New Brunswick cabinet ministers seem to be on a sustained campaign to create division between non-Indigenous New Brunswickers and the Indigenous people of New Brunswick. Why? Because the Wolastoqey Nation has invoked their constitutional rights to seek legal confirmation of their Aboriginal title to the watershed of the Wolastoq, known to the non-Indigenous population as the Saint John River.<\/p>\n
This campaign, on the heels of the provincial government\u2019s refusal to launch a public inquiry into systemic racism in the justice system and a unilateral announcement that tax-sharing arrangements with First Nations would end seems to be the latest in an approach to Crown-Indigenous relations in New Brunswick that is the polar opposite of reconciliation.<\/p>\n
The government\u2019s attack on the Wolastoqey title claim began on October 14, when Attorney General and Minister of Justice Ted Flemming issued a directive<\/a> to all government officials instructing them to not refer to New Brunswick as the \u201cunceded\u201d or \u201cunsurrendered\u201d territory of the Wolastoqey (previously commonly known as the Maliseet), Mi\u2019kmaq and Peskotomuhkati (previously commonly known as the Passamaquoddy) because of the Wolastoqey claim.<\/p>\n Many people and organizations<\/a>\u00a0including the RCMP have, in the aftermath of the leaked directive, reiterated that New Brunswick is situated on unceded and unsurrendered Indigenous land. The Canadian Union of Public Employees<\/a> stated that it will file a grievance if any of its members are disciplined for making land acknowledgements that are inconsistent with Flemming\u2019s directive. The satirical online newsite Walking Eagle News mocked Flemming\u2019s memo. One story\u2019s headline was: \u201cNew Brunswick hiring wizard<\/a> amid fears land acknowledgements can magically return lands to First Nations: leaked memo.\u201d<\/p>\n The six chiefs of the Wolastoqey Nation in New Brunswick<\/a> explained that \u201c(w)e were forced to file a title claim because our rights continue to be ignored by GNB [the Government of New Brunswick]. Now, in response to this, the province seeks to further trample our rights and erase us from the history of this province.\u201d They also noted that \u201cThe Wolastoqey Nation is not seeking the return of all of the land in its traditional territory through the title claim. We made it very clear when giving the Crown notice of our claim in October 2020 that we were not looking to displace homeowners in New Brunswick.\u201d<\/p>\n Shifting the relationship between provinces and First Nations toward diplomacy<\/a><\/p>\n Indigenous self-government in Yukon holds lessons for all of Canada<\/a><\/p><\/blockquote>\n At the end of October, Flemming wrote an opinion piece<\/a>, in which he stated that he wanted \u201cto take some time to lay out all the details to provide the public with more information about our government\u2019s perspective.\u201d It is unfortunate that he did not actually provide the public with all of the details of the Wolastoqey claim.<\/p>\n Flemming was right that the Wolastoqey Nation sought legal recognition of their Aboriginal title to all of the lands, rivers, streams, lakes and airspace of the Wolastoq watershed and that this constitutes about 60 per cent of the territory of what is, today, New Brunswick. He inappropriately sought to create fear among New Brunswickers, though, by suggesting that private residential and commercial property owners will also be affected, as privately held property was not being excluded from the Aboriginal title claim.<\/p>\n Flemming, however, left out some key details about the Wolastoqey Nation\u2019s Aboriginal title claim. The first is that the claim seeks a declaration from the court that the Wolastoqey have Aboriginal title to their traditional territory. A declaratory judgment does not actually alter anything out in the world; it is merely a statement from the courts of one\u2019s legal rights. It may be useful in securing a negotiated resolution to a conflict because governments are expected to respect court rulings, but it is not self-fulfilling.<\/p>\n Secondly, a declaration that the Wolastoqey have Aboriginal title to the Wolastoq watershed could apply to privately owned property, but it is not certain that it would have any direct effect on private property owners. Canadian courts have not yet addressed the issue of how Aboriginal title affects private ownership of Aboriginal title lands. Flemming, thus, cannot know whether this claim will have any effect on private property owners.