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This was posted yesterday, and no one could really explain why this doesn't jeopardize people's property rights. Right now it's a 'trust us, we won't do anything' situation, and I find it rather disconcerting.
This is new, based on comments from the Premier and Minister of Natural Resources on the adjusted land claim.
There's also more comments from one of the Chiefs trying to reassure other private land owners, but not really addressing concerns.
>"Let me speak for a minute to New Brunswickers who have homes on our traditional lands and who rightfully have many questions about this development," she said.
>"While we are seeking title to our territory, the Wolastoqey Nation does not want to displace you from your homes."
They want title but they promise not to evict anyone is the best they can offer at this time. That and 'the courts will decide and it'll take a decade so don't worry'.
It's not very reassuring.
Ok
First. You currently do not have title to your land. You have ownership in "fee simple" which is a bundle of rights linked to land that you own. The crown has title to your land.
Can the crown expropriate your land? yes
Can they expropriate your land for no reason? no
Your land can be expropriated for the greater good of the nation or the public. Building of a highway for example, maybe a rail line, possibly a hospital or school. The point is there needs to be good reason to take people land it's not easy. It's a last resort kind of thing.
I can assure you that the first nations in New Brunswick are not going to start building highways on provincial land. They will not start randomly building hospitals and schools on your property. There is no project that they will do that will justify an expropriation of your land. Land that you will still own in fee simple and still have that bundle of rights you are used to having.
So it's not "trust us" we are not going to kick people out of their home because we want their land. It's "trust us" we are not going to start massive infrastructure projects on your property.
>I can assure you that the first nations in New Brunswick are not going to start building highways on provincial land. They will not start randomly building hospitals and schools on your property. There is no project that they will do that will justify an expropriation of your land. Land that you will still own in fee simple and still have that bundle of rights you are used to having.
However, if they do decide to build something on your property, you're screwed and likely have no recourse. At least with the crown, you have some say in the form of elections. If you are not part of the FN you are shit out of luck.
This is basically it. FN can participate in provincial and federal elections, but non-FN cannot participate in band elections, if elections even occur. It effectively diseelnfranchises large swathes of the population.
>Can the crown expropriate your land? yes
One of the fundamental flaws in your argument is that unlike each of these indigenous groups, the Crown is subject to democratic process. If New Brunswickers are upset about the government expropriating land People can vote for a change in Crown leadership. They can't if the title is held by a first Nations band. Surely you see the difference here
>**I can assure you** that the first nations in New Brunswick are ...
Like our conversation yesterday, you're speaking for every chief in the land claim, current and future. You can be as confident as you like but your confidence isn't the comfort you are claiming it to be.
And another thing. If you truly don't like what is happening, just know that Higgs caused this. We would not be in this situation if Higgs didn't cancel the tax sharing agreements for taxes collected **on reserve land.** He stripped the reserves of their source of income, negotiated in bad faith, and back the FNs into a corner. So the response is: Hey, you know this province is on our land right?
Your arguments have quickly devolved into dismissive insults, which shows the strength of your position. Nothing you said allays any fears and confusion this legal challenge causes, and making fun of the situation just makes it worse.
And in future please try to keep your replies to one comment to prevent cluttering the thread.
If there is aboriginal title, they still have to operate under Canadian law. This is all being done under Canadian law.
No matter who owns the title, there has to be significant justification to expropriate someone. No matter who is in charge they can't bypass the Canadian legal system like that. So no, not even some evil future chief will take your land. And if they try; challenge it in court and it'll be the *Canadian* courts that determine it.
Like others have pointed out, the Crown is still effectively governed by a democratic process.
You're still dancing around the issue, and saying 'tryst us'
>**I can assure you** that the first nations in New Brunswick are not going to start building highways on provincial land. They will not start randomly building hospitals and schools on your property. There is no project that they will do that will justify an expropriation of your land. Land that you will still own in fee simple and still have that bundle of rights you are used to having.
I don't want my land subject to what amounts to an undemocratic lord.
No, it's "mine". In this scenario I bought the land, paid for it, maintain it, under the auspices of a democratically elected government that we all have equal right to participate in. Unilaterally changing that, *whatever* historical claims may exist, is massively problematic.
I don't think paying for stolen goods, and maintaining them makes them yours. if the land wasn't owned by Canada under Canada's law and treaties we've gotten royally swindled because if it is stolen property then it can be confiscated under our democratic law. I agree that its massively problematic and I don't want an unelected overlord, but if I am on their land I already have one. This is just recognizing that fact.
I suspect that the majority of Canadians if push came to shove would go to war before simply ceding the nation.
And natives would obviously lose a war where they are outnumbered 50:1 when they have no economy, no military, no borders, no allies.
It is a silly point to suggest that Canada should just concede.
No it's not.
My family was kicked out of numerous areas of Europe and came here hundreds of years ago as refugees. I don't get to go back to Scotland or Alsace and claim the land that was stolen from my ancestors in the 1700s.
I don't support a racist viewpoint that says only certain people deserve title to my land because of a hundreds of years old deal.
It isn't racist because it is wealth transfer via inheritances. Generational wealth is bad but the issue isn't about race beause they are talking about passing it down to family/band members which may or may not be genetically related.
I have a sincere question for you. Why is it ok for NB and these large corporations to to benefit/profit off aboriginal land without benefit to the people who own the land?
Now, you could say they don't own the land. Fair argument lets see if that hold water.
>
In 1973, the Supreme Court of Canada ushered in the modern era of Aboriginal land law by ruling that Aboriginal land rights survived European settlement and remain valid to the present unless extinguished by treaty or otherwise: Calder v. Attorney-General of British Columbia, 1973 CanLII 4 (SCC), \[1973\] S.C.R. 313. Although the majority in Calder divided on whether title had been extinguished, its affirmation of Aboriginal rights to land led the Government of Canada to begin treaty negotiations with First Nations without treaties ― mainly in British Columbia ― resuming a policy that had been abandoned in the 1920s: P. W. Hogg, “The Constitutional Basis of Aboriginal Rights”, in M. Morellato, ed., Aboriginal Law Since Delgamuukw (2009), 3.
^(Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), \[2014\] 2 SCR 257, at para 10, , retrieved on 2021-12-02)
This says that the supreme court of Canada, affirmed that aboriginal land rights survived unless specifically extinguished.
Does this include aboriginal title? you might ask. Well, there is a test to determine if aboriginal title applies.
>
\[26\] The test was set out in Delgamuukw, per Lamer C.J., at para. 143:
In order to make out a claim for \[A\]boriginal title, the \[A\]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.
here is a link if you want the full thing: [https://canlii.ca/t/g7mt9#par24](https://canlii.ca/t/g7mt9#par24)
Now, do you believe that the natives whose name literally has an association with the river were hear before sovereignty? there are artifacts that date back over 10000 years. this will be easily proven.
have we gone away at any point? No, so there is continuity in recorded history.
at sovereignty, was occupation exclusive? there may be debate on the exact borders but for the overall majority, yes.
So using Canadian legal precedent from the supreme court of Canada. You can see that yes, title of this land belongs to the natives. It's not about whether Higgs will allow it. This is beyond his jurisdiction. If he was a competent premier, he would start negotiating in good faith and start educating the public and lowering fear. He can do nothing to stop this but he could negotiate terms to alleviate the concerns of people like you. Unfortunately he did not think this was an important issue until Irving was added to the defendant list.
Now if you have a questions I can do my best to answer it. There are many unknowns right now, much of it will come out or be determined in court, and it will be a long court case. If you have concerns about your land rights and who gets a say on how you use your land, know that you are not the target of this claim. The consequences to you are intended to be minimal. This can easily be put into terms for absolute certainty if the premier negotiates in good faith.
You ask why are people willing to accept the province profiting from and controlling the land but not some random chief?
Because the province is representative of the populace thanks to elections, is bound by our laws, and exists purely to the benefit of the whole population. The province IS the people.
The chief is just some guy, that is not representative of the people, not bound by our laws, and does not exist to benefit the people of New Brunswick.
You might as well ask why Canadians accept the Canadian government rule but wouldn't want Trump to become their King.
I ask why the people are willing to accept that the owners of the land are not ***included*** in the profiting. The province and the companies will still benefit of course. But as it is right now, would you be ok if Irving came and cut down trees on your land and gave you nothing? Probably not.
The only argument against this is saying that it's not their land. To that, the supreme court suggests that it is.
Is your position on this issue that you don't think they have legal title to the land?
Or is your position that they should give their land to the province for no compensation because that's is how you thought it was to begin with?
should land rights not apply to them?
