Wolastoqey chiefs claim 'enormous victory' in title claim against province

A New Brunswick judge has ruled that Aboriginal title can be declared over privately owned land — even land they're not fighting to reclaim, according to a recent decision by the Court of King's Bench.

Justice Kathryn Gregory also ruled that land owners can't be directly sued for the return of land. Instead, the fight is with the Crown. 

"I acknowledge such a declaration impacts everyone, Crown and non-Crown, but the legal declaration itself is against the Crown only. It is not declared against private parties as they hold no constitutional status as against the Aboriginal group," wrote Gregory. 

As a result, she dismissed the case against all of the "industrial defendants," including Irving Oil and J. D. Irving, leaving only the Crown as represented by the provincial and federal governments. 

Launched in 2021, the lawsuit asserts title to more than half of New Brunswick. 

The Wolasotqey Nation said it never gave up title to its territorial land when Peace and Friendship Treaties were signed with the British Crown in the 18th century.

While the claim is for title over the entire traditional territory of the Wolastoqey, they're not fighting for ownership of all the land, said Chief Allan Polchies of Sitansisk First Nation in Fredericton. 

"We are not seeking any lands back from private individuals, homeowners, cottage owners, farmers. We're only interested in Crown lands and lands owned by the industrial companies, which we specifically listed in our claim."

Essentially, the claim is for the unused or undeveloped land — roughly 5,000 properties — to be returned to the Wolastoqey. 

As for getting title over the entire territory, Polchies said it would give the Wolastoqey more say over how the land is used. 

"For instance, they would need our consent before making certain decisions on the lands. For example, if they were doing a mine or any fracking or any forestry, it'd be a co-decision."

Gregory began her 40-page decision with a line from a 1997 Supreme Court decision in a British Columbia case. 

"Let us face it, we are all here to stay." 

In her decision, Gregory described the essence of the case as seeking "a declaration of Aboriginal title over a large swath of land amounting to more than 50% of the land in the province (283,204 separate parcels of land)."