In New Brunswick, First Nations fight for historic title claim

Jordan Land disputes between first nations and provincial governments are not uncommon in Canada. This one though, is a little bit different.

News Clip …to the east coast where the Wolastoqey Nation nation is filing a lawsuit against the province of New Brunswick and the government of Canada for Aboriginal title to their traditional lands…

Jordan That was how the dispute started last year. And when the New Brunswick government couldn’t satisfy their request for title to their traditional land, the Wolastoqey escalated their claim last week.

News Clip …the New Brunswick government was quick to react after the Wolastoqey chiefs filed a title claim, naming industry giants, such as JD Irving and New Brunswick Power.

Premier Higgs Clip …I cannot stand by his premier and just let things unfold knowing that most New Brunswickers are unaware…

Jordan Now, both the government and the Wolastoqey nations find themselves in unprecedented territory. What does it mean that so many major corporations have been named in this dispute? How should the government respond and what is the critical difference between a land claim and a title claim that will make all the difference in this case? Oh, and why did the Wolastoqey nations so badly want to make their own decisions about what happens to this land? Why now?

I’m Jordan Heath-Rawlings, this is The Big Story. Angel Moore, Cree of Peguis First nation is the Atlantic region video journalist for APTN. Hello Angel.

Angel Hi, how are you?

Jordan I’m doing really well, thanks. Thank you for taking the time for us today.

Angel Oh my pleasure.

Jordan Can you begin,, just to situate our listeners a bit, by telling us about the Wolastoqey nation, who and where are they?

Angel The Wolastoqey nation is an organization that represents the six Wolastoqey communities in New Brunswick. The Wolastoqey have lived along the St. John river valley in New Brunswick, which actually goes into Maine and, up towards the St. Lawrence river in Quebec. But the traditional territory in question is the six Wolastoqey chiefs in New Brunswick that are claiming.

Jordan And maybe you can explain the origin of this land claim before we get into the recent developments and why we’re talking about it today. Tell me about their original lawsuit against New Brunswick.

Angel The original land claim was filed about a year ago and the Wolastoqey chiefs, the six Wolastoqey chiefs were requesting Aboriginal title to their traditional land, which is about 60% of the province of New Brunswick. I was told that they were talking with the provincial government of New Brunswick and they weren’t making much steps forward. So last week they announced a new claim. And it’s an Aboriginal title claim the same as last year for their traditional lands. But this time they’re including industries: JD Irving limited and 18 of its subsidiaries and New Brunswick Power, some other industry, forestry giants, that have been operating on their land for quite some time.

Jordan How unique is that in terms of land claims, are they traditionally just made against the government? Or are corporations often brought in?

Angel Land claims, usually it’s land that a nation operates on a reserve or today we say community and the dispute is the reserve land. And they can, you know, offer to buy it back from the province. A Mi’kmaw community in Cape Breton did that not too long ago. That sort of thing.

And Aboriginal title, which this is, is quite different. Aboriginal title is the claim to their traditional territory. It means the Indigenous people have title over that land. Meaning if anyone is on the land, profiting from the land, or operating from the land, there’s a duty to consult with that nation. And that nation has their rights back to take care and protect that land as they did before colonialism.

And this was an agreement with the treaty signed with the crown from, 1725 to 1778. But the main one is the 1725/1726 treaty that explicitly acknowledges Wolastoqey title. And that title acknowledging lawful settlement process. Meaning consult, basically. Similar as the Peace and Friendship treaties that the Mi’kmaw signed. It’s Aboriginal title, there’s a duty to consult and the treaties say that the Wolastoqey have a right to hunt, fish, gather and live on their traditional territory as they have before. In British Columbia It’s the same concept. The Wet’suwet’en did not cede or surrender their land as well.

Jordan Thank you for that context, that’s really important I think for myself and the listeners to understand. I guess my question about this dispute then, is you mentioned a few minutes ago that we’re talking about 60% roughly of the province here. What’s on that land? It must be everything from industry who are named in the title dispute to like ordinary New Brunswick homes and farms right?

Angel That’s right. The industry occupies, uh, about 20% the title claim area, which is about 11% of the entire province. It’s crown land as well, so there is forestry just vacant land as well. So it does include, I guess, everything under the sun, so to speak.