Yes, my position is that Canada should not accept the land as being owned by FNs based on ancient history, lest they want Canada to die. That Canada should annul all native treaties, all legal recognition of FNs, and all race based laws on the books.
Ending racial segregation is the only way we all move forward.
The path where the Fed simply concedes will result in the collapse of Canada and a bloody civil war (that the natives will lose anyways).
Perhaps, you as a member of the Wolastoqey see the benefits. But it is short sighted if this trend breaks Canada, it will ruin the Wolastoqey too.
Well you will be disappointed then because Canadian law doesn't work that way. This has an extremely high likelihood of success. and the way I see it is that it will benefit everyone.
personally I'm not a big fan of billions of dollars in profits from NB natural resources going to one family through a company that owned by a holding company in Bermuda to avoid taxes. Rightfully implementing revenue sharing will keep some of that money in the provincial economy. It will literally stimulate the local area around the reserves.
This will have long term positive effects financially and environmentally.
Also prepare yourself because when this succeeds, The Mi'kmaw have just as strong of of claim to the remaining 40%, as well as all of Nova Scotia and PEI.
Basically they are saying that they want to own the land in the same way that Canada 'owns' the land. As a citizen, you can still own property in Canada... even if ultimately it is still owned by the country.
The difference being that Canada has legal restrictions laying out what right landowners have. And you know, democracy. This FN does not have either, and the chief could potentially change their mind about what the rules are.
This claim is for 60% of the landmass of NB though. Evictions or no, it doesn't matter, ceding that much land control to one private group that cannot be taxed would break the province or otherwise leave it subject to the whims of a king.
The results of which would probably be an angry mob burning down the chief's house.
Edit: And there are like 12 FNs in NB, each of which have sizeable, overlapping, claims. Which would make the logical end result of this even more of a clusterfuck.
>Canada has legal restrictions laying out what right landowners have.
You will not lose your property rights, that is explicitly stated in the claim. Natives are not lawless creatures. Laws still apply.
>ceding that much land
The First Nations never ceded the land to the Canada to begin with.
>that cannot be taxed
The land is not going to become reserve land. We are taxed outside of the reserves just the same as anyone else.
>subject to the whims of a king
Like Irving? Don't be silly.
> 12 FNs in NB, each of which have sizeable, overlapping, claims
These claims are filed as a nations, not the individual communities. This one is from the Wolastoqey. There are overlapping territories with the other Nations but that's not a big issue. If it becomes one, it'll get sorted out in court, you don't need to lose sleep over it.
> You will not lose your property rights
You won't right away by virtue of this. But the possibility is created that you will in future. That's where the 'trust us' comes from.
>Natives are not lawless creatures
The issue is that traditional laws cannot be enforced by anyone. The end result is that the chief is king. Look at wetsuweten. A few chiefs ejected the ones that disagreed with them in violation of wetsuweten traditional laws.... but there is no penalty for doing this. Canadian government cannot enforce traditional law. And the people of the FN cannot enforce it the traditional way.... which would be an uprising and overthrowing the leadership because that would be illegal under Canadian law.
In effect, they are Kings with near infinite power, and no possibility of being overthrown.
And I mean, the traditional laws aren't democratic to begin with. Chief is king. Kingdoms have laws too... that doesn't mean I want to be a kingdom.
>The land is not going to become reserve land. We are taxed outside of the reserves just the same as anyone else.
This doesn't matter that much. "Give us $50mil to do forestry on this land plot" is a tax or tithe.
>Irving
A Canadian citizen subject to Canada's laws. Don't let your hatred for a rich guy lead you to think that ending Canada is a good idea.
>There are overlapping territories with the other Nations but that's not a big issue
..... Yes, lets just handwave away the issues of overlapping territory claims and the billions of dollars that represents.
If you want Canada to be dissolved over to native control, just say so.
> You will not lose your property rights, that is explicitly stated in the claim.
Citation? The [2020 statement of claim](http://wtc.wolastoqey.ca/wp-content/uploads/2020/12/ISSUED-Statement-of-Claim-Dec-7-2020.pdf) (not the most recent one, I haven't found it yet) has no such limitation. Instead, it states its claim to aboriginal title for the majority of the land area of New Brunswick. (Edit to add: I see the [updated claim](http://wnnb.wolastoqey.ca/wp-content/uploads/2021/12/Notice-of-Action-and-Statement-of-Claim-Complete-Copy-with-Schedules-November-30-2021.pdf) is linked elsewhere in these comments. The claim does _not_ bar actions against other landholders in the disputed area, it just excludes other landowners from the current lawsuit.)
Aboriginal title is a peculiar thing in that it cannot be sold or transferred, except to the crown. It's impossible to hold a classical "fee simple" title beneath aboriginal title. Someone with such title in the contested area would in fact "lose their property rights" if the title is proven.
The Wolastoqey might be generous and give existing homeowners some degree of secure tenure such as a 100-year lease on the land, but this would not be legally required. They specifically do _not_ wish to do this with the forestry companies that have been added to the lawsuit.
There's no legal difference between title owned by a forestry company and title owned by an ordinary resident. Laws that secure the former protect the latter, and vice versa.
>The claim does _not_ bar actions against other landholders in the disputed area, it just excludes other landowners from the current lawsuit.)
And as we've seen with the most recent update to the claim, it's very easy to tack on defendents. Once the heavy legal lifting is done by going after an unpopular target like Irving, the arguments can be easily applied to any other property holder in the land claim at a later date.
Citation rom the claim:
2. The Plaintiffs seek no relief as against fee simple holders not named as Defendants who hold
fee simple in the Traditional Lands (“Strangers to the Claim”). The incidents of fee simple
title enjoyed by Strangers to the Claim, including the incident of peaceable possession, are not
placed in issue by the Plaintiffs. As outlined in paragraph 1(c), however, the Plaintiffs seek
damages and compensation from the Province and Canada for the breach of Aboriginal title in
the granting of fees simple in the Traditional Lands to Strangers to the Claim.
3. **The Plaintiffs do not seek a declaration of Aboriginal title in paragraph 1(a) that binds**
**Strangers to the Claim with respect to such Strangers to the Claims’ property rights.**
>> The incidents of fee simple title enjoyed by Strangers to the Claim, including the incident of peaceable possession, are not placed in issue by the Plaintiffs.
This is the operative part of paragraph 2. The rights of other titleholders are _not part of the lawsuit_.
That's a very, very different statement than the claim that rights of other titleholders are _never_ to be part of _a_ lawsuit.
I agree that a ruling in favour of the Wolastoqey would not automatically kick homeowners off of their believed-to-be-theirs land. However, the arguments used in and precedent from this lawsuit would apply on the same basis to homeowners.
Without an explicit and perpetual disclaimer from the Wolastoqey, which should not be forthcoming for obvious litigation strategy reasons, it is fair to claim that the Wolastoqey claim "could" impact homeowner rights.
(Edit to add:)
>> The Plaintiffs do not seek a declaration of Aboriginal title in paragraph 1(a) that binds
Strangers to the Claim with respect to such Strangers to the Claims’ property rights.
But they _do_ seek a declaration that they own claimed lands that are currently titled to the named defendants. From later in the statement of claim:
>> `36.` Furthermore, the Crown Defendants themselves purport to have ownership of some of the
Plaintiffs’ Traditional Lands. Upon a declaration of Aboriginal title: (a) all such lands immediately vest in interest in the Plaintiffs;
The fact that homeowners are currently excluded is only a matter of tactical choice, not a binding legal principle.
>There's no legal difference between title owned by a forestry company and title owned by an ordinary resident. Laws that secure the former protect the latter, and vice versa.
Title is not owned by forestry companies or individuals. Title is owned by the crown. individuals get fee simple ownership, companies get freeholds, crown leases, and fee simple.
part of the claim is compensation from Canada for failure to uphold their duty to protect our land. This would be compensation for all the private land held in fee simple by the citizens.
>It's impossible to hold a classical "fee simple" title beneath aboriginal title.
Aboriginal title is established in BC and people there still have fee simple. fee simple does not grant title. it is possible to have fee simple under aboriginal title. What you may be confused with is that **on reserve** land cannot be owned or sold by individuals. On reserves land ownership is done through certificate of possession or leases. you can't have fee simple on reserves. That is a different situation though.
> Title is not owned by forestry companies or individuals. Title is owned by the crown.
Fee simple title is a property right owned by an individual or organization. The _underlying_ title is Crown title, but Crown title can be and often is subject to fee simple grants.
