Local Journalism Initiative

October 26, 2023·

New Brunswick’s attorney general has made a spirited defence of the Progressive Conservative government’s decision to fight the Wolastoqey’s big title claim in court, saying Indigenous leaders need to “leave private landholders alone.”

In the legislature on Wednesday, Ted Flemming took the unusual step of reading a minister’s statement on the ongoing legal battle.

The First Nations chiefs called it inflammatory.

“The Wolastoqey and certain commentators have attempted to downplay the significance of their claim,” the attorney general said. “I cannot. What is being claimed is serious. If successful, the Wolastoqey would be an unelected group with significant control of their claim area – 60 per cent of the province, over 250,000 parcels of property and with a value in excess of $40 billion.”

Since filing the claim in late 2021 that covers mostly the western portion of New Brunswick and part of the Bay of Fundy, several Wolastoqey chiefs, including Patricia Bernard of Matawaskiye (Madawaska Maliseet First Nation), have said they are not interested in taking over people’s private homes or businesses, but want a bigger say on public, or Crown lands, and land controlled by big forestry companies and NB Power.

Premier Blaine Higgs and Flemming have rejected these arguments and won’t back down from the court battle. On Aug. 24, the provincial government filed a motion asking the Court of King’s Bench in Fredericton to amend a giant title claim made by the Wolastoqey Nation in New Brunswick.

If granted, it would exclude the thousands of properties owned by individuals who are not parties to the claim and unrepresented in the proceedings.

Flemming said Wednesday that simply put, the six Wolastoqey chiefs who represent Indigenous communities that hug the St. John River and its tributaries want to replace Crown title with Aboriginal title, which could potentially give them authority over land use, expropriation, mineral rights and property taxes.

“Despite providing the Wolastoqey with more opportunities to clearly and legally release the unnamed private landholders, they have refused to do so but instead continue to make non-binding public statements to downplay their claim,” the lawyer and politician said. “None of these public statements in any way affects what is claimed in the court proceeding.”

Flemming then said they should “leave private landholders alone.”

In a joint statement on behalf of the Six Chiefs of the Wolastoqey Nation, Bernard and Chief Allan Polchies Jr. of Sitansisk (St. Mary’s First Nation) described Flemming’s comments as inflammatory.

They pointed out that the judge in the case, Justice Kathryn Gregory of the Court of King’s Bench, had been very clear early on in the case: in December 2021, she directed that the matter not be litigated in the media following previous controversial comments by Flemming and the premier.

“The Attorney General, who knows very well that his statement will receive press, appears to be using parliamentary privilege to circumvent the spirit and intent of that direction,” Bernard and Polchies said. “Unlike the Attorney General, we intend to continue to abide by the direction of the Honourable Madame Justice Gregory. Our lawyers have, however, requested a case conference so that we can clarify her direction and whether we can respond in some manner to the inflammatory and false statement of the Attorney General.”

The chief said they wouldn’t comment any further for the time being.

Liberal Opposition Leader Susan Holt called Flemming’s statement extremely irresponsible.

“It begs the question, why? Why is he trying to do this in the court of public opinion when we are here because of his government’s failings? This government has put New Brunswickers at risk because of their inability to build productive relationships and negotiate constructively.

“We wouldn’t be in this lawsuit if it weren’t for the premier’s failure to build these relationships.”

Flemming has heard the argument before, and brushed it aside.

“We remain hopeful that the Wolastoqey amend their claim to release private landholders,” he said in the house. “But until they do, we have no alternative and will continue to do our job defending against this unprecedented, overreaching and very serious claim.”

– with files from Andrew Waugh

John Chilibeck, Local Journalism Initiative Reporter, The Daily Gleaner