Three timber firms, including H.J. Crabbe, upset over lower court ruling
By John Chilibeck – Local Journalism Initiative Reporter, The Daily Gleaner
The Wolastoqey Nation’s title claim for more than half of New Brunswick was in court again, this time because three timber firms are upset about a lower court ruling that did not explicitly state their big swaths of land won’t be taken from them someday.
J.D. Irving, H.J. Crabbe and Sons, and Acadian Timber each presented separate motions on Friday before the Court of Appeal of New Brunswick, asking it to revisit a decision by Justice Kathryn Gregory of the Court of King’s Bench last November.
They didn’t like her ruling because, although the judge 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 – in this case the provincial government – could one day expropriate their property and give it to Indigenous communities, whose leaders insist they never surrendered the land on their traditional territory in western New Brunswick where six of their communities are nestled on or near the St. John River, what they call the Wolastoq.
The stakes are high, as it’s a massive amount of land. All told, roughly 253,000 of 283,000 parcels of land are privately owned in the traditional territory of the Wolastoqey people, encompassing 60 per cent of New Brunswick’s geography.
“This is the most important case of our lifetime,” said Hugh Cameron, the lawyer for Acadian Timber, to the judge before him, Justice Ivan Robichaud, and motioning to others behind him watching.
Seventeen lawyers and two chiefs were jammed inside the small, red-carpeted and ornate courtroom on the upper floor of Fredericton’s old courthouse to make or listen to the arguments. Besides the three firms contesting the proceedings, other companies, such as Irving Oil and Twin Rivers, sent lawyers to observe and take notes.
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.
Part of the oddity of Friday’s proceedings was seeing the two sides argue 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.
Chief Allan Polchies of Sitansisk, or St. Mary’s First Nation, who was in court Friday as an observer, has described her ruling as “courageous.”
Cameron said the first part of Justice Gregory’s lengthy 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 was also adamant that she made a big mistake by not removing the parcel identifiers – or PID – of the firms from the case.
The lawyer explained that 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 warned.
The newly elected Holt Liberal government says it doesn’t want to contest the title claim in court, unlike the previous Progressive Conservative government run by Blaine Higgs, which mounted a spirited defence against the lawsuit, arguing everyone’s private property was at stake.
In court, the province’s legal representation was markedly different.
Edward Keyes, an outside counsel hired by the provincial government, told Justice Robichaud that the Crown had an obligation to all parties involved, but it preferred a negotiated settlement.
“Aboriginal title cases are about reconciliation and require nation-to-nation discussions,” Keyes said. “That’s best achieved at the negotiation table and not in the courtroom.”
However, he added that the province respected the right of the private landowners and the Wolastoqey Nation to seek justice.
Paul Steep, part of three-person legal team representing the big firm J.D. Irving, Limited, said Justice Gregory committed a huge 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.” JDI, he pointed out, had been in possession of some of its parcels for more than 100 years.
H.J. Crabbe and Sons, the smallest of the three firms, argued that the Supreme Court of Canada decision in the Marshall-Bernard case of 2005 did not support the Wolastoqey Nation’s territorial claim.
The firm’s lawyer, Alec Cameron – no relation to Hugh Cameron – represented the province of Nova Scotia in that old case, which it won 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 warned 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 deeply damaging tariffs imposed by U.S. President Donald Trump as early as Saturday.
The Nova Scotia lawyer also 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.
Chief Patricia Bernard of Madawaska First Nation, who was watching the proceedings, bristled at Cameron’s description.
The Wolastoqey Nation argued the defendants could not contest a proceeding which they had won. Gregory removed them 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, or the government, shouldn’t have granted the land parcels to the private firms, it would have to find a way to compensate the Indigenous communities.
“Victors cannot appeal their victories,” said lawyer Renée Pelletier.
Justice Robichaud, who listened intently during the more than three hours of proceedings and occasionally took notes, only asked a single question all day.
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 Justice Gregory’s lower court ruling.
The lawyer argued that 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.
Justice Robichaud reserved his decision on the leave to appeal.