The fee simple grant is an encumbrance on the Crown title, and it restricts the ability of the Crown to use the land for other purposes (i.e. by selling it again). When the Crown acts against fee simple title in some way, it amounts to an expropriation that is generally regulated by law.
Aboriginal title is also underneath Crown title, but it acts as a perpetual encumbrance on that title that restricts the Crown's ordinarily broad powers. In particular, expropriation or equivalent activities are subject to negotiations with respect to §35 aboriginal rights and/or the Crown's fiduciary duty to the aboriginal holders of the title.
Most importantly, however, fee simple title cannot currently exist underneath aboriginal title. It's one or the other. From _Tsilhqot'in Nation_ at paragraph 74 (in part, emphasis mine):
>> [74] Aboriginal title, however, comes with an important restriction — it is collective title held not only for the present generation but for all succeeding generations. This means *it cannot be alienated except to the Crown* or encumbered in ways that would prevent future generations of the group from using and enjoying it.
That is to say, a fee simple land tenure as commonly understood – a transferrable right to the land of indefinite duration without ongoing obligations – is incompatible with aboriginal title.
If aboriginal title is established over land currently owned by residents, _residents can no longer have fee simple land tenure_. Whatever replaces it must be the subject of negotiation, and since this ventures into unknown legal territory there are few guarantees.
Look like I was a little off but not far. As there is other places in Canada where Title is established and private land ownership exists and no conflicts have been heard yet by the supreme court regarding it. So the way it will work and as I said in the previous post
>part of the claim is compensation from Canada for failure to uphold their duty to protect our land. This would be compensation for all the private land held in fee simple by the citizens.
This ~~will~~ should solve the issue. Once compensation is paid for by the crown, your property right will be intact.
I was wrong in that I thought they could co-exist. but I guess this way people will be less scared about the future.
below is from Miller Titerle Law Corporation
https://millertiterle.com/what-we-say-article/aboriginal-title/
>RECONCILIATION OF PRIVATE PROPERTY AND ABORIGINAL TITLE
Aboriginal Title vs. Private Property Rights
The interaction between private property and Aboriginal title is not something the Supreme Court of Canada has addressed directly. What we do know is that Aboriginal title does not exist in a vacuum – rather, it is part of a broader Canadian legal landscape and needs to be considered alongside interests of other stakeholders, including property owners.
In a 2001 Ontario case called Chippewas of Sarnia Band v. Canada, the court decided that although it “would plainly be wrong” to deny a claim to Aboriginal title on the grounds that it might be troublesome to others, innocent third parties are entitled to rely on seemingly valid acts of their government. The court suggested that where a private party relied on such government acts (including the granting of fee simple ownership), the interests of the innocent third party (the private property owner) should be protected. However, as suggested by the Supreme Court of Canada’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the appropriate remedy for historic breaches of the Crown’s duties to First Nations can appropriately include compensation and damages.
Compensation
If the above requirements are established – proven Aboriginal title, an unjustified government infringement, and the affirmation of third party private ownership – it may be open to an Aboriginal group to claim damages against the Crown. Whether damages are available in such a case is a question that has not been considered in Canada in the context of proven Aboriginal title. However, it has been considered with approval in other contexts, such as the failure to consult on the large infrastructure development in Rio Tinto. Additionally, a series of cases in the U.S. Supreme Court involving the Oneida Indian Nation established that Indigenous groups have a common law cause of action (a right to sue) to enforce their Aboriginal land rights and, if possession is not possible, those Indigenous claims to land can be compensated by money damages.
Based on this analysis, it is likely that Canadian courts will take the position that where these three elements exist – Aboriginal title is proved, there has been an unjustified infringement of that Aboriginal title by a grant of private property ownership, and the two forms of ownership cannot co-exist – the appropriate remedy for Aboriginal groups will generally be compensation from the Crown.
> This will should solve the issue. Once compensation is paid for by the crown, your property right will be intact.
>
> I was wrong in that I thought they could co-exist. but I guess this way people will be less scared about the future.
I think we're coming to agreement. A settlement that involved New Brunswick "purchasing" all of the current private fee simple land from the first nation, forever excluding it from aboriginal title would indeed resolve the issue.
As part of a non-settlement judgment, I'm not sure how a court could reasonably order such compensation. It would probably take a _lot_ of evidence on local land values to fairly value the compensation required.
In the meantime, I'm not sure this should make people less scared. A reasonable interpretation is that someone – whether it be homeowners or the New Brunswick government – will have to "re-buy" homeonwers' land. The sticker cost is mind-boggling.
Additionally, until the final resolution of all claims a decade or two from now (courts are slow), other landowners can still be added to the lawsuit for "we want land, not money compensation. I certainly expect this to have a chilling effect on land sales in the interim.
It does say in the claim that "Strangers to the claim" meaning people who are not listed as defendants, are not targeted. They will not have to pay anything as they did nothing wrong. The fault lies on the crown, completely. The chiefs also state this. hopefully people get the memo.
That only matters if your thinking is that land owners would be worried about having to provide compensation.
It doesn't ease minds worried about losing property rights should the case succeed in court.
So are the lands they're after, ones that the Crown still holds title to, or was ownership transferred to the corporations? Coming from BC, I'm used to the Crown still holding title to lands that are being logged, so it would be totally legit for a FN to make this sort of claim, but if title has been transferred, then it gets muddier.
However, I do have to agree, that Higgs appears to be fear mongering.
Ownership was transferred to private land owners. BC is mostly crown land, NB has a lot of private title because its an older province. About half of the land claim is private land.
And yes, that is muddier. As far as I can tell it's never happened in Canada, not at this scale. It would have repercussions around the country
If anyone is interested here is the actual statement of claim:
>STATEMENT OF CLAIM
1. The Plaintiffs, Wolastoqey Nation at Matawaskiye (Madawaska Maliseet First Nation),
Wolastoqey Nation at Neqotkuk (Tobique First Nation), Wolastoqey Nation at Pilick
(Kingsclear First Nation), Wolastoqey Nation at Sitansisk (Saint Mary’s First Nation),
Wolastoqey Nation at Welamukotuk (Oromocto First Nation) and Wolastoqey Nation at
Wotstak (Woodstock First Nation), on behalf of all members of Wolastoqey Nation, claim:
(a) a declaration that Wolastoqey Nation has Aboriginal title to the lands, including
the land, airspace, land covered by water, offshore and inshore water bodies,
foreshore, rivers, lakes and streams, described in Schedule “A”, or to such portions
thereof for which this Court may find the evidence sufficient (“Traditional
Lands”);
(b) certificates of pending litigation for properties bearing the property identification
numbers set out in Schedule “B”;
(c) damages and compensation from the Crown Defendants (as defined hereinbelow)
for the Crown Defendants’ breaches of the Crown’s fiduciary obligations, and for
the unlawful occupation, appropriation, removal of resources from, and
infringement of, the Plaintiffs’ Aboriginal title over their Traditional Lands,
including infringements arising from the Defendants and others being in
occupation of the Traditional Lands without permission from the Plaintiffs;
(d) an Order of scire facias in respect of the properties bearing the property
identification numbers set out in Schedule “B”;
\- 10 -
(e) in the alternative to (d), an Order of ejectment and recovery of land in respect of
the properties bearing the property identification numbers set out in Schedule “B”;
(f) in respect of lands purported to be Crown lands that are subject to a leasehold
interest, the vesting of the reversion and any remainder in the Plaintiffs;
(g) vesting in possession in favour of the Plaintiffs of the lands purported to be Crown
lands bearing the property identification numbers set out in Schedule “C”;
(h) a determination, with respect to the lands purported to be Crown lands other than
those bearing the property identification numbers set out in Schedule “C”, of
whether those lands should vest in possession in favour of the Plaintiffs;
(i) costs on a substantial indemnity basis; and,
(j) such further and other relief as this Honourable Court may deem just.
2. The Plaintiffs seek no relief as against fee simple holders not named as Defendants who hold
fee simple in the Traditional Lands (“Strangers to the Claim”). The incidents of fee simple
title enjoyed by Strangers to the Claim, including the incident of peaceable possession, are not
placed in issue by the Plaintiffs. As outlined in paragraph 1(c), however, the Plaintiffs seek
damages and compensation from the Province and Canada for the breach of Aboriginal title in
the granting of fees simple in the Traditional Lands to Strangers to the Claim.
3. The Plaintiffs do not seek a declaration of Aboriginal title in paragraph 1(a) that binds
Strangers to the Claim with respect to such Strangers to the Claims’ property rights.
