No decision about us, without us, say forestry companies
Timber companies ask to have their land excluded from Wolastoqey title claim
Three New Brunswick timber companies are seeking to have their forestry lands excluded from the Wolastoqey Nation's Indigenous title claim that's working its way through the courts.
J.D. Irving, H.J. Crabbe and Sons, and Acadian Timber say the land they harvest and privately own should be excluded from the claim because a lower court last year removed them as defendants in the lawsuit, filed by the First Nation.
Lawyer Paul Steep, counsel for JDI, said his client has the right to respond in a case that puts the company's land at risk.
So either JDI is restored as a defendant with standing, he said, or JDI land is no longer targeted by the claim.
In one affidavit, JDI claims to own 652,689 hectares included in the statement of claim.
The Wolastoqey launched the lawsuit in the early 2020s, asserting title to more than half of New Brunswick, saying they never surrendered their traditional territory.
Last November, Justice Kathryn Gregory ruled that landowners can't be directly sued for the return of land.
She placed the issue squarely between the Wolastoqey and the Crown and dismissed the "industrial defendants."
The companies appealed.
In the New Brunswick Court of Appeal on Wednesday, lawyer Alex Cameron said he took issue with the characterization of "industrial defendants' on behalf of his client, Donald Crabbe, the owner of a sawmill in Florenceville-Bristol.
Cameron said the mill employs 50 people, and those much needed jobs depend on the woodlots that were fairly purchased by Crabbe.
He said his client has been "startled and a little upset" to be pulled into "financially disastrous," years-long litigation.
Repeatedly, questions were raised about what kind of remedies might ensue if title is declared — whether it might include financial compensation to the Wolastoqey, land expropriation, or the power to determine how land is used.
At last year's hearing, Gregory did say, "the Crown may be directed or ordered to use its expropriation powers" to return land to the Wolastoqey.
On Wednesday, lawyer Renée Pelletier said the Wolastoqey Nation has no intention of disturbing land owned by parties not named in the lawsuit. They're not coming for the farmer, she said.
She also said the Wolastoqey did not have the luxury of containing their claim to tracts of unused Crown land because there isn't much left in New Brunswick.
A choice was made to include the top six land-owning companies in New Brunswick that were using undeveloped land for economic gain, taking the resources and making a profit, Pelletier said.
Justice Ernest Drapeau asked Pelletier if the concept of aboriginal title might have enough flexibility to deal with each case in a fair manner.
He said in his world, peace and reconciliation is not somebody coming to your door, saying 'I'm moving in.'"
Pelletier said a declaration of title could be followed by another step in the spirit of reconciliation that could include discussions about what to do with land, including options that do not involve possession.
But, she said, a decision should not be made now to exclude the forestry land from the claim because that would give preference to the timber companies over the Wolastoqey.
Pelletier paused her arguments at 4 o'clock and was expected to resume Thursday.
Meanwhile, New Brunswick Justice Minister Robert McKee confirmed this week that the Holt government believes the best forum for resolving title questions is the negotiating table rather than the courtroom.
"We have instructed our lawyers to work with the lawyers for First Nations to that end, and they're on it," said the emailed statement provided by McKee.
The appeal is being heard by Drapeau, Justice Kathleen Quigg and Justice Bradley Green.
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