee simple lands,” states the case summary written by three of the lawyers involved.
“This judicial acknowledgement that privately-owned lands may need to be returned to Indigenous Nations is a significant victory. It confirms that reconciliation may require remedies in the form of land back, rather than simply monetary compensation.”
Gregory’s decision takes the burden off private companies to negotiate land claims and puts it squarely on the Crown.
“Indeed, it is the nature of the sui generis relationship between Aboriginal groups and the Crown, that the latter stands as a buffer, where appropriate, and a conduit, where necessary, between Aboriginal and settler societies,” wrote Gregory.
New government has met with Indigenous leaders
Polchies said the Wolastoqey people are hopeful, given the change of government, since relations with the Higgs government were often rocky.
“We are certainly in a crossroads right now with the new government,” said Polchies.
On Monday morning, the six chiefs of the Wolatstoqey met with Premier Susan Holt and Indigenous Affairs Minister Keith Chiasson.
Polchies said the priority is to sign a new tax agreement with the province, but that Monday’s talks touched on a number of issues.
“So the conversation and the meetings that we’ve been having with the premier and the minister certainly have set a good tone, and we’re very hopeful for the future.”
Chiasson, meanwhile, described Monday’s meeting as a get-to-know-each-other session.
“We really want to build bridges. We have to rebuild that confidence with First Nations.”
He said the judge’s decision is now with the attorney general’s office, and he’s waiting for more information about the impact and how the province will proceed with the case.
Chiasson said the Wolastoqey chiefs have “always been clear on the fact that they would prefer negotiation with government instead of actually having to end up in the courts.”
He said his department is “very receptive to that message.”
As for whether the government would be willing to agree to give the Wolastoqey title over their traditional territory, Chiasson said, “We’re not there yet.”
