The Wolastoqey Title Claim

This problem addresses the ongoing title claim by the Wolastoqey Nation its traditional territory encompassing much of modern day New Brunswick, along with the Province's developing response to that claim.

In 2021, the Wolastoqey Nation filed an original Statement of Claim against the Province of New Brunswick and other parties, including seven of the largest forestry companies in the province and their subsidiaries, for a declaration of Aboriginal title–i.e., constitutionally recognized and affirmed land rights–in their traditional territory, for recovery of certain lands held by the companies, for damages and compensation from the Crown, and other remedies.

For our problem this week, please review the relevant portions of the Statement of Claim, reproduced below. Then read carefully “The Wolastoqey Aboriginal Title Claim: Information for the public” statement posted by the Province of New Brunswick on its website.

1. In what ways is the reasoning of the various courts in the St. Catherine’s Milling case reflected in Government of New Brunswick’s public statement? Why does this matter, given that the common law doctrine of Aboriginal title has changed significantly in the century or more since St. Catherine’s Milling was decided (as we will see later in the course)?

2. How does the concept of “Aboriginal title” compare to the concept of title in reserve lands as defined in the federal Indian Act, RSC 1985, c I-5? To the concept of title in Anglo-Canadian law in other contexts?

Statement of Claim #

1 The Plaintiffs, Wolastoqey Nation at Matawaskiye (Madawaska Maliseet First Nation), Wolastoqey Nation at Neqotkuk (Tobique First Nation), Wolastoqey Nation at Pilick (Kingsclear First Nation), Wolastoqey Nation at Sitansisk (Saint Mary’s First Nation), Wolastoqey Nation at Welamukotuk (Oromocto First Nation) and Wolastoqey Nation at Wotstak (Woodstock First Nation), on behalf of all members of Wolastoqey Nation, claim:

(a) a declaration that Wolastoqey Nation has Aboriginal title to the lands, including the land, airspace, land covered by water, offshore and inshore water bodies, foreshore, rivers, lakes and streams, described in Schedule “A”, or to such portions thereof for which this Court may find the evidence sufficient (“Traditional Lands”);

(b) certificates of pending litigation for properties bearing the property identification numbers set out in Schedule “B”;

(c) damages and compensation from the Crown Defendants (as defined hereinbelow) for the Crown Defendants’ breaches of the Crown’s fiduciary obligations, and for the unlawful occupation, appropriation, removal of resources from, and infringement of, the Plaintiffs’ Aboriginal title over their Traditional Lands, including infringements arising from the Defendants and others being in occupation of the Traditional Lands without permission from the Plaintiffs;

(d) an Order of scire facias in respect of the properties bearing the property identification numbers set out in Schedule “B”;

(e) in the alternative to (d), an Order of ejectment and recovery of land in respect of the properties bearing the property identification numbers set out in Schedule “B”;

[…]

2 The Plaintiffs seek no relief as against fee simple holders not named as Defendants who hold fee simple in the Traditional Lands (“Strangers to the Claim”). The incidents of fee simple title enjoyed by Strangers to the Claim, including the incident of peaceable possession, are not placed in issue by the Plaintiffs. As outlined in paragraph 1(c), however, the Plaintiffs seek damages and compensation from the Province and Canada for the breach of Aboriginal title in the granting of fees simple in the Traditional Lands to Strangers to the Claim.

3 The Plaintiffs do not seek a declaration of Aboriginal title in paragraph 1(a) that binds Strangers to the Claim with respect to such Strangers to the Claims’ property rights.

Parties #

4 The Plaintiffs, who represent Wolastoqey Nation, are Matawaskiye (Madawaska Maliseet), Neqotkuk (Tobique), Pilick (Kingsclear), Sitansisk (Saint Mary’s), Welamukotuk (Oromocto), and Wotstak (Woodstock) First Nations (collectively, the First Nations), being the six Wolastoqey First Nations in New Brunswick. They each have the capacity of an Indian Band within the meaning of the Indian Act, R.S.C. 1985, c. I-5, as amended.

