The Telegraph-Journal published an opinion piece by Chief Patricia Bernard on March 14, 2025. You can read the full article by clicking here.
The Telegraph-Journal has published several op-ed pieces by retired judge Joseph Robertson, a critic of the Wolastoqey Nation’s Aboriginal title claim. His opinions misrepresent the relevant law in our case. I am concerned that, given his stature, readers may be misled. That’s why I’m writing to correct the record.
The core of Robertson’s argument is that Aboriginal title cannot apply to private property. He also suggests that First Nations in New Brunswick surrendered their lands. Both of these claims are legally and factually untrue.
Aboriginal title can be issued over privately owned lands
Robertson repeatedly claims there are “decades” of “Supreme Court precedent” that have crafted “a doctrine of Aboriginal title restricted to Crown lands.” This is false. There are no Supreme Court cases that say Aboriginal title can only exist on Crown lands. In the single case where the Supreme Court has declared Aboriginal title to exist, Tsilhqot’in Nation v. British Columbia (2014),it was the plaintiff First Nation – not the court – that chose to limit its claim to Crown lands only.
Robertson also says the Court has never “suggested or implied that the doctrine could or should be extended to privately held lands.” Again, this is untrue. In Delgamuukw v. British Columbia (1997), for example, the court said that provinces cannot extinguish Aboriginal title through granting fee simple title (i.e. private ownership rights) to people. This is because provinces do not have jurisdiction to extinguish Aboriginal title.
The Court’s conclusion in Delgamuukw actually assumes that Aboriginal title can exist on privately held lands. If Aboriginal title were limited to Crown lands, the Court would not have needed to consider this question at all.
Similarly, there are several claims for Aboriginal title to privately held lands making their way through the courts in other parts of Canada. Many of these cases have dealt with questions such as whether private landowners should be notified of the Aboriginal title claims. In each decision, the courts have proceeded on the basis that Aboriginal title is not limited to Crown land and that a declaration over privately held land is possible. These cases include: Cowichan Tribes v Canada; The Council of the Haida Nation v British Columbia; and Giesbrecht v British Columbia.
Consistent with this law, the Province of British Columbia recently recognized the Haida Nation’s Aboriginal title over Haida Gwaii, including over privately held lands. The Haida Nation Recognition Act explicitly states that the “Haida Nation has aboriginal title” to Haida Gwaii, which includes lands held in fee simple.
The upshot is that Robertson is incorrect to say that Canadian law has restricted Aboriginal title to Crown land. It is telling that he points to no court decision that says this.
The Peace and Friendship Treaties do not surrender lands
Robertson suggests that certain words of the Peace and Friendship Treaties show that the Wolastoqey Nation ceded our lands. But there are various cases acknowledging these treaties did not surrender any lands:
· In Simon v. The Queen (1985) the Supreme Court of Canada stated that “None of the Maritime treaties of the eighteenth century cedes land.”
· Similarly, in R. v. Bernard (2003), the Court of Appeal in New Brunswick stated that “the series of Peace and Friendship treaties signed in the Maritimes in the 18th century were neither intended to extinguish Indian title nor effect the surrender of Indian lands.” While the outcome in Bernard was overturned, the Supreme Court did not overturn the lower court’s finding about the Peace and Friendship Treaties. As such, the reasoning in that paragraph remains valid and can still be part of our case.
Robertson does acknowledge that treaty interpretation requires looking “beyond the written word and examin[ing] all of the historical evidence” regarding the treaty creation. Yet he only references the treaty provisions that support his opinion, and does not offer any historic evidence necessary for treaty interpretation
Conclusion Robertson’s argument is that the province should fight against our efforts to recognize Aboriginal title, going so far as to outrageously suggest that the government is somehow betraying the public by negotiating with us. This is irresponsible and fails to recognize that in complex matters, negotiation is widely considered a better approach.
Given his reputation, reading Robertson’s opinions has been a disappointment. One would expect a more measured, researched, and principled approach befitting someone of his experience and stature.
Patricia Bernard is chief of the Madawaska Maliseet First Nation, a Wolastoqey community that is party to a claim for Aboriginal title in New Brunswick.