Jordan What do the Wolastoqey nations want to do should they be granted this title? Like why are they fighting for this right now?

Angel They’re asking for compensation from the provincial government who has profited from this land and the Wolastoqey were not consulted. And they’re claiming the lands used by industry. In the claim itself, I have read that they want the Aboriginal title declaration of the land, airspace, water, offshore, inshore, everything in that region of their traditional territory.

For industry, they want compensation for the use of their land and that land back. Because the province sold that land to the industry that is operating on the Wolastoqey traditional territory, and the Wolastoqey are saying in their claim that that is the violation of the Peace and Friendship treaties, because in the treaties, they say they’re to be consulted, which they were not.

They are also mentioning damages and compensation from the crown defendants, which is the province and the Feds for breaking the crowns obligations. And they’re saying it’s unlawful occupation of these lands and removal of resources. The chief spoke about climate change and protecting these resources. They said they do not want to shut down these industries, but they want to work with these industries and consult with these industries. And the chief had been very explicit saying they do not want to destroy the New Brunswick economy. And they state in the claim numerous times, I’ve read it a few times over the weekend, that they do not want to claim any lands that belong to personal homeowners.

It’s 600 pages and it lists all the companies occupying in this land. And you know, when you file these claims you name who the defendants are. But also there’s three or four paragraphs that explicitly say, if you are not named in this list of companies, you will not be part of this claim.

Jordan How has the province responded to this request, or demand I guess?

Angel Well, last week, premier Higgs held a press conference and he said that this claim would bankrupt the economy, and that homeowners property rights are at risk. The value of property is at risk. And this is an unprecedented claim, the first of its kind in Canada, he said it’s huge and astronomical for any province to deal with. And he kept saying through the press conference numerous times, that it was 60% of the province. And he said, how do we deal with this? Is that a trillion dollars or a billion dollars or $2 trillion or $3 trillion. And he said, how and where do we start?

And he said the Wolastoqey chiefs are not being clear about private properties. But they are. They are clear. It’s laid out in the claim evidently and the chiefs have said publicly in press conferences that that is not the case. There is a difference between a land claim and an Aboriginal title claim. There is a very big difference.

Jordan In general, how are relations between the provincial government and particularly premier Higgs and the first nations in the province? This seems like something that would test a good relationship, nevermind whatever we would describe it as now.

Angel So with the Wolastoqey people, there’s about 4,000 living in New Brunswick, not to mention the other provinces and American states. So the relationship with the provincial government, in the last year, there has been calls from the Wolastoqey chiefs and the Mi’kmaw chiefs, for an inquiry into the justice system and systemic racism. And that came from the shooting of Chantel Moore, June 2020, and then nine days later, the shooting of Rodney Levi, on June 12th, both by police.

Chantel Moore was a wellness check and she was shot and killed by the police officer at her doorstep. Rodney Levi, it turned out to be a mental health check, he was shot and killed by an RCMP officer. Chantel Moore was shot and killed by an Edmundston police officer. About a month ago, I was at the coroner’s inquest into Rodney Levi’s death, and it was ruled a homicide. That was a week long and it was very emotional and very traumatic for his family and supporters. The Chantel Moore coroner’s inquest is coming up at the end of February.

Wolastoqey and the Mi’kmaw chiefs, and frankly, everyone in this entire region are calling for a, independent indigenous inquest into systemic racism in the justice system and policing, which was denied by premiere Higgs. Premiere Higgs also cancelled tax agreements with the First Nation communities in New Brunswick, which is a huge blow to First Nations economies.

Also the New Brunswick government is developing a truth and reconciliation process, and the First Nation chiefs say they are not being consulted or included. Truth and reconciliation day, the first day, the provincial government did not make that a provincial holiday despite calls from communities to do so.

Just recently, October 14th, minister Flemming of the provincial government sent out a memo to government employees, not to acknowledge ancestral territory anymore. You know how at a speeches or something, or any event, it’s respectful to say we are here on whoever’s unceded territory. So minister Flemming sent out a memo asking employees not to do that anymore.

Jordan This does not sound like a good faith relationship that might lead to a peaceful and amicable resolution of this title dispute.

Angel Oh, you’re right. And that’s just a short part of the history of New Brunswick.

