Companies argue judge should have shut door to expropriation in Wolastoqey Nation title claim
3 businesses seek to appeal last year's decision
The Wolastoqey Nation's title claim for more than half of New Brunswick was in court again Friday, this time because three timber firms are upset about a lower court ruling that did not explicitly state their land won't be taken from them someday.
J.D. Irving, H.J. Crabbe and Sons, and Acadian Timber each presented separate motions before the Court of Appeal of New Brunswick in Fredericton, asking it to revisit a decision by Justice Kathryn Gregory of the Court of King's Bench last November.
Although the Gregory agreed that the industrial defendants and everyday private property owners must be removed from the Wolastoqey lawsuit, their land is still part of the title claim.
She also wrote in her judgment that in the future it's possible the Crown could expropriate their property and give it to First Nations communities, whose leaders say they never surrendered the land on their traditional territory.
Roughly 253,000 of 283,000 parcels of land are privately owned in the traditional territory of the Wolastoqiyik, encompassing 60 per cent of New Brunswick's geography.
"This is the most important case of our lifetime," Hugh Cameron, lawyer for Acadian Timber, told Justice Ivan Robichaud.
The Wolastoqey Nation launched the lawsuit in 2020, then substantially amended it in 2021 by adding several industrial defendants, including timber companies and NB Power, which own huge land tracts.
The two sides argued whether the timber firms had won or lost the lower court ruling. The timber firms say they lost, but the Wolastoqey Nation said the timber firms won, while celebrating Gregory's decision as nuanced and fair.
Cameron said the first part of Gregory's judgment was fine until "it took a left turn and took on a life of its own."
He argued that Gregory had fundamentally erred by creating a possible future claim against the industrial defendants. He also said she made a mistake by not removing the parcel identifiers of the firms from the case.
The lawyer said businesses use land mortgages to help provide the funds to operate their businesses. If the land ownership is in question, it creates financial headaches.
"Some of the private landowners won't survive the cost of this litigation, I suspect," Cameron said.
Crown prefers to negotiate
The newly elected Holt Liberal government says it doesn't want to contest the title claim in court, unlike the previous Progressive Conservative government, which mounted a spirited defence against the lawsuit, arguing everyone's private property was at stake.
Paul Steep, part of three-person legal team representing J.D. Irving Limited, said Gregory committed a legal error by "fashioning on her own a new claim" that the Wolastoqey Nation had never made.
He said when it came to the idea of expropriation, none of the defendants "were given notice of this possibility." J. D. Irving, he said, had been in possession of some of its parcels for more than 100 years.
H.J. Crabbe and Sons argued that the Supreme Court of Canada decision in the Marshall-Bernard case of 2005 did not support the Wolastoqey Nation's territorial claim.
In that case against 35 Mi'kmaq charged with cutting timber without a proper permit, Canada's top court held that there was no right to commercial logging granted in the Peace and Friendship treaties of 1760.
Cameron said the massive lawsuit could take years to litigate and could be "ruinous for a small sawmilling operation" that was also worried about being hit with tariffs imposed by U.S. President Donald Trump.
He said asking the province to sort out whether the industrial firms' land should be part of the title claim was like "putting the fox in charge of the chicken coop," because the government is in a "trustee relationship" with the Wolastoqey Nation.
Claim is between Crown and Wolastoqey Nation, says lawyer
The Wolastoqey Nation argued the defendants could not contest a proceeding which they had won.
"Victors cannot appeal their victories," said lawyer Renee Pelletier.
She said Gregory removed the companies from the lawsuit, as they had asked, and said the title claim was strictly between the government and the Wolastoqey Nation. If it's proven that the Crown shouldn't have granted the land parcels to the private firms, it would have to find a way to compensate the First Nations.
As Pelletier brought up other Aboriginal title cases in British Columbia and Ontario that are making their way through the courts, the judge asked her about the possibility of expropriation.
"She made no decision on that," Pelletier said of Gregory's lower court ruling.
The lawyer said an element of trust was needed to ensure the Wolastoqey Nation and the Crown could work out their differences. But she also said the door to expropriation as a relief measure had to be left open in case the two sides couldn't work out their differences.
In that case, the timber firms could then apply to the court to block it, she said.
Robichaud reserved his decision on the leave to appeal.
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