By John Chilibeck, Local Journalism Initiative
FREDERICTON — Both sides battling over a big Indigenous title claim in New Brunswick blame the other for refusing to settle the case outside of court, a dispute that will likely create millions of dollars in legal costs.
During a break in proceedings last week, Madawaska Chief Patricia Bernard said the Wolastoqey Nation has always been willing to negotiate with the provincial government over its Aboriginal title claim.
She blames Blaine Higgs’s Progressive Conservative government for being inflexible.
“We don’t want to litigate but we have no choice,” said Bernard, whose First Nation in northwestern New Brunswick is one of six communities along the Saint John River, or Wolastoq, that launched the claim in 2020 for more than half of the province’s territory.
“Every time we litigate, it’s not for want of trying to negotiate. Because the province is just, like, ‘nope.'”
The Liberal and Green opposition parties have criticized the Higgs government for not engaging in settlement talks. Bernard said she tries to stay out of provincial politics and doesn’t normally advise her First Nation’s registered population of 377 who to vote for.
But this Oct. 21, when the provincial election is scheduled, will be different.
“On this subject, yes, I’ll ask them to vote in favour of the Wolastoqey. I don’t tell people to vote Liberal, I tell them not to vote Conservative.”
Premier Higgs fired back that Indigenous leaders were the ones who don’t want to negotiate.
“Chief Bernard wants to play politics with people’s rights,” Higgs said in an email to media. “We are only before the court asking for what the Wolastoqey have publicly promised several times.
“Their land claim needs to leave out the property of everyday citizens. We negotiated with them for over a year. Not only was our request refused, but they also added 25 private companies and NB Power to the claim. The very thing they said would never happen and that they would not do.”
Higgs said the court hearings could end tomorrow.
“The Wolastoqey simply need to consent to a court order that releases the land of everyday citizens and their right to use it, something which they have always maintained. I can’t explain why the Wolastoqey are in court objecting to their own position.”
The province says the private land in question has an assessed worth of $44 billion.
The Court of King’s Bench is continuing to hear preliminary motions this week before the case goes to trial. Experts say the litigation could take up to a decade to resolve.
The potential costs are enormous. Among the companies named in the title claim, most have lawyers at the proceedings, which the court has been holding at a conference room at the Fredericton Inn, allowing more space. There are also teams of lawyers representing the Wolastoqey, the provincial government and NB Power, and Ottawa.
No fewer than 18 lawyers are set up at tables to argue their points, with an overflow of legal workers in the public gallery, at any time numbering more than two dozen professionals in total. The billable hours for hours and hours of court time will be immense.
All sides agree the Wolastoqey have a legitimate case for Aboriginal title, a legally accepted principle in Canada that protects the Indigenous communal property rights over lands that were never surrendered to the Crown.
Josh McElman, the lawyer the Province hired to argue its case, described in court last month that the relationship between the Crown, or government, and the Wolastoqey was like a marriage in which there can’t be a divorce.
The question is over what a declaration of title would mean. The Wolastoqey Nation says it doesn’t want to get in the way of everyday New Brunswickers using their homes or businesses as they wish, and that it simply wants government compensation for giving away those lands.
It also wants a future say over how those properties might be used if the owners want to extract valuable resources, such as opening a strip mine.
In the case of the big 25 companies and Crown or public land, the Wolastoqey wants the territory returned.
Bernard, a lawyer herself, said her side began preparing the groundwork in 2013, when it held talks with a couple of legal firms about options. It ultimately picked OKT, one of Canada’s leading Indigenous law firms, with offices in Toronto and Yellowknife. The firm’s lead lawyer in the case, Renée Pelletier, grew up in Nova Scotia but her father’s side is originally from the same First Nation as Bernard’s.
“Since I was a child, I was told, we were never defeated, we never gave up the land, we never surrendered it or ceded it,” Bernard said. “It didn’t just happen all of a sudden one day. Over time, an awareness among the Wolastoqey and a lot of Indigenous people came about. We’re saying, ‘Wait a minute, that’s not right. Let’s do something about it.’Once you reach that point, when do you start an action?”
The chief said she appreciated McElman’s analogy about a marriage with no prospect of divorce, binding the two peoples together. It’s less paternalistic, she said, than the province’s normal approach.
“You want to work on a nation-to-nation basis. This is a marriage where you can’t get a divorce. That’s a better analogy than a parent-child relationship. So I saw that analogy a little bit of movement in their understanding about what the relationship is. Because you don’t sign a treaty with your child, you do it with an equal, nation to nation.”
Reporters asked Mike Holland, the minister of Indigenous Affairs and natural resources, to comment, but he demurred.
“I will continue to work with First Nations on all matters that require my attention as Minister of Indigenous Affairs,” he said in an email. “At this time there are ongoing legal proceedings taking place and I cannot comment on any of these issues as they are before the court.”
The Daily Gleaner