We want land returned, Wolastoqey say as they fight to keep forestry parcels in claim
Indigenous rights lawyer says N.B. case will likely go to Supreme Court of Canada
The Wolastoqey Nation's title claim over more than half of New Brunswick has been the subject of two days of arguments about whether land privately owned by forestry companies should be excluded from the litigation.
The Wolastoqey say exclusion would amount to putting the property interests of private industry over the constitutional rights of the First Nation.
The matter is before the New Brunswick Court of Appeal this week after a judgment last year that removed the industrial defendants from the lawsuit — including J.D. Irving, H.J. Crabbe and Acadian Timber.
The three timber firms are appealing the lower court's judgment. JDI has argued the title claim puts its privately owned land at risk, including more than 600,000 hectares. JDI says that land should be removed from the claim if the company cannot be in court to defend its interests.
Renée Pelletier, lawyer for the Wolastoqey, says just because the companies were removed from the lawsuit doesn't mean their land can't be touched.
"If the effect is that once the Crown gives the land away it can never be returned to the First Nation, there's an injustice there," Pelletier said Thursday in an interview outside the courthouse in Fredericton. "Because these are rights that are supposed to be constitutionally protected."
Pelletier said the claim is very clear. It seeks the return of the land owned by the industrial defendants — mainly the forestry companies.
Pelletier said the claim was structured to ask the court, after a declaration of title, to decide which lands should be returned.
Last year's lower court decision by Justice Kathryn Gregory suggests a two-step process that would put negotiations about land return and other remedies, between the Crown and the Wolostaqey.
"Maybe that means we don't get all the land back," Pelletier said. "It's unclear what that means. There would be a negotiation between the Wolastoqey and the Crown to figure out what is the proper remedy."
The Court of Appeal heard from additional parties Thursday, including Elsipoqtoq First Nation, which has filed its own title claim, and the eight Mi'kmaw communities that have also, together, filed their own title claim.
The court also heard representation from EMS Enterprises.
Landowner fears impact of title declaration
Lawyer Megan Mara Mallory said EMS is a business owned by Daryl Branscombe, who owns commercial buildings inside the part of the claim that's identified as schedule A, which maps the area of claim that does not include the forestry parcels.
Mallory said the Wolastoqey are seeking declaration of title to the area known as schedule A, but not asking for the return of that land. But a declaration of title, she said, would vest immediate rights with the Wolastoqey and directly impact her client, who makes his livelihood from his land.
She said it is not possible for title rights to co-exist with property rights. She said they are competing interests.
The court adjourned Thursday afternoon.