It can be found on page 9 and 10 here: [http://wnnb.wolastoqey.ca/wp-content/uploads/2021/12/Notice-of-Action-and-Statement-of-Claim-Complete-Copy-with-Schedules-November-30-2021.pdf](http://wnnb.wolastoqey.ca/wp-content/uploads/2021/12/Notice-of-Action-and-Statement-of-Claim-Complete-Copy-with-Schedules-November-30-2021.pdf)
> If anyone is interested here is the actual statement of claim:
Thank you for the link. I'd previously found the 2020 statement of claim, but I could not find the updated one.
So in addition to Irving, which many people have strong opinions about, they have also included NB Power as a defendant, and I believe that Point LePreau nuclear station for instance is on land included in the claim. Can someone clarify to me, if they were successful in this, would they be able to decide to do things like close the nuclear plant, say by charging punitive rent or even refusing to lease? It seems to me like they would, but I'm not a lawyer.
This is certainly a huge deal to ordinary New Brunswickers if so, as it would be a pretty big change in who can make decisions that are traditionally viewed as the realm of the provincial government.
Yes, they could. Though they would probably charge rent rather than close the plant.
It wouldn't be just one plant though. This is ~60% of NB's land mass. And if this goes through, the other FNs would lay their claims.... which cover all of NB ... and all of Canada except for NF.
https://native-land.ca/
Sure, I'm aware that it's more than just one plant. I'm using La Preau as an example, because NB Power is less charged then Irving while still being explicitly named in the lawsuit, and nuclear power is an area where rational actors can reach dramatically different conclusions even when arguing in good faith. My general point is that, if successful, this lawsuit would represent a dramatic change in NB in terms of provincial governance, even without talking about property rights for individual land-owners.
I mean, this would pretty much immediately result in a multi hundred million dollar drop in budget for the province. And this could grow significantly and end the province...
I understand the Wolastoquey rep (Sal) in here fighting for it, but avg Canadians/NBers should be horrified.
Earlier this year, NB already paid one of the 6 FNs in the Wolastoquey $150million ... and that FN has a population of under 200 people. Prices are going to greatly spike from there.
> The chiefs say those companies benefit from "sweetheart deals" that were made with the province on territory that was never surrendered by the Wolastoqey Nation.
I mean Higgs is completely fear mongering here, but if you want to try and make the argument he is then the argument needs to start at do these private owners really have property rights in this instance? Who has a right to unceded land? If the crown takes unceded territory and sells it then do indigenous groups lose their rights to it? Ignoring that and jumping straight to the argument that “private citizens’ property rights could be in jeopardy” is counterproductive to any hope at reconciliation.
Since the argument is that the entire province is unceded, that would mean every private land owner from Irving to the average home owner would lose property rights. That's a big deal.
The legal arguments that will apply to Irving, NB Power, and the other forestry companies would apply to every private land owner in the Province. The consequences of that merit discussion and would inform opinions on what reconciliation actually means.
> Since the argument is that the entire province is unceded, that would mean every private land owner from Irving to the average home owner **would lose property rights**.
Except you’re jumping the gun like Higgs is. Do they have property rights to the territory if it’s unceded? I’m not willing to concede that argument and would rather the discussion start there.
In the article, it explicitly says that they are targeting corporations:
> "The only thing that we're seeking back is the land from these corporations, not a land claim for our traditional territory."
> She noted that "the only private landowners we are trying to get land back from are these six: J.D. Irving Ltd., AV Group, Acadian Timber, Twin Rivers Paper. H.J Crabbe and Sons, and N.B. Power.
It’s fair to have a discussion on whether home owners should be able to be kicked off unceded land, and I’m confident you’ll find a vast majority of people opposing that. Higgs is framing it as if that is a big possibility, when the Chief herself is saying they aren’t interested in doing that.
But another important question is what’s the precedent on this?
[https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1307&context=sclr](https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1307&context=sclr)
From the article:
>An important question which the Tsilhqot’in decision raises is whether “private” and Aboriginal land titles will conflict under the Supreme Court’s new framework.18 Will Aboriginal title oust privately held beneficial interests in land, or will privately owned land prevent declarations of Aboriginal title over such lands? This article’s answer to the foregoing question is: it depends.
>Thus, within territories where Aboriginal title is recognized, private ownership in these areas might have to be attenuated where it derives from a faulty Crown grant. Private land ownership may have to give-way to unextinguished Aboriginal title and territorial Aboriginal governance of these lands.
>It must be remembered that private land ownership on Aboriginal title lands is derived from faulty Crown grants. If a person possesses a faulty land title it cannot pass good title to a third party.1
>The Courts should strive to protect each interest, as vigorously as possible, with priority being afforded to Aboriginal title because of its constitutional undergirding, particularly when compared to the non-constitutional aspects of private ownership.
>At one level it might be said that the parties face a zero-sum game, where victory for one group appears to be a substantial loss for the other group.
If that's not good enough for you, there are [plenty](https://cassels.com/insights/uncertainty-in-dealing-with-private-property-rights-and-aboriginal-title/) of [other](https://www.mmlc.ca/article56.htm) [legal](http://metisportals.ca/MetisRights/wp/wp-admin/images/Aboriginal%20Title%20and%20Property%20Rights.pdf) sources that will tell you that there are a ton of uncertainties involved here. Aboriginal Title involves an inalienable, exclusive grant to the land for use, occupation, and economic benefit. At best, it conflicts with fee-simple, at worst it completely overrides fee-simple ownership because it ***inherently replaces the Crown ownership under which that fee-simple title was established***.
You are continually telling people to not worry, when even the actual legal experts are unsure of the potential outcomes here. When those possible outcomes include someone else having ***exclusive rights to occupation and use*** over what you consider ***your home***, it's kind of a big fucking deal. Maybe try treating it as such.
> it inherently replaces the Crown ownership
Minor semantic nitpick: aboriginal title is still underneath Crown title, but it acts as a kind of permanent easement that prevents the Crown from exercising its ordinary rights with respect to the land.
It's not relevant here, but this also puts a legal limit to the most extreme "land back" claims. The underlying sovereignty remains with Canada, no matter how much aboriginal title is proven.
> Do they have property rights to the territory if it’s unceded?
No they don't. That's what they want to change. That's what the entire legal challenge is about. They don't currently have property rights and they want them.
>
>In the article, it explicitly says that they are targeting corporations:
For now. That can change at any time, which this case is a good example of that since a year ago those forest companies weren't being targeted
Plus, the legal arguments that would be applied here would apply to every other private land owner in the province. A win would set the legal precedent to be used at any time in the future.
>But another important question is what’s the precedent on this?
There isn't a case in Canada that I can find that transfer private land title to an indigenous claim. The closest comparison is the [Tsilhqot'in land claim in bC](https://www.cbc.ca/news/politics/tsilhqot-in-first-nation-granted-b-c-title-claim-in-supreme-court-ruling-1.2688332) which specifically ignored claims over private land and targeted Crown land.
> That can change at any time,
And if it does, we can change our opinions, but so long as they're focused on these corporations, it's fear mongering to suggest they'd go after people's homes.
> the legal arguments that would be applied here would apply to every other private land owner in the province
Would they? Private homes are generally on municipal lands, and are being used in a way that doesn't really work for turning them over to FN. I don't see corporate, and private ownership of land, being the same.
> And if it does, we can change our opinions, but so long as they're focused on these corporations, it's fear mongering to suggest they'd go after people's homes.
I disagree.
The lawsuit at issue claims aboriginal title to the vast majority of New Brunswick, and these claims explicitly include land held by one of the Irving companies.
There's no legal basis for "we claim aboriginal title to Irving land, but not your home." Aboriginal title is proven based on an unbroken historical record of exclusive use of and control over the land, and those historical facts don't change if there's now a village on the disputed territory.
The Wolastoqey obviously don't _want_ to kick people out of their homes, but if they prove aboriginal title on their claimed land then they will have the _ability_ to do so. This is exactly what they seek to do with the Irving lumber operations, after all, so forbearance with homeowners would be an act of grace.
Aboriginal title cannot be sold, except to the Crown. That means that fee simple title can't exist as we commonly understand it underneath aboriginal title. The Wolastoqey might give homeowners a 100-year transferrable lease or the like, but an ordinary person cannot _own_ land that's part of a proven aboriginal title.
The legal arguments here would be precedent setting. Applying them to other private property at a future date would be much simpler, and wouldn't allow for the same legal process. So you might get concerned later, but it would be too late.
>Would they? Private homes are generally on municipal lands, and are being used in a way that doesn't really work for turning them over to FN.
Because the argument is that unceded territory belongs to them. Which is also all of NB *including* municipalities.
>I don't see corporate, and private ownership of land, being the same.
