The Telegraph-Journal published an opinion piece by Graydon Nicholas on March 24, 2025. You can read the full article by clicking here.

In the middle of February, Brunswick News published another op-ed piece by retired judge Joseph Robertson expressing his disagreement with the Wolastoqey Nation’s ongoing title claim in New Brunswick. This is one of four opinion articles recently published in the Telegraph-Journal in the last few months which do not seem to understand the Wolastoqey Nation’s Aboriginal title claim, or, for that matter, the law on Aboriginal title.

Chief Patricia Bernard courageously responded to these opinion pieces late last week “The facts and the law support Aboriginal title.” I wanted to also offer my thoughts.

Land ownership and property rights are core to many people’s identity – Indigenous and non-Indigenous alike. I know that the Wolastoqey Nation’s title claim can cause emotional reactions and snap judgments, particularly for those who are unfamiliar with this claim or the law of Aboriginal title.

Having said this, I remain optimistic that accurate information and respectful dialogue can cut through the contention. I hope to clarify some misconceptions and highlight a way we can all move forward together. This requires understanding the legitimate basis for the Wolastoqey Nation’s claim, and appreciating the crucial role of negotiations in addressing Aboriginal rights and title disputes.

Aboriginal title is doctrine developed under Canadian common law, by Canadian judges. The Supreme Court of Canada, in cases spanning more than 50 years, has recognized that Indigenous people used and occupied the land we now know as Canada, before Europeans arrived. This prior occupation is the basis for Aboriginal title.

The occupation required to establish Aboriginal title is “context-specific” — it will depend on things like the Indigenous Nation’s way of life and the land’s physical characteristics. Notably, the Supreme Court of Canada in Tsilhqot’in v British Columbia (2014) said Aboriginal title is not “confined to specific village sites or farms.” Rather Aboriginal title can cover a broader territory, based on occupation of the territory for hunting, fishing, trapping, foraging, or otherwise accessing resources.

Aboriginal title survives European settlement until present day, unless extinguished or surrendered by treaty. As outlined below, no such land cession treaty exists in New Brunswick. And there is a very high standard to prove extinguishment — one that the Crown has failed to meet in almost all Aboriginal rights cases, and has never met in an Aboriginal title case.

Consistent with this law, the Wolastoqey Nation is claiming Aboriginal title based on where it believes Wolastoqey members historically used and occupied the territory. Specifically, the Wolastoqey Nation has asked for three main remedies in their claim: 1) A declaration of Aboriginal title over the entire claim area, which includes privately owned land. 2) The return of some (not all) parcels of land in their claim area. These parcels are owned either by the Crown or certain industrial businesses that were named as defendants in the Statement of Claim (the “Industrial Defendants”). 3) Monetary compensation from the Crown for breaching the Wolastoqey Nation’s Aboriginal title rights.

Various critics seem to think the Wolastoqey Nation’s title claim is fundamentally flawed and is somehow improper. However, many of these criticisms misunderstand or forget key facts and law relevant to the claim.

For instance, some claim the Supreme Court of Canada has said Aboriginal title cannot exist on privately held lands. Contrary to these claims, the existing law actually supports the idea that Aboriginal title can exist over privately-held lands. This law is helpfully explained in Chief Bernard’s recent article referenced above.

Others appear upset that the Wolastoqey Nation has not provided specific evidence to support their Aboriginal title claim. They imply that since the evidence has not been produced, it must not exist.

Here, we need to remember the early stage of the proceedings. The defendants have so far not filed any defences. So, under the court’s own rules, the Wolastoqiyik are not legally required to “provide an evidential record” or “reveal their litigation plan — i.e. their expert evidence” at this time (contrary to what some suggest). More generally, these commentators appear to forget that our Nation has been here since time immemorial. Indeed, the Supreme Court of Canada in Tsilhqot’in rejected the idea that no one owned the land before Europeans arrived.

Then there are the claims that the Wolastoqey Nation somehow surrendered their Aboriginal title in the Peace and Friendship treaties. Yet, as noted in Chief Bernard’s article, the courts have repeatedly said the Peace and Friendship treaties are not land cession treaties. I am particularly familiar with one of those cases — Simon v The Queen (1985) — as I was one of the lawyers that argued before the Supreme Court of Canada about how to interpret one of the Peace and Friendship Treaties. In that case, the court said that none of the Peace and Friendship Treaties of the 18th century ceded land.