5 The Wolastoqey Nation, and the Plaintiff First Nations representing Wolastoqey Nation in this action, are Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982.

6 The Attorney General of Canada (“Canada”) is joined pursuant to sections 3, 21(1) and 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended.

7 Canada has legislative jurisdiction in relation to “Indians and lands reserved for the Indians” pursuant to subsection 91(24) of the Constitution Act, 1867, subject to the rights and interests of the Plaintiffs.

8 The Province of New Brunswick (“New Brunswick”) is joined pursuant to sections 3, 11, and 12 of the Proceedings Against the Crown Act, R.S.N.B. 1973, c, P-18, as amended.

9 New Brunswick is vested with the administration, control and beneficial interest in provincial Crown lands pursuant to section 109 of the Constitution Act, 1867, subject to the rights and interests of the Plaintiffs.

10 New Brunswick has legislative jurisdiction over lands in New Brunswick pursuant to subsections 92(5) and 92(13) of the Constitution Act, 1867, subject to the rights and interests of the Plaintiffs.

11 Together, Canada and New Brunswick are referred to in these pleadings as the Crown Defendants.

12 The Industrial Defendants are:

(a) New Brunswick Power Corporation/Société d’énergie du Nouveau-Brunswick, a corporation incorporated in the Province of New Brunswick, with the registered office located at 515 King Street P.O. Box 2000 Fredericton, NB E3B 4X1;

(b) Acadian Timber Limited Partnership, by its General Partner, Acadian Timber GP Inc., a corporation incorporated in the Province of Manitoba, with the registered office located at 181 Bay Street, Suite 200, Toronto, ON M5J 2T3;

(c) Acadian Timber GP Inc., a corporation incorporated in the Province of Ontario, with the registered office located at 181 Bay Street, Suite 300, Toronto, ON M5J 2T3;

(d) Twin Rivers Paper Company Inc., a corporation incorporated in the Province of Ontario, with the registered office located at 27 Rice Street, Edmundston, NB, E3V 1S9;

(e) H. J. Crabbe & Sons, Ltd., a corporation incorporated in the Province of New Brunswick, with the registered office located at 6 Lockhart’s Mill Road, Bristol, NB E7L 2R2;

(f) AV Group NB Inc. / Groupe AV NB Inc., a corporation incorporated in the Province of New Brunswick, with the registered office located at Brunswick Square, 1 Germain Street, Suite 1500, Saint John, NB E2L 4V1;

(g) J.D. Irving, Limited, a corporation incorporated in the Province of New Brunswick, with the registered office located at 300 Union Street, P.O. Box 5777, Saint John, NB E2L 4M3; and

(h) The following entities which are related to and/or subsidiaries of J.D. Irving, Limited […]

13 The Industrial Defendants are industrial businesses and a Crown corporation that are in possession of the portions of the Traditional Lands as set out in Schedule “B”, on the basis of Crown grants.

14 Pursuant to Rule 19.01, this statement of claim is being served on defendants located outside New Brunswick without leave, on the basis that the property in question is located in New Brunswick.

Possession of Traditional Lands Prior to the Assertion of Crown Sovereignty #

15 The Plaintiffs are the First Nations residing in what is now New Brunswick that are part of the larger Wolastoqey Nation, which before the assertion of British sovereignty occupied vast tracts of territory, including territory in what are now New Brunswick, Québec and Maine.

16 The territory occupied included the Traditional Lands, being what is now known as the Wolastoq, also known as the St. John River, watershed and surrounding area, including the land, subsurface land and minerals, airspace, land covered by water, offshore and inshore water bodies, foreshore, rivers, lakes and streams situated within this area. The Plaintiffs only seek remedies in this litigation with respect to their Traditional Lands within New Brunswick, and not with respect to their Traditional Lands found within the present boundaries of the Province of Québec and the State of Maine. A map of the Traditional Lands within New Brunswick is included in Schedule “A”.