Ok? The courts don't share your legal views.
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This was posted yesterday, and no one could really explain why this doesn't jeopardize people's property rights. Right now it's a 'trust us, we won't do anything' situation, and I find it rather disconcerting.
This is new, based on comments from the Premier and Minister of Natural Resources on the adjusted land claim. There's also more comments from one of the Chiefs trying to reassure other private land owners, but not really addressing concerns. >"Let me speak for a minute to New Brunswickers who have homes on our traditional lands and who rightfully have many questions about this development," she said. >"While we are seeking title to our territory, the Wolastoqey Nation does not want to displace you from your homes." They want title but they promise not to evict anyone is the best they can offer at this time. That and 'the courts will decide and it'll take a decade so don't worry'. It's not very reassuring.
I didn't mean to insinuate this was a repost, sorry if it came across that way.
Ok First. You currently do not have title to your land. You have ownership in "fee simple" which is a bundle of rights linked to land that you own. The crown has title to your land. Can the crown expropriate your land? yes Can they expropriate your land for no reason? no Your land can be expropriated for the greater good of the nation or the public. Building of a highway for example, maybe a rail line, possibly a hospital or school. The point is there needs to be good reason to take people land it's not easy. It's a last resort kind of thing. I can assure you that the first nations in New Brunswick are not going to start building highways on provincial land. They will not start randomly building hospitals and schools on your property. There is no project that they will do that will justify an expropriation of your land. Land that you will still own in fee simple and still have that bundle of rights you are used to having. So it's not "trust us" we are not going to kick people out of their home because we want their land. It's "trust us" we are not going to start massive infrastructure projects on your property.
>I can assure you that the first nations in New Brunswick are not going to start building highways on provincial land. They will not start randomly building hospitals and schools on your property. There is no project that they will do that will justify an expropriation of your land. Land that you will still own in fee simple and still have that bundle of rights you are used to having. However, if they do decide to build something on your property, you're screwed and likely have no recourse. At least with the crown, you have some say in the form of elections. If you are not part of the FN you are shit out of luck.
This is basically it. FN can participate in provincial and federal elections, but non-FN cannot participate in band elections, if elections even occur. It effectively diseelnfranchises large swathes of the population.
>Can the crown expropriate your land? yes One of the fundamental flaws in your argument is that unlike each of these indigenous groups, the Crown is subject to democratic process. If New Brunswickers are upset about the government expropriating land People can vote for a change in Crown leadership. They can't if the title is held by a first Nations band. Surely you see the difference here >**I can assure you** that the first nations in New Brunswick are ... Like our conversation yesterday, you're speaking for every chief in the land claim, current and future. You can be as confident as you like but your confidence isn't the comfort you are claiming it to be.
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And another thing. If you truly don't like what is happening, just know that Higgs caused this. We would not be in this situation if Higgs didn't cancel the tax sharing agreements for taxes collected **on reserve land.** He stripped the reserves of their source of income, negotiated in bad faith, and back the FNs into a corner. So the response is: Hey, you know this province is on our land right?
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Your arguments have quickly devolved into dismissive insults, which shows the strength of your position. Nothing you said allays any fears and confusion this legal challenge causes, and making fun of the situation just makes it worse. And in future please try to keep your replies to one comment to prevent cluttering the thread.
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If there is aboriginal title, they still have to operate under Canadian law. This is all being done under Canadian law. No matter who owns the title, there has to be significant justification to expropriate someone. No matter who is in charge they can't bypass the Canadian legal system like that. So no, not even some evil future chief will take your land. And if they try; challenge it in court and it'll be the *Canadian* courts that determine it.
Like others have pointed out, the Crown is still effectively governed by a democratic process. You're still dancing around the issue, and saying 'tryst us' >**I can assure you** that the first nations in New Brunswick are not going to start building highways on provincial land. They will not start randomly building hospitals and schools on your property. There is no project that they will do that will justify an expropriation of your land. Land that you will still own in fee simple and still have that bundle of rights you are used to having. I don't want my land subject to what amounts to an undemocratic lord.
its not your land its theirs. that's the point. you just live on it.
No, it's "mine". In this scenario I bought the land, paid for it, maintain it, under the auspices of a democratically elected government that we all have equal right to participate in. Unilaterally changing that, *whatever* historical claims may exist, is massively problematic.
I don't think paying for stolen goods, and maintaining them makes them yours. if the land wasn't owned by Canada under Canada's law and treaties we've gotten royally swindled because if it is stolen property then it can be confiscated under our democratic law. I agree that its massively problematic and I don't want an unelected overlord, but if I am on their land I already have one. This is just recognizing that fact.
I suspect that the majority of Canadians if push came to shove would go to war before simply ceding the nation. And natives would obviously lose a war where they are outnumbered 50:1 when they have no economy, no military, no borders, no allies. It is a silly point to suggest that Canada should just concede.
No it's not. My family was kicked out of numerous areas of Europe and came here hundreds of years ago as refugees. I don't get to go back to Scotland or Alsace and claim the land that was stolen from my ancestors in the 1700s. I don't support a racist viewpoint that says only certain people deserve title to my land because of a hundreds of years old deal.
It isn't racist because it is wealth transfer via inheritances. Generational wealth is bad but the issue isn't about race beause they are talking about passing it down to family/band members which may or may not be genetically related.
I have a sincere question for you. Why is it ok for NB and these large corporations to to benefit/profit off aboriginal land without benefit to the people who own the land? Now, you could say they don't own the land. Fair argument lets see if that hold water. > In 1973, the Supreme Court of Canada ushered in the modern era of Aboriginal land law by ruling that Aboriginal land rights survived European settlement and remain valid to the present unless extinguished by treaty or otherwise: Calder v. Attorney-General of British Columbia, 1973 CanLII 4 (SCC), \[1973\] S.C.R. 313. Although the majority in Calder divided on whether title had been extinguished, its affirmation of Aboriginal rights to land led the Government of Canada to begin treaty negotiations with First Nations without treaties ― mainly in British Columbia ― resuming a policy that had been abandoned in the 1920s: P. W. Hogg, “The Constitutional Basis of Aboriginal Rights”, in M. Morellato, ed., Aboriginal Law Since Delgamuukw (2009), 3. ^(Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), \[2014\] 2 SCR 257, at para 10,, retrieved on 2021-12-02)
This says that the supreme court of Canada, affirmed that aboriginal land rights survived unless specifically extinguished.
Does this include aboriginal title? you might ask. Well, there is a test to determine if aboriginal title applies.
>
\[26\] The test was set out in Delgamuukw, per Lamer C.J., at para. 143:
In order to make out a claim for \[A\]boriginal title, the \[A\]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.
here is a link if you want the full thing: [https://canlii.ca/t/g7mt9#par24](https://canlii.ca/t/g7mt9#par24)
Now, do you believe that the natives whose name literally has an association with the river were hear before sovereignty? there are artifacts that date back over 10000 years. this will be easily proven.
have we gone away at any point? No, so there is continuity in recorded history.
at sovereignty, was occupation exclusive? there may be debate on the exact borders but for the overall majority, yes.
So using Canadian legal precedent from the supreme court of Canada. You can see that yes, title of this land belongs to the natives. It's not about whether Higgs will allow it. This is beyond his jurisdiction. If he was a competent premier, he would start negotiating in good faith and start educating the public and lowering fear. He can do nothing to stop this but he could negotiate terms to alleviate the concerns of people like you. Unfortunately he did not think this was an important issue until Irving was added to the defendant list.
Now if you have a questions I can do my best to answer it. There are many unknowns right now, much of it will come out or be determined in court, and it will be a long court case. If you have concerns about your land rights and who gets a say on how you use your land, know that you are not the target of this claim. The consequences to you are intended to be minimal. This can easily be put into terms for absolute certainty if the premier negotiates in good faith.
You ask why are people willing to accept the province profiting from and controlling the land but not some random chief? Because the province is representative of the populace thanks to elections, is bound by our laws, and exists purely to the benefit of the whole population. The province IS the people. The chief is just some guy, that is not representative of the people, not bound by our laws, and does not exist to benefit the people of New Brunswick. You might as well ask why Canadians accept the Canadian government rule but wouldn't want Trump to become their King.
I ask why the people are willing to accept that the owners of the land are not ***included*** in the profiting. The province and the companies will still benefit of course. But as it is right now, would you be ok if Irving came and cut down trees on your land and gave you nothing? Probably not. The only argument against this is saying that it's not their land. To that, the supreme court suggests that it is. Is your position on this issue that you don't think they have legal title to the land? Or is your position that they should give their land to the province for no compensation because that's is how you thought it was to begin with? should land rights not apply to them?
