Three Indigenous groups in New Brunswick have launched separate legal actions against the provincial and federal governments.
The Mi’kmaq and Wolastoqey First Nations are pursuing a title case and title claim, respectively, while the Peskotomuhkati Nation is focused on a right-to-negotiate case regarding their ancestral lands.
Peskotomuhkati Title Claim
Paul Williams, the lead negotiator and legal counsel at Peskotomuhkati, says they are taking a different approach to their title claim compared to the type of legal action made by the Mi’kmaq and Wolastoqey.
“The other two First Nations who have communities in New Brunswick have gone for a more expensive, longer-term form of going to court. We’re going for something faster,” Williams says.
“They are going for something that will give them a declaration of title. In the end, we’re going for a requirement of good faith negotiation, hopefully with court supervision,” he explains.
Williams says the Peskotomuhkati discovered a year and a half ago that the New Brunswick government had no intention of negotiating Aboriginal title to the land despite having signed the Negotiation Framework Agreement.
The negotiation framework agreement, signed in October 2019, was a significant step in the ongoing discussions between the Peskotomuhkati Nation, the Government of Canada, and the Government of New Brunswick. The agreement laid a foundation for addressing complex matters related to Aboriginal rights, title, and governance within Peskotomuhkati traditional lands and waters, where their presence dates back thousands of years.
The focus of the agreement involved reaching a mutual understanding regarding land and resource use while respecting the historical and cultural significance of Peskotomuhkati’s ties to their land and waters. The agreement sets the stage for further discussions around the legal status and effect of treaties, as well as the collective goal of addressing longstanding issues through cooperation and negotiation.
Williams says they gave the province of New Brunswick a notice of a constitutional question on whether the province had an obligation to follow through on the negotiation agreement. This led to a case management call on October 3, 2024.
The next step in the process includes the province filing its position on the matter to the court of King’s Bench in either Fredericton or Saint John by December 15 and the Peskotomuhkati responding to the province by January 15, 2025.
“Setting a court date, given the crowded condition of the court calendar, could take several months after that,” Williams says. “The judge said she’d ask the court co-ordinator for dates, but they’d be five or six months after January 15.”
Wolastoqey Aboriginal Title Claim
Renée Pelletier, a partner from Olthuis-Kleer Townshend LLP, who is representing the Wolastoqey Nation’s Aboriginal title to their territory in New Brunswick, said the underlying Aboriginal title was not dealt with by the British Crown when it settled in Canada.
“Those parts of Canada where there aren’t such treaties that deal with the underlying title, Indigenous people can go to the court and ask the court for ownership of their traditional territories,” Pelletier explained.
The six Wolastoqey First Nation communities (Neqotkuk, Madawaska, Woodstock, Bilijk, Sitansisk and Welamukotuk) launched their claim against the federal and provincial governments and several Industrial defendants in 2021.
Pelletier says there hasn’t been much progress due to several procedural motions in court to have the claim struck, with the latest round of motions occurring in Fredericton in April.
Pelletier says the defendants put forward four motions. The first one was by the province to strike a portion of the Wolastoqey claim over the land they don’t want to be returned, and the other three motions were by forestry companies, who argued that the Wolastoqey couldn’t get their land back as the lands were privately held by them.
“The Wolastoqey mentioned while they want Aboriginal title over their entire territory, the only land they want returned is the land owned by the claim,” Pelletier says.
Mi’kmaq Title Claims
Eight out of nine Mi’kmaw communities in New Brunswick (Nataoganeg, Eel River Bar, Fort Folly, Buctouche, Indian Island Band, Metepenagiag, Esgenoopetitj and Pabineau) have also launched a title case against four defendants: the Federal Crown, the Province of New Brunswick, the New Brunswick Power Corporation, and the Regional Development Corporation Chancery Place.
The ninth Mi’kmaw community, Eslipogtog First Nation, launched its own title case back in 2016.
Derek Simon, a lawyer for Burchell Wickwire Bryson, who is representing the eight Mi’kmaq communities, says they are taking a slightly different approach compared to Wolastoqey’s title claim.
“I think that, unfortunately, there’s been a lot of misinformation quite frankly spread by the province about the Wolastoqey claim. They have mischaracterized the nature of treaties and historical evidence,” Simon says.
“We certainly hope that’s something that’s not going to happen in our case, but if they do, we will respond and make every effort to ensure that the public is properly informed about what this case is all about,” he adds.
Simon says the misinformation is seen on the provincial website, where they take certain excerpts from the treaties and highlight them.
“They don’t talk about all the case law that has come since then that has interpreted those treaties and has made very clear that they were not land cession treaties. We have numerous court decisions that confirm that the Peace and Friendship Treaties were not land cession treaties,” Simon explains.
“But, if you read that website, you come away with the impression that they are land cession treaties because they’ve selectively chosen certain wording and interpreted it in certain ways and completely ignored the case law at this point,” he says.
The Mi’kmaq title case aims to get back the underlying Aboriginal title that the crown holds over their territories. The Statement of Claim mentions the declaration of Mi’kmaq title over the Crown’s underlying, or allodial, title on fee-simple landholders and industrial freehold land (unique to New Brunswick).
Simon explains the Mi’kmaq have no interest in interfering with private property owners but rather get the allodial title that the crown already holds over all the lands in New Brunswick.
“Fee-simple property, or private property, is kind of like a tablecloth sitting on top of a table. Underneath, you can’t see it, but underneath that is the surface of the table, which is the crown’s underlying title, “ Simon explains.
Simon says through this case, the Mi’kmaq in New Brunswick are hoping to get some compensation. He says the Mi’kmaq have seen no revenue from the crown’s resources derived from their lands while turning some of the crown lands into private lands.
“For decades, if not centuries, the Mi’kmaq have largely been reduced to spectators in their homeland, watching as others, kind of, derive the benefit from their territory and that it’s time for that to change,” Simon says, quoting Elder Gordon LaBillois of Mi’gmawe’l Tplu’taqnn Inc.(MTI)
Discussions taking place on overlapping of title claims
The Mi’kmaq, Peskotomuhkati, and Wolastoqey belong to the Wabanaki Confederacy, which has led to overlapping areas in their respective title cases. Simon says there are discussions between the leaderships of both nations on how to resolve that overlap.
“We think they can be resolved through dialogue between the nations, and we feel like we’re making good progress,” Simon says.
Williams says while there has been dialogue between nations, the Wolastoqey claiming the Passamaquoddy land has “injured” their relationship.
Pelletier says she is looking forward to the next steps of the Wolastoqey case.
“We are starting to do in-community meetings, gathering information and talking to elders while we look forward to hearing the decision on the motions,” Pelletier explains.
The Tŝilhqot’in Title Case in British Columbia has so far been the only case in Canada that has awarded Aboriginal title to an Indigenous community.
Pelletier says this case could set a precedent for any communities that fall under peace & friendship treaties, especially in Atlantic Canada.
“The biggest issue in this case that is different from the precedent that was set in Tŝilhqot’in Title Area is the question between Aboriginal title and privately held land,” Pelletier says.
“If Wolastoqey are able to make a claim to land held by forestry companies, that could open doors for other nations that had their territory used without consent for resource extraction,” she adds.