17 The First Nations and members of the Wolastoqey Nation are the direct descendants of the Wolastoqey Nation which was present on the Traditional Lands prior to the British assertion of sovereignty.

18 Wolastoqey custom provided that members of each local group had use of its own local territory, including all of its lands, waters, and resources. However, Wolastoqey Nation as a whole had exclusive occupation of the entire Traditional Lands, and members of Wolastoqey Nation were able to travel and harvest freely throughout the Traditional Lands.

Possession at the Time of the Assertion of British Sovereignty #

19 At the time of the British assertion of sovereignty in 1759, Wolastoqey Nation controlled, regularly used, exclusively occupied, and exercised exclusive stewardship and jurisdiction over their territory, including the Traditional Lands, in accordance with Wolastoqey law. Such law provided that a person from outside their territory was expected to seek permission to be present. Anyone seeking to pass through Wolastoqey Nation’s territory or to otherwise use the Traditional Lands would require such permission. It was customary that permission, if requested, would often be granted to other friendly Indigenous persons to travel through or to temporarily stay in the territory and to hunt, fish and gather to feed themselves while doing so.

20 Permission was also granted to certain French groups to occupy certain lands within Wolastoqey Nation’s territory. The Wolastoqey Nation generally had a friendly and allied relationship with the French and their presence in Wolastoqey Nation’s Traditional Lands helped to facilitate alliance, trade, and related activities.

21 Prior to and at the assertion of British sovereignty and continuing to present day, Wolastoqey Nation has used their Traditional Lands for a variety of purposes including hunting, fishing, gathering and other resource-harvesting activities, trade, and cultural and spiritual practices.

22 At all relevant times, from the assertion of sovereignty in 1758-1759, to the Peace and Friendship Treaties between the British and Wolastoqey Nation from 1725 to 1778, the British Crown recognized Wolastoqey Nation as the Indigenous people who exclusively occupied their territory, including the Traditional Lands.

The Peace and Friendship Treaties #

23 From 1725/1726 to 1778, Wolastoqey Nation negotiated and entered into Treaties with the Crown, known as the Peace and Friendship Treaties. These Treaties do not provide for the surrender of lands to the Crown.

24 In entering into the Peace and Friendship Treaties, Wolastoqey Nation did not cede or surrender their Aboriginal title to the Traditional Lands.

25 Wolastoqey Nation’s title to the Traditional Lands has never been extinguished through surrender or legislation, and survives today.

26 Wolastoqey Nation reserves the right to claim Aboriginal title and rights in respect of the whole or any portions of their territory outside the Traditional Lands depicted in Schedule “A” in the future.

Infringement #

27 Canada and New Brunswick and their predecessors had and have a duty to respect and protect Wolastoqey Nation’s Aboriginal title.

28 The Defendants have infringed upon or otherwise breached the Defendants’ constitutional duties in respect of Wolastoqey Nation’s Aboriginal title in the Traditional Lands by alienating lands and undertaking, authorizing and/or permitting resource extraction and land use activities throughout the Traditional Lands without the Wolastoqey Nation’s consent.

29 Such uses and alienations of land were in breach of the Defendants’ duties to respect and protect Wolastoqey Nation’s Aboriginal title and have unjustifiably infringed Wolastoqey Nation’s Aboriginal title.

30 In particular, the Crown Defendants breached their duties to respect and protect Wolastoqey Nation’s Aboriginal title by actions including, but not limited to:

(a) issuing, replacing and renewing licences, leases, permits, authorizations, grants and other tenures to third parties or otherwise occupying, managing and allocating lands and resources in a manner which interferes with Wolastoqey Nation’s Aboriginal title;

(b) conveying land to themselves and to third parties without regard to Wolastoqey Nation’s Aboriginal title;

(c) passing laws which purport to enable or authorize Canada and New Brunswick to alienate lands and resources to third parties or to use those resources for their own benefit;

(d) purporting to exercise management, ownership and control over lands and resources without regard to Wolastoqey Nation’s Aboriginal title;

(e) committing or authorizing nuisances, trespass or other interferences which restrict or interfere with Wolastoqey Nation’s Aboriginal title;

(f) deriving royalties and other benefits from the lands and resources and denying Wolastoqey Nation the right to receive benefits therefrom;

(g) failing to protect and sustainably manage the lands and resources; and

(h) failing to adequately consult and/or accommodate Wolastoqey Nation or otherwise discharge the Crown’s fiduciary duties and/or the honour of the Crown in respect of the above activities.