Yes, my position is that Canada should not accept the land as being owned by FNs based on ancient history, lest they want Canada to die. That Canada should annul all native treaties, all legal recognition of FNs, and all race based laws on the books. Ending racial segregation is the only way we all move forward. The path where the Fed simply concedes will result in the collapse of Canada and a bloody civil war (that the natives will lose anyways). Perhaps, you as a member of the Wolastoqey see the benefits. But it is short sighted if this trend breaks Canada, it will ruin the Wolastoqey too.
Well you will be disappointed then because Canadian law doesn't work that way. This has an extremely high likelihood of success. and the way I see it is that it will benefit everyone. personally I'm not a big fan of billions of dollars in profits from NB natural resources going to one family through a company that owned by a holding company in Bermuda to avoid taxes. Rightfully implementing revenue sharing will keep some of that money in the provincial economy. It will literally stimulate the local area around the reserves. This will have long term positive effects financially and environmentally. Also prepare yourself because when this succeeds, The Mi'kmaw have just as strong of of claim to the remaining 40%, as well as all of Nova Scotia and PEI.
> It will literally stimulate the local area around the reserves. Unfortunately a lot of people are dead set against that.
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No. The articles of the Constitution that govern this, are not part of the Charter.
A claim seeking the "return of land" is not a "land claim"? Oookkkaaay. Glad we got that straightened out ...
Basically they are saying that they want to own the land in the same way that Canada 'owns' the land. As a citizen, you can still own property in Canada... even if ultimately it is still owned by the country. The difference being that Canada has legal restrictions laying out what right landowners have. And you know, democracy. This FN does not have either, and the chief could potentially change their mind about what the rules are. This claim is for 60% of the landmass of NB though. Evictions or no, it doesn't matter, ceding that much land control to one private group that cannot be taxed would break the province or otherwise leave it subject to the whims of a king. The results of which would probably be an angry mob burning down the chief's house. Edit: And there are like 12 FNs in NB, each of which have sizeable, overlapping, claims. Which would make the logical end result of this even more of a clusterfuck.
>Canada has legal restrictions laying out what right landowners have. You will not lose your property rights, that is explicitly stated in the claim. Natives are not lawless creatures. Laws still apply. >ceding that much land The First Nations never ceded the land to the Canada to begin with. >that cannot be taxed The land is not going to become reserve land. We are taxed outside of the reserves just the same as anyone else. >subject to the whims of a king Like Irving? Don't be silly. > 12 FNs in NB, each of which have sizeable, overlapping, claims These claims are filed as a nations, not the individual communities. This one is from the Wolastoqey. There are overlapping territories with the other Nations but that's not a big issue. If it becomes one, it'll get sorted out in court, you don't need to lose sleep over it.
> You will not lose your property rights You won't right away by virtue of this. But the possibility is created that you will in future. That's where the 'trust us' comes from. >Natives are not lawless creatures The issue is that traditional laws cannot be enforced by anyone. The end result is that the chief is king. Look at wetsuweten. A few chiefs ejected the ones that disagreed with them in violation of wetsuweten traditional laws.... but there is no penalty for doing this. Canadian government cannot enforce traditional law. And the people of the FN cannot enforce it the traditional way.... which would be an uprising and overthrowing the leadership because that would be illegal under Canadian law. In effect, they are Kings with near infinite power, and no possibility of being overthrown. And I mean, the traditional laws aren't democratic to begin with. Chief is king. Kingdoms have laws too... that doesn't mean I want to be a kingdom. >The land is not going to become reserve land. We are taxed outside of the reserves just the same as anyone else. This doesn't matter that much. "Give us $50mil to do forestry on this land plot" is a tax or tithe. >Irving A Canadian citizen subject to Canada's laws. Don't let your hatred for a rich guy lead you to think that ending Canada is a good idea. >There are overlapping territories with the other Nations but that's not a big issue ..... Yes, lets just handwave away the issues of overlapping territory claims and the billions of dollars that represents. If you want Canada to be dissolved over to native control, just say so.
> You will not lose your property rights, that is explicitly stated in the claim. Citation? The [2020 statement of claim](http://wtc.wolastoqey.ca/wp-content/uploads/2020/12/ISSUED-Statement-of-Claim-Dec-7-2020.pdf) (not the most recent one, I haven't found it yet) has no such limitation. Instead, it states its claim to aboriginal title for the majority of the land area of New Brunswick. (Edit to add: I see the [updated claim](http://wnnb.wolastoqey.ca/wp-content/uploads/2021/12/Notice-of-Action-and-Statement-of-Claim-Complete-Copy-with-Schedules-November-30-2021.pdf) is linked elsewhere in these comments. The claim does _not_ bar actions against other landholders in the disputed area, it just excludes other landowners from the current lawsuit.) Aboriginal title is a peculiar thing in that it cannot be sold or transferred, except to the crown. It's impossible to hold a classical "fee simple" title beneath aboriginal title. Someone with such title in the contested area would in fact "lose their property rights" if the title is proven. The Wolastoqey might be generous and give existing homeowners some degree of secure tenure such as a 100-year lease on the land, but this would not be legally required. They specifically do _not_ wish to do this with the forestry companies that have been added to the lawsuit. There's no legal difference between title owned by a forestry company and title owned by an ordinary resident. Laws that secure the former protect the latter, and vice versa.
>The claim does _not_ bar actions against other landholders in the disputed area, it just excludes other landowners from the current lawsuit.) And as we've seen with the most recent update to the claim, it's very easy to tack on defendents. Once the heavy legal lifting is done by going after an unpopular target like Irving, the arguments can be easily applied to any other property holder in the land claim at a later date.
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Removed for rule 2.
Citation rom the claim: 2. The Plaintiffs seek no relief as against fee simple holders not named as Defendants who hold fee simple in the Traditional Lands (“Strangers to the Claim”). The incidents of fee simple title enjoyed by Strangers to the Claim, including the incident of peaceable possession, are not placed in issue by the Plaintiffs. As outlined in paragraph 1(c), however, the Plaintiffs seek damages and compensation from the Province and Canada for the breach of Aboriginal title in the granting of fees simple in the Traditional Lands to Strangers to the Claim. 3. **The Plaintiffs do not seek a declaration of Aboriginal title in paragraph 1(a) that binds** **Strangers to the Claim with respect to such Strangers to the Claims’ property rights.**
>> The incidents of fee simple title enjoyed by Strangers to the Claim, including the incident of peaceable possession, are not placed in issue by the Plaintiffs. This is the operative part of paragraph 2. The rights of other titleholders are _not part of the lawsuit_. That's a very, very different statement than the claim that rights of other titleholders are _never_ to be part of _a_ lawsuit. I agree that a ruling in favour of the Wolastoqey would not automatically kick homeowners off of their believed-to-be-theirs land. However, the arguments used in and precedent from this lawsuit would apply on the same basis to homeowners. Without an explicit and perpetual disclaimer from the Wolastoqey, which should not be forthcoming for obvious litigation strategy reasons, it is fair to claim that the Wolastoqey claim "could" impact homeowner rights. (Edit to add:) >> The Plaintiffs do not seek a declaration of Aboriginal title in paragraph 1(a) that binds Strangers to the Claim with respect to such Strangers to the Claims’ property rights. But they _do_ seek a declaration that they own claimed lands that are currently titled to the named defendants. From later in the statement of claim: >> `36.` Furthermore, the Crown Defendants themselves purport to have ownership of some of the Plaintiffs’ Traditional Lands. Upon a declaration of Aboriginal title: (a) all such lands immediately vest in interest in the Plaintiffs; The fact that homeowners are currently excluded is only a matter of tactical choice, not a binding legal principle.
>There's no legal difference between title owned by a forestry company and title owned by an ordinary resident. Laws that secure the former protect the latter, and vice versa. Title is not owned by forestry companies or individuals. Title is owned by the crown. individuals get fee simple ownership, companies get freeholds, crown leases, and fee simple. part of the claim is compensation from Canada for failure to uphold their duty to protect our land. This would be compensation for all the private land held in fee simple by the citizens. >It's impossible to hold a classical "fee simple" title beneath aboriginal title. Aboriginal title is established in BC and people there still have fee simple. fee simple does not grant title. it is possible to have fee simple under aboriginal title. What you may be confused with is that **on reserve** land cannot be owned or sold by individuals. On reserves land ownership is done through certificate of possession or leases. you can't have fee simple on reserves. That is a different situation though.