It is true the Wolastoqey Nation’s claim remains to be determined through a trial. Having said this, the scope and nature of the Wolastoqey Nation’s claim is justified under existing law. People need to stop accusing the Wolastoqey Nation of acting improperly by bringing this claim. The Wolastoqey Nation is simply asserting its constitutionally protected right, based on decisions from this country’s highest court.

Last year, the provincial government brought a motion to strike parts of the Wolastoqey Nation’s claim. It argued that the court could not declare Aboriginal title over privately held land, so the privately held lands should be removed from the claim. At the same time, the industrial defendants brought a similar motion to strike the Wolastoqey Nation’s claim against them. They said it was the Crown’s responsibility, not theirs, to respond to Aboriginal title claims and to give land back to the Wolastoqey Nation. They asked to be released from the claim.

The motion judge disagreed with the province. She found the court can issue a declaration of Aboriginal title over privately held lands. She found this because a declaration of Aboriginal is only binding against the Crown. It is not binding on third parties or their fee simple interests. Given this, the motion judge agreed with the industrial defendants that they did not belong in the claim and struck the claim against them.

Having said that, she also noted the Wolastoqey Nation may still be able to repossess the privately-owned lands listed in their statement of claim. Importantly, however, any repossession of land can only come from the Crown. The judge held that the Crown is best suited to engage in “polycentric” decision making, which includes considering the industrial defendants’ land interests, alongside other factors.

Despite receiving what they asked for – to be released from the claim – the industrial defendants are appealing the decision. It is highly unusual for victors to try to appeal their win. It remains to be seen whether the Court of Appeal considers the appeals proper.

The province is not appealing the decision. In fact, shortly after the election of Premier Susan Holt’s government, the province’s attorney general’s office announced it was seeking to pause Aboriginal title and rights litigation, in order to pursue negotiated settlements.

Some have suggested the province has now “rolled over” and “conceded defeat on behalf of nearly all New Brunswickers.” This does not make any sense. The province remains a defendant in the action. They have not admitted any part of the Wolastoqey Nation’s claim is true. Negotiations have not begun. When they do begin, there is nothing to suggest the province will simply give the Wolastoqey Nation everything they ask for.

Rather, the province has only indicated an openness to take a more collaborative, rather than adversarial, approach to its relationship with the Wolastoqey Nation. True negotiations will involve reviewing the factual and legal basis for each side’s claims, with the aim of finding areas of agreement. It is a discussion, rather than a fight.

The province’s position is not “at odds with basic legal principles and accepted litigation norms,” as Robertson writes; rather, it is consistent with and arguably mandated by existing law. Negotiating resolutions is consistent with the honour of the Crown, an animating legal principle in Aboriginal law.

It is also in keeping with the nation-to-nation relationship between the Wolastoqey Nation and the Crown. And it follows the recent Supreme Court of Canada guidance – in Shot Both Sides (2024) and Restoule (2024) – that negotiations outside of the courtroom are a crucial part of reconciliation and a part of the Crown’s legal duty. Importantly, negotiations are a good way to ensure a result that takes into account the interests of all New Brunswickers.

This case raises significant, sensitive issues. As the motion judge aptly noted, the inclusion of privately held fee simple lands in this claim “add layers of complexity and … emotion to the matter.” It is perhaps not surprising, but still sad to see the disparaging comments against the Wolastoqey Nation’s case (e.g. that the title claim is “train wreck,” that the province should “go for the throat” on this case, that the law of Aboriginal title is a “constitutional menace” or a “self-flagellating pathology”).

These types of comments are needlessly inflammatory and divisive. Unfortunately, we have seen this playbook before. Our brothers and sisters in Maine faced similar aggression and misrepresentations when they stood up for their land rights in the 1980s. These tactics serve only to villainize the Wolastoqey Nation and distract from the real substance of the case.

The motion judge in this case recently found that there is nothing “vexatious, frivolous, and/or abusive” about the Wolastoqey Nation’s claim. She specifically said she does not “attribute nefarious motives” to the Wolastoqey Nation regarding the inclusion of private parties and their lands in the claim.

Moving forward, despite any differences in opinion, I hope we can have discussions based on accurate information, well-reasoned arguments, and mature communication. Only then can we meaningfully address Indigenous-settler relations and land ownership in New Brunswick.

The Hon. Graydon Nicholas, C.M., O.N.B., LL.D. is the former Lieutenant Governor of New Brunswick and a distinguished Wolastoqey Elder, lawyer, former judge, and social worker.