<\/p>\n All property that is privately owned in Canada is subject to an underlying title<\/a>. If the underlying title is not Aboriginal title, it is held by the Crown. Despite this, private individuals and corporations can buy and sell property. The Crown using its underlying title to take control of privately held land through expropriation is extremely rare.<\/p>\n There is no reason to imagine that just because the underlying title to the Wolastoq watershed is found by the courts to be Aboriginal title, rather than Crown title, private property owners in the Wolastoq watershed would be any more at risk of having their property taken away from them. After all, the Wolastoqey clearly said when they first filed their claim that they are not seeking to displace non-Indigenous homeowners with their action; they are just seeking to affirm that they have underlying title.<\/p>\n In an attempt to settle the fears of New Brunswickers, the Wolastoqey Nation in New Brunswick amended its claim in November. The amended claim<\/a> makes it clear that the Wolastoqey are seeking a declaration of their Aboriginal title to the Wolastoq watershed and compensation from the Crown for the infringement of that title but are only seeking possession of Crown lands and the lands owned by specific large forestry companies and NB Power.<\/p>\n Despite this, at a December 1st<\/sup> news conference<\/a> with Minister of Natural Resources and Energy Development Mike Holland and Minister of Aboriginal Affairs Arlene Dunn, Premier Higgs suggested that the new statement of claim does not \u201cprotect the rights of all New Brunswickers\u201d and that the Wolastoqey\u2019s legal documents do not provide that reassurance.<\/p>\n The statement of claim<\/a> however is very clear. The Wolastoqey Nation seeks \u201cno relief against fee simple holders not named as Defendants who hold fee simple in the Traditional Lands (\u2018Strangers to the Claim\u2019).\u201d<\/p>\n Higgs also asserted that the Wolastoqey want to \u201cown\u201d and \u201cperhaps even operate the businesses that currently own and operate on those lands.\u201d Aboriginal title, however, would never automatically result in the businesses of third parties being transferred to the Aboriginal title holders. This is a misreading of what Aboriginal title means. An Aboriginal group cannot \u201ctake control of land that is privately owned,\u201d as the premier claimed. This is pure fiction.<\/p>\n Time to put action behind university land acknowledgements<\/a><\/p>\n Reconciliation needs to address Canada\u2019s history of spiritual abuse<\/a><\/p><\/blockquote>\n The premier went further in the December news conference by suggesting that the title claim \u201cstrikes at the heart of our forestry industry\u201d while raising concerns about environmental responsibility. A more equitable and just sharing of resources in Canada is at the heart of what our Constitution\u2019s recognition of Aboriginal rights is all about. The Wolastoqey have stronger traditions of, and greater knowledge about, protecting their lands and resources than do federal and provincial governments. Any attempt to instill fear of the Wolastoqey among workers in the forestry industry, is simply racism.<\/p>\n Admittedly, the claim creates uncertainty<\/a>. This is true of all litigation. As Aboriginal law scholar John Borrows<\/a> points out: \u201cThe Crown cannot give to others what it does not itself possess.\u201d Thus, private ownership that has its source in Crown title is not secure on lands that are, in fact, Aboriginal title lands, as the Crown itself lacks underlying title. It is really the Crown that has created the uncertainty by attempting to give private parties that which it does not possess itself.<\/p>\n Borrows makes the wise observation that \u201cAs far as possible, courts, Parliament, legislatures, and Indigenous governments must do all they can to ensure no-one is unjustly deprived of the benefits of their long-settled expectations regarding land use and occupation \u2013 and this goes for both Aboriginal title holders and third-party or private land interests.\u201d<\/p>\n If one party to a dispute is not prepared to engage in good faith negotiation to achieve a just result, however, litigation may be the other party\u2019s only option. Unfortunately, this is the position in which the Wolastoqey find themselves.<\/p>\n