J.D. Irving, other companies want to appeal decision that releases them from land claim
JDI appeal says original claim against them should be dismissed or they should be reinstated as defendants
Normally when defendants are released from a court case, it's considered a win.
But more than a dozen New Brunswick companies previously named in an Aboriginal title claim aren't happy with the judge's decision to remove them.
Launched in 2021, the lawsuit asserts title to more than half of New Brunswick.
So far, three notices of motion for leave to appeal have been filed, claiming Justice Kathryn Gregory erred in her decision to remove the industrial defendants in the title claim by the Wolastoqey Nation.
In a decision dated Nov. 12, Gregory said the fight for the defendants' land should be between the Wolastoqey Nation and the Crown. She wrote that although she was releasing the industrial defendants, their land was still on the table. She said if the land was to be returned, it would have to be done by the Crown.
So far, appeal requests were filed by Acadian Timber Limited, H.J. Crabbe & Sons, Ltd., and one referred to as the JDI intended appellants, which represents 13 companies, including J.D. Irving Ltd.
Lawyers for Acadian Timber and H.J. Crabbe & Sons declined interview requests, while a spokesperson for J.D. Irving declined a similar request.
According to the JDI appeal, they're looking for one of two things — for the original claim against them to be dismissed or that they "be reinstated as proper party defendants to this action with full rights of participation therein."
The JDI court document said Gregory's decision to remove all industrial defendants from the case "was neither requested by the JDI Appellants nor contemplated by the Rule pursuant to which their motion was brought."
Removing them leaves them without a voice in the fight over land that they own, according to their notice of motion.
The JDI appellants said it is unfair to allow the Wolastoqey Nation to "maintain a claim" of Aboriginal title against their property "while, at the same time, excluding the JDI Appellants from participating in this action thereby depriving them of their right to be heard and to make submissions regarding their fundamental property rights."
The notice filed by H.J. Crabbe & Sons said the judge erred by not allowing the company to defend its property from the plaintiffs' claim, thereby depriving them of "a fair hearing, natural justice, fundamental justice and due process of law."
Wolastoqey Nation response
When contacted Monday about the appeal, a spokesperson for Wolastoqey Nation in New Brunswick emailed a response that stated, "Justice Gregory's decision reinforces our position that negotiation between the Wolastoqey Nation and the Crown is our preferred approach in that it can best address our Rights and everyone's interests."
The statement goes on to say that the communities "hope to pursue negotiations with the province while this litigation proceeds.
"We do not want these recent tactics to get in the way of making progress in discussions with the Minister on our Title."
The Wolastoqey 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.
It wants title over all of its traditional territory — nearly 253,000 parcels of land — and the outright return of about 5,000 properties held by the Crown and the defendants specifically listed in the claim, most of which are privately held companies involved in the forestry industry.
The chiefs of Wolastoqey communities have always maintained they are not trying to take back the property of individual homeowners.
Treaty veteran doubts court would take private land
"I know people are worried about this case," said Jean Teillet, a retired lawyer and a treaty negotiator for nearly 30 years for First Nations.
Jean
Teillet, a treaty negotiator for First Nations for nearly 30 years,
doubts the courts would ever take away privately held land. (CBC)
"I think that our courts would be very, very hesitant to overturn the Canadian land ownership system. In fact, I doubt they would do it. I don't think they would ever go that far," said Teillet, who appeared before the Supreme Court of Canada on 12 separate Indigenous rights cases over the years.
She doesn't think the courts would "allow the expropriation of — or the overturning of — our entire property system in the country. It would create chaos and I don't think that's ever going to happen."
Teillet said there are many examples of Crown land being returned to Indigenous communities, but not privately held land.
"So again, I can't see the government telling them that they have to sell their land," said Teillet, unless it's a "willing seller, willing buyer."
"There's no expropriation of private land going on in treaty negotiations."
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Wolastoqey chiefs claim 'enormous victory' in title claim against province
Private companies removed from suit but their land isn't off the table
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.
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.
Sitansisk Chief Allan Polchies says the talks with Premier Holt and Indigenous Affairs Minister Keith Chiasson were 'hopeful.' (Submitted by the Wolastoqey Nation in New Brunswick)
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."
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Irving-owned company settles in Wolastoqey title claim suit
Strescon reaches deal with Wolastoqey Nation to fund scholarship program in trades
One of the many industrial companies named in a large title claim from the Wolastoqey Nation in New Brunswick has been removed from the lawsuit.
Chief Patricia Bernard of Madawaska First Nation says a deal has been reached with Strescon, a Saint John-based concrete company and a subsidiary of John Irving's Ocean Capital.
Bernard said the company offered to provide a bursary scholarship for Wolastoqey students in the trades through New Brunswick Community College. The scholarship has a value of $120,000, and two students annually would be able to receive a bursary of up to $5,000.
"So when the opportunity arose, we jumped at it and said certainly that's our whole goal, is to try and settle these issues and not spend millions of dollars in court," Bernard said in an interview with Information Morning Fredericton.
Bernard said Strescon came forward over a year ago to settle, and the deal, the agreement, was reached after negotiation through lawyers.
"It was very simple and easy because I think they really took the time to understand the reconciliation portion of it, and the importance of education and giving back not only to the First Nations, but to the province as well," she said.
Launched in 2021, the lawsuit asserts title to over half of New Brunswick and specifically names the federal government, N.B. Power, and six predominantly forestry companies and several of their subsidiaries.
The
title claim covers more than half of New Brunswick, but Wolastoqey
leaders have said they are not going after individual landowners. (Wolastoqey Nation in New Brunswick)
The Wolasotqey Nation says it never gave up title to its land in the watershed of the St. John River, also known as Wolastoq, when Peace and Friendship Treaties were signed with the British Crown in the 18th century.
Leaders of the communities have previously said the title claim is not about displacing people now living on any lands subject to it, but rather about consultation and negotiating new deals with major industrial companies operating in the province.
Provincial court documents show that Strescon was dropped from the suit on Oct. 21. There are still 26 defendants that remain, including N.B. Power, Irving Oil, J.D. Irving Ltd. and other forestry companies.
Bernard said there have been expressions of interest from some of the other defendants to settle, but no other agreements have been reached yet. She added that this agreement does not affect any other Irving-owned companies, which would have to resolve their own stakes in the claim.
"It is our hope that this will set an example for other companies to come forward and find out what we can do together as parties to this claim and how we can reconcile," she said.
Bernard said the point of the lawsuit is "not out to get people," and Strescon "came forward in a positive way."
"We're very open to creative ways of resolving this."
Bernard also said she's looking forward to working with the new Holt government, which made settling the land claim out of court a point in the party's recent provincial election campaign.
"We have meetings lined up to meet with the new cabinet and see if they do put action to their words that they said in their campaign."
This past summer, eight Mi'kmaw communities launched their own title claim, essentially bringing the entire province geographically under the two title claim lawsuits. Elsipogtog First Nation filed its own title claim in 2016.
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With files from Information Morning Fredericton
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