First Peoples Law Report: The Penticton Herald – The owners of New Brunswick’s big timber companies are likely breathing a sigh of relief after a judge presiding over a large Indigenous title claim ruled in their favour on an important legal question.

In a decision issued Feb. 1 and obtained by Brunswick News, Justice Kathryn Gregory of the Court of Kings Bench in Fredericton upheld a motion filed by three industrial defendants asking that she strike the request of the six Wolastoqey Nations in New Brunswick to issue certificates of pending litigation against the thousands of acres of land they use for commercial timber operations.

Those certificates, if issued, would have made it very difficult for the defendants named in the title claim to keep running timber operations, particularly if they were seeking business loans, which require collateral.

The defendants in the case, which include J.D. Irving, H.J. Crabbe and Sons, Acadian Timber, Irving Oil, AV Group and Twin Rivers, own more than 5,000 parcels of land that are part of the title claim, which the judge described as a “behemoth,” of more than half of the province’s territory, or some 16,500 total parcels.

She also warned “this is not a routine or ordinary litigation” and it will likely take many years to resolve.

The lawyers for the Wolastoqey say they want to have back what is rightly and legally theirs after being dispossessed by settlers over more than two centuries.

But on the issue of the latest legal motions before her, Gregory ruled in favour of the three companies, J.D.I., Acadian and H.J. Crabbe, which brought a motion before her in December. That hearing, in Saint John, took three days in two interlinked courtrooms, involved 15 lawyers and included “fulsome argument” from all sides, according to the judge.

In her decision, Gregory said that the New Brunswick legislature did not consider the concept of Aboriginal title, which pre-dates European arrival, when it created two laws dealing with land transactions in the province, the Land Titles Act and Registry Act.

“Given the incompatibility of the nature of Aboriginal title with the stated object, purpose and language in both acts, I conclude that the Legislature did not intend to include Aboriginal title in its references to ‘interest in the land’,” Gregory wrote in her decision. “Whether in the spirit of reconciliation, as recommended by the Supreme Court of Canada, the Legislature should consider amendments to its legislation to include Aboriginal title is not for this Court to contemplate or consider.”

Gregory went through the history books to come up with her findings, relying upon an article written 64 years ago by Gerard LaForest, who at the time was the dean of law at the University of New Brunswick and not yet a Supreme Court judge.

In the article written in 1960, La-Forest traced the history of the province’s Registry Act, created by the provincial legislature, which sets out the rules for owners to sell their land parcels and titles.

She also referred to case law when it came to the Land Titles Act, relying on a 2017 decision that set out in great detail the background to and purpose of the system in New Brunswick.

The judge rejected a motion filed by the Wolastoqey lawyers that if she would not order certificates of pending litigation, the timber companies should provide some other warning notice to prospective land buyers that their parcels were subject to a big title claim. She said what the plaintiffs were requesting was in effect certificates of pending litigation, just by another name.

Gregory added that it would not be practical for the companies to send potential buyers a claim that runs in excess of 500 pages and whose various motions and pieces of evidence included a 2,700-page record. In any event, she said it was the responsibility of the firms to inform potential buyers of what was going on, otherwise they risked being slapped with a future lawsuit.

But she added they could decide on their own how they would inform such parties.

In a temporary win for the plaintiffs, she rejected the defendants’demand that she order the Wolastoqey Nation to pay court costs. Gregory said such a decision would be made later, when other issues within the lawsuit are resolved.

Political firestorm

The title claim has whipped up a political firestorm.

Premier Blaine Higgs says the six Indigenous communities that dot the Wolastoq, widely known as the St. John River, are after everyone’s private land, including their houses and businesses.

His warning coincided with an order from Attorney General Ted Flemming in 2021 that government employees could no longer make Indigenous land or title acknowledgements – the kind that have become the norm at public events such as business forums or cultural festivals – because of the ongoing litigation.

But the statement of claim does not specifically say the First Nations are seeking ownership of people’s homes and businesses. Instead, the First Nations want government compensation for most other private properties, without stating how much.

The Opposition Liberals and Greens argue the litigation is a waste of time and money, and the Progressive Conservative government would get further ahead if it sat down and negotiated with the First Nations.

The Mi’kmaq of eastern New Brunswick have made a title claim to the other half of the province, with some of the territory overlapping with the Wolastoqey claim, but they have never tested it in court. J.D. Irving, Acadian Timber and H.J. Crabbe and Sons declined comment on the latest ruling.

The Wolastoqey Nation issued a statement from Chief Ross Perley of Neqotkuk (Tobique First Nation).

“We diligently tried to ensure that anyone looking to purchase land that we have claimed from the industrial defendants would be formally advised of our litigation,” Chief Perley said. “Instead, it will be up to them to inform any potential buyers on the title status of land to be sold. This is not ideal but at least the need has been publicly acknowledged.”

The Indigenous leader said the First Nations hoped the litigation would proceed with a measure of decorum in what has been a highly contested battle. “With this procedural hearing behind us, we hope to be able to push forward on having the question of our Aboriginal title resolved.”

John Chilibeck, Local Journalism Initiative Reporter The Daily Gleaner

-with files from Adam Huras