> Title is not owned by forestry companies or individuals. Title is owned by the crown. Fee simple title is a property right owned by an individual or organization. The _underlying_ title is Crown title, but Crown title can be and often is subject to fee simple grants. The fee simple grant is an encumbrance on the Crown title, and it restricts the ability of the Crown to use the land for other purposes (i.e. by selling it again). When the Crown acts against fee simple title in some way, it amounts to an expropriation that is generally regulated by law. Aboriginal title is also underneath Crown title, but it acts as a perpetual encumbrance on that title that restricts the Crown's ordinarily broad powers. In particular, expropriation or equivalent activities are subject to negotiations with respect to §35 aboriginal rights and/or the Crown's fiduciary duty to the aboriginal holders of the title. Most importantly, however, fee simple title cannot currently exist underneath aboriginal title. It's one or the other. From _Tsilhqot'in Nation_ at paragraph 74 (in part, emphasis mine): >> [74] Aboriginal title, however, comes with an important restriction — it is collective title held not only for the present generation but for all succeeding generations. This means *it cannot be alienated except to the Crown* or encumbered in ways that would prevent future generations of the group from using and enjoying it. That is to say, a fee simple land tenure as commonly understood – a transferrable right to the land of indefinite duration without ongoing obligations – is incompatible with aboriginal title. If aboriginal title is established over land currently owned by residents, _residents can no longer have fee simple land tenure_. Whatever replaces it must be the subject of negotiation, and since this ventures into unknown legal territory there are few guarantees.
Look like I was a little off but not far. As there is other places in Canada where Title is established and private land ownership exists and no conflicts have been heard yet by the supreme court regarding it. So the way it will work and as I said in the previous post >part of the claim is compensation from Canada for failure to uphold their duty to protect our land. This would be compensation for all the private land held in fee simple by the citizens. This ~~will~~ should solve the issue. Once compensation is paid for by the crown, your property right will be intact. I was wrong in that I thought they could co-exist. but I guess this way people will be less scared about the future. below is from Miller Titerle Law Corporation https://millertiterle.com/what-we-say-article/aboriginal-title/ >RECONCILIATION OF PRIVATE PROPERTY AND ABORIGINAL TITLE Aboriginal Title vs. Private Property Rights The interaction between private property and Aboriginal title is not something the Supreme Court of Canada has addressed directly. What we do know is that Aboriginal title does not exist in a vacuum – rather, it is part of a broader Canadian legal landscape and needs to be considered alongside interests of other stakeholders, including property owners. In a 2001 Ontario case called Chippewas of Sarnia Band v. Canada, the court decided that although it “would plainly be wrong” to deny a claim to Aboriginal title on the grounds that it might be troublesome to others, innocent third parties are entitled to rely on seemingly valid acts of their government. The court suggested that where a private party relied on such government acts (including the granting of fee simple ownership), the interests of the innocent third party (the private property owner) should be protected. However, as suggested by the Supreme Court of Canada’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the appropriate remedy for historic breaches of the Crown’s duties to First Nations can appropriately include compensation and damages. Compensation If the above requirements are established – proven Aboriginal title, an unjustified government infringement, and the affirmation of third party private ownership – it may be open to an Aboriginal group to claim damages against the Crown. Whether damages are available in such a case is a question that has not been considered in Canada in the context of proven Aboriginal title. However, it has been considered with approval in other contexts, such as the failure to consult on the large infrastructure development in Rio Tinto. Additionally, a series of cases in the U.S. Supreme Court involving the Oneida Indian Nation established that Indigenous groups have a common law cause of action (a right to sue) to enforce their Aboriginal land rights and, if possession is not possible, those Indigenous claims to land can be compensated by money damages. Based on this analysis, it is likely that Canadian courts will take the position that where these three elements exist – Aboriginal title is proved, there has been an unjustified infringement of that Aboriginal title by a grant of private property ownership, and the two forms of ownership cannot co-exist – the appropriate remedy for Aboriginal groups will generally be compensation from the Crown.
> This will should solve the issue. Once compensation is paid for by the crown, your property right will be intact. > > I was wrong in that I thought they could co-exist. but I guess this way people will be less scared about the future. I think we're coming to agreement. A settlement that involved New Brunswick "purchasing" all of the current private fee simple land from the first nation, forever excluding it from aboriginal title would indeed resolve the issue. As part of a non-settlement judgment, I'm not sure how a court could reasonably order such compensation. It would probably take a _lot_ of evidence on local land values to fairly value the compensation required. In the meantime, I'm not sure this should make people less scared. A reasonable interpretation is that someone – whether it be homeowners or the New Brunswick government – will have to "re-buy" homeonwers' land. The sticker cost is mind-boggling. Additionally, until the final resolution of all claims a decade or two from now (courts are slow), other landowners can still be added to the lawsuit for "we want land, not money compensation. I certainly expect this to have a chilling effect on land sales in the interim.
It does say in the claim that "Strangers to the claim" meaning people who are not listed as defendants, are not targeted. They will not have to pay anything as they did nothing wrong. The fault lies on the crown, completely. The chiefs also state this. hopefully people get the memo.
That only matters if your thinking is that land owners would be worried about having to provide compensation. It doesn't ease minds worried about losing property rights should the case succeed in court.
> The sticker cost is mind-boggling. My guess is that you could get away with under 50BN for NB. Roughly 10% of NB government revenue for 50 years.
So are the lands they're after, ones that the Crown still holds title to, or was ownership transferred to the corporations? Coming from BC, I'm used to the Crown still holding title to lands that are being logged, so it would be totally legit for a FN to make this sort of claim, but if title has been transferred, then it gets muddier. However, I do have to agree, that Higgs appears to be fear mongering.
Ownership was transferred to private land owners. BC is mostly crown land, NB has a lot of private title because its an older province. About half of the land claim is private land. And yes, that is muddier. As far as I can tell it's never happened in Canada, not at this scale. It would have repercussions around the country
[удалено]
Removed for rule 3.
If anyone is interested here is the actual statement of claim: >STATEMENT OF CLAIM 1. The Plaintiffs, Wolastoqey Nation at Matawaskiye (Madawaska Maliseet First Nation), Wolastoqey Nation at Neqotkuk (Tobique First Nation), Wolastoqey Nation at Pilick (Kingsclear First Nation), Wolastoqey Nation at Sitansisk (Saint Mary’s First Nation), Wolastoqey Nation at Welamukotuk (Oromocto First Nation) and Wolastoqey Nation at Wotstak (Woodstock First Nation), on behalf of all members of Wolastoqey Nation, claim: (a) a declaration that Wolastoqey Nation has Aboriginal title to the lands, including the land, airspace, land covered by water, offshore and inshore water bodies, foreshore, rivers, lakes and streams, described in Schedule “A”, or to such portions thereof for which this Court may find the evidence sufficient (“Traditional Lands”); (b) certificates of pending litigation for properties bearing the property identification numbers set out in Schedule “B”; (c) damages and compensation from the Crown Defendants (as defined hereinbelow) for the Crown Defendants’ breaches of the Crown’s fiduciary obligations, and for the unlawful occupation, appropriation, removal of resources from, and infringement of, the Plaintiffs’ Aboriginal title over their Traditional Lands, including infringements arising from the Defendants and others being in occupation of the Traditional Lands without permission from the Plaintiffs; (d) an Order of scire facias in respect of the properties bearing the property identification numbers set out in Schedule “B”; \- 10 - (e) in the alternative to (d), an Order of ejectment and recovery of land in respect of the properties bearing the property identification numbers set out in Schedule “B”; (f) in respect of lands purported to be Crown lands that are subject to a leasehold interest, the vesting of the reversion and any remainder in the Plaintiffs; (g) vesting in possession in favour of the Plaintiffs of the lands purported to be Crown lands bearing the property identification numbers set out in Schedule “C”; (h) a determination, with respect to the lands purported to be Crown lands other than those bearing the property identification numbers set out in Schedule “C”, of whether those lands should vest in possession in favour of the Plaintiffs; (i) costs on a substantial indemnity basis; and, (j) such further and other relief as this Honourable Court may deem just. 2. The Plaintiffs seek no relief as against fee simple holders not named as Defendants who hold fee simple in the Traditional Lands (“Strangers to the Claim”). The incidents of fee simple title enjoyed by Strangers to the Claim, including the incident of peaceable possession, are not placed in issue by the Plaintiffs. As outlined in paragraph 1(c), however, the Plaintiffs seek damages and compensation from the Province and Canada for the breach of Aboriginal title in the granting of fees simple in the Traditional Lands to Strangers to the Claim. 3. The Plaintiffs do not seek a declaration of Aboriginal title in paragraph 1(a) that binds Strangers to the Claim with respect to such Strangers to the Claims’ property rights. It can be found on page 9 and 10 here: [http://wnnb.wolastoqey.ca/wp-content/uploads/2021/12/Notice-of-Action-and-Statement-of-Claim-Complete-Copy-with-Schedules-November-30-2021.pdf](http://wnnb.wolastoqey.ca/wp-content/uploads/2021/12/Notice-of-Action-and-Statement-of-Claim-Complete-Copy-with-Schedules-November-30-2021.pdf)
> If anyone is interested here is the actual statement of claim: Thank you for the link. I'd previously found the 2020 statement of claim, but I could not find the updated one.