31 Such infringements were not justified. These infringements were not made after the discharge of the Crown Defendants’ procedural duty to consult and accommodate; the Crown Defendants’ actions were not backed by a compelling and substantial objective; and the governmental actions were not consistent with the fiduciary obligations of the Crown Defendants.

32 In particular, the Crown Defendants’ grants of the properties as set out in Schedule “B” were unjustified infringements of the Plaintiffs’ Aboriginal title and contrary to law. These grants must be quashed and an Order of scire facias must be issued in respect of each of the properties set out in Schedule “B”.

33 In the alternative to paragraph 29, the defendants as set out in Schedule “B” are currently in possession of the properties set out next to their names in Schedule “B”. The Plaintiffs were wrongly dispossessed of their Aboriginal title lands. The Plaintiffs intend on regaining possession of these lands. As such, the Plaintiffs petition this Court for an Order of ejectment and for recovery of land.

34 The Crown Defendants owe the Plaintiffs compensation for infringements on their Aboriginal title by parties other than the Crown Defendants, for the loss of use of their Traditional Lands, and for breach of fiduciary duty.

35 In respect of the lands in the Traditional Lands that are not held by the Crown Defendants and which are not set out in Schedule “B”, the return of these lands is not sought by the Plaintiffs in this litigation, in spite of the unjustified infringements on them that have been authorized by the Crown Defendants. The compensation that the Crown Defendants owe the Plaintiffs in respect of these lands must concomitantly increase to account for the permanence of the Plaintiffs’ loss of use of these lands.

36 Furthermore, the Crown Defendants themselves purport to have ownership of some of the Plaintiffs’ Traditional Lands. Upon a declaration of Aboriginal title:

(a) all such lands immediately vest in interest in the Plaintiffs;

(b) the Plaintiffs are entitled to vesting in possession of all Crown lands within the parts of Schedule “A” which are declared to be Aboriginal title lands, but in the interest of furthering reconciliation with non-Indigenous people, the Plaintiffs only seek an order vesting them with possession of the Crown lands as set out in Schedule “C”;

(c) with respect to Crown lands not in Schedule “C” and which are not the subject of a lease, whether these lands are to be returned shall depend on the Crown’s ability to justify its infringements;

(d) with respect to Crown lands subject to a leasehold interest, the vesting of the reversion and any remainder in the Plaintiffs;

(e) compensation for infringement of Aboriginal title is due from each respective Crown Defendant, to be reduced where appropriate to account for lands that are returned to the possession of the Plaintiffs.

37 In addition, to the extent that resources, such as minerals and timber, have been removed from the Traditional Lands by the Defendants or by persons not involved in this litigation, where such removal was done with the permission of the Crown Defendants, the Crown Defendants owe the Plaintiffs compensation for the value of these resources.

38 In addition, to the extent that lands and resources within and on the Traditional Lands have been lost or damaged by Defendants or by persons not involved in this litigation, where such loss or damage was done with the permission of the Crown Defendants, the Crown Defendants owe the Plaintiffs compensation for the value of these resources and for the damage to the lands.

39 The amount of compensation that the Crown Defendants owe the Plaintiffs will be further particularized by the evidence to be adduced at trial.

40 Moreover, any statutes enacted by the Crown Defendants that meaningfully diminish the right of the Plaintiffs to exclusively occupy the Traditional Lands is constitutionally invalid, or constitutionally inapplicable to the Traditional Lands.

[…]