Jordan So assuming then, and you know, I’m not, not putting words in their mouth, because as you mentioned, they’ve already kind of said it, assuming the provincial government is not going to acquiesce to these requests, where does this go in the courts and what’s the next step?

Angel Chief Bernard said that it could take a decade to do this. The premier was criticized in the legislative building by his opposition for his remarks, the chiefs said he was fear-mongering and the chiefs said it was evident that he did not understand the difference between a land claim and a title claim.

There’s a newly elected regional chief of New Brunswick, Chief Joanna Bernard. I spoke with her. She said that it’s in the courts and she is meeting with all the chiefs of the province and will be taking their recommendations to Ottawa and to the AFN general meeting. She said, though, that it will set the grounds for the Mi’kmaw of New Brunswick who are also working on their Aboriginal title claim. Right now they are consulting with elders and knowledge keepers to develop a mapping of their traditional territory. And they are speaking with the province right now, it is not filed in court, but they’re in discussions.

Jordan The last thing I want to ask you about, because it’s kind of the only thing we haven’t tackled is the corporations who are also named in this. Have we heard any response from any of them? I know the Irving’s in particular have a pretty strong foothold in the province and are one of the major power brokers there, are they willing to engage with this? What do we know?

Angel I reached out for them for a comment. And they said that they will not comment because it is in the courts.

Jordan So no word for a decade then, possibly.

Angel I guess not. It’s difficult to understand the difference between, like I said before, the land claim and the Aboriginal title, it’s confusing. And I think an important thing to realize is that people have different interpretations of what a title claim is and what the land is, and the traditional territory is. As opposed to when premier Higgs was discussing that private homeowners property is at risk. A title claim is the understanding when the treaties were signed, that the crown said you can hunt, fish, live and harvest on your traditional territory as you have before European contact, which the Wolastoqey did and other nations did. So it’s a concept that might be different to understanding land in the colonialism aspect. If that makes sense.

Jordan It does. And I mean, I can see why the chiefs would say that it’s easy to fear-monger off of this because it is something that takes a nuanced understanding that I didn’t have before we had this conversation. So I can imagine it would be really easy to gin up fear amongst ordinary citizens of New Brunswick, who live on that unceded territory.

Angel Right. Yes. It’s not like we’re going to take that square lot of land and anything that is there is gone. You could almost look at it more like as a jurisdiction over traditional land and resources.

Jordan Like a municipal government, where if you want to do something different with the land, you got to submit a request and get input on it and get approval right? That’s what we’re talking about here?

Angel Yes. And the Wolastoqey have made it very clear that they’re interested in the corporations operating on their traditional land and the resources on their traditional land. They want to protect those resources for generations to come. Also, those resources those corporations are using and profiting from could be an economic foundation for these nations.

And, you know, Marc Miller spoke about a month ago, I think he said it’s time to give land back. Which, it was shocking to a lot of people for him to say that, but even those words, land back, means a lot in the indigenous context. For each nation, it has a different meaning obviously, because each nation has their own culture, their own language, their own traditions, but this has been going on for a long time. There was Idle No More in Ottawa. And the wet’suwet’en opposing the pipeline project in Northern BC. Attawapiskat land for housing, up to the James Bay region.

This is not new. If you look at the entire country, this has been happening for quite some time. In my region, it seems to be happening more in the courts. I spoke to a land protector, a Mi’kmaw woman who was at the fracking protests. She said today she’s fighting through the courts. They’re still doing protests and other ways and means to raise awareness. You know, they’re having walks and rallies for indigenous issues, but also now it seems to be going through more the court system. The Wolastoqey chiefs have told me that they feel that they have no choice but to go through the courts.

Jordan It will be fascinating to see how this plays out. I hope it doesn’t take a decade. Thank you angel, for explaining this to us.

Angel Thank you.

Jordan Angel Moore for APTN.

That was the big story for more from us head to thebigstorypodcast.ca. Find us on Twitter at @TheBigStoryFPN. Talk to us via email, thebigstorypodcast@rci.rogers.com [click here!]. If you like, you can find this podcast in your favourite podcast player and subscribe, rate, review, et cetera. If you’re lazy and you have a smart speaker, you can just ask it to “play the big story podcast”.

Thanks for listening. I’m Jordan Heath-Rawlings we’ll talk tomorrow.

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