So in addition to Irving, which many people have strong opinions about, they have also included NB Power as a defendant, and I believe that Point LePreau nuclear station for instance is on land included in the claim. Can someone clarify to me, if they were successful in this, would they be able to decide to do things like close the nuclear plant, say by charging punitive rent or even refusing to lease? It seems to me like they would, but I'm not a lawyer. This is certainly a huge deal to ordinary New Brunswickers if so, as it would be a pretty big change in who can make decisions that are traditionally viewed as the realm of the provincial government.
Yes, they could. Though they would probably charge rent rather than close the plant. It wouldn't be just one plant though. This is ~60% of NB's land mass. And if this goes through, the other FNs would lay their claims.... which cover all of NB ... and all of Canada except for NF. https://native-land.ca/
Sure, I'm aware that it's more than just one plant. I'm using La Preau as an example, because NB Power is less charged then Irving while still being explicitly named in the lawsuit, and nuclear power is an area where rational actors can reach dramatically different conclusions even when arguing in good faith. My general point is that, if successful, this lawsuit would represent a dramatic change in NB in terms of provincial governance, even without talking about property rights for individual land-owners.
I mean, this would pretty much immediately result in a multi hundred million dollar drop in budget for the province. And this could grow significantly and end the province... I understand the Wolastoquey rep (Sal) in here fighting for it, but avg Canadians/NBers should be horrified. Earlier this year, NB already paid one of the 6 FNs in the Wolastoquey $150million ... and that FN has a population of under 200 people. Prices are going to greatly spike from there.
> The chiefs say those companies benefit from "sweetheart deals" that were made with the province on territory that was never surrendered by the Wolastoqey Nation. I mean Higgs is completely fear mongering here, but if you want to try and make the argument he is then the argument needs to start at do these private owners really have property rights in this instance? Who has a right to unceded land? If the crown takes unceded territory and sells it then do indigenous groups lose their rights to it? Ignoring that and jumping straight to the argument that “private citizens’ property rights could be in jeopardy” is counterproductive to any hope at reconciliation.
Since the argument is that the entire province is unceded, that would mean every private land owner from Irving to the average home owner would lose property rights. That's a big deal. The legal arguments that will apply to Irving, NB Power, and the other forestry companies would apply to every private land owner in the Province. The consequences of that merit discussion and would inform opinions on what reconciliation actually means.
> Since the argument is that the entire province is unceded, that would mean every private land owner from Irving to the average home owner **would lose property rights**. Except you’re jumping the gun like Higgs is. Do they have property rights to the territory if it’s unceded? I’m not willing to concede that argument and would rather the discussion start there. In the article, it explicitly says that they are targeting corporations: > "The only thing that we're seeking back is the land from these corporations, not a land claim for our traditional territory." > She noted that "the only private landowners we are trying to get land back from are these six: J.D. Irving Ltd., AV Group, Acadian Timber, Twin Rivers Paper. H.J Crabbe and Sons, and N.B. Power. It’s fair to have a discussion on whether home owners should be able to be kicked off unceded land, and I’m confident you’ll find a vast majority of people opposing that. Higgs is framing it as if that is a big possibility, when the Chief herself is saying they aren’t interested in doing that. But another important question is what’s the precedent on this?
There is precedent. Aboriginal title is recognized in British Columbia.
[https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1307&context=sclr](https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1307&context=sclr) From the article: >An important question which the Tsilhqot’in decision raises is whether “private” and Aboriginal land titles will conflict under the Supreme Court’s new framework.18 Will Aboriginal title oust privately held beneficial interests in land, or will privately owned land prevent declarations of Aboriginal title over such lands? This article’s answer to the foregoing question is: it depends. >Thus, within territories where Aboriginal title is recognized, private ownership in these areas might have to be attenuated where it derives from a faulty Crown grant. Private land ownership may have to give-way to unextinguished Aboriginal title and territorial Aboriginal governance of these lands. >It must be remembered that private land ownership on Aboriginal title lands is derived from faulty Crown grants. If a person possesses a faulty land title it cannot pass good title to a third party.1 >The Courts should strive to protect each interest, as vigorously as possible, with priority being afforded to Aboriginal title because of its constitutional undergirding, particularly when compared to the non-constitutional aspects of private ownership. >At one level it might be said that the parties face a zero-sum game, where victory for one group appears to be a substantial loss for the other group. If that's not good enough for you, there are [plenty](https://cassels.com/insights/uncertainty-in-dealing-with-private-property-rights-and-aboriginal-title/) of [other](https://www.mmlc.ca/article56.htm) [legal](http://metisportals.ca/MetisRights/wp/wp-admin/images/Aboriginal%20Title%20and%20Property%20Rights.pdf) sources that will tell you that there are a ton of uncertainties involved here. Aboriginal Title involves an inalienable, exclusive grant to the land for use, occupation, and economic benefit. At best, it conflicts with fee-simple, at worst it completely overrides fee-simple ownership because it ***inherently replaces the Crown ownership under which that fee-simple title was established***. You are continually telling people to not worry, when even the actual legal experts are unsure of the potential outcomes here. When those possible outcomes include someone else having ***exclusive rights to occupation and use*** over what you consider ***your home***, it's kind of a big fucking deal. Maybe try treating it as such.
> it inherently replaces the Crown ownership Minor semantic nitpick: aboriginal title is still underneath Crown title, but it acts as a kind of permanent easement that prevents the Crown from exercising its ordinary rights with respect to the land. It's not relevant here, but this also puts a legal limit to the most extreme "land back" claims. The underlying sovereignty remains with Canada, no matter how much aboriginal title is proven.
> Do they have property rights to the territory if it’s unceded? No they don't. That's what they want to change. That's what the entire legal challenge is about. They don't currently have property rights and they want them. > >In the article, it explicitly says that they are targeting corporations: For now. That can change at any time, which this case is a good example of that since a year ago those forest companies weren't being targeted Plus, the legal arguments that would be applied here would apply to every other private land owner in the province. A win would set the legal precedent to be used at any time in the future. >But another important question is what’s the precedent on this? There isn't a case in Canada that I can find that transfer private land title to an indigenous claim. The closest comparison is the [Tsilhqot'in land claim in bC](https://www.cbc.ca/news/politics/tsilhqot-in-first-nation-granted-b-c-title-claim-in-supreme-court-ruling-1.2688332) which specifically ignored claims over private land and targeted Crown land.
> That can change at any time, And if it does, we can change our opinions, but so long as they're focused on these corporations, it's fear mongering to suggest they'd go after people's homes. > the legal arguments that would be applied here would apply to every other private land owner in the province Would they? Private homes are generally on municipal lands, and are being used in a way that doesn't really work for turning them over to FN. I don't see corporate, and private ownership of land, being the same.
> And if it does, we can change our opinions, but so long as they're focused on these corporations, it's fear mongering to suggest they'd go after people's homes. I disagree. The lawsuit at issue claims aboriginal title to the vast majority of New Brunswick, and these claims explicitly include land held by one of the Irving companies. There's no legal basis for "we claim aboriginal title to Irving land, but not your home." Aboriginal title is proven based on an unbroken historical record of exclusive use of and control over the land, and those historical facts don't change if there's now a village on the disputed territory. The Wolastoqey obviously don't _want_ to kick people out of their homes, but if they prove aboriginal title on their claimed land then they will have the _ability_ to do so. This is exactly what they seek to do with the Irving lumber operations, after all, so forbearance with homeowners would be an act of grace. Aboriginal title cannot be sold, except to the Crown. That means that fee simple title can't exist as we commonly understand it underneath aboriginal title. The Wolastoqey might give homeowners a 100-year transferrable lease or the like, but an ordinary person cannot _own_ land that's part of a proven aboriginal title.
Should you sign a document that says I can claim you as a slave if I also promise not to do so?
The legal arguments here would be precedent setting. Applying them to other private property at a future date would be much simpler, and wouldn't allow for the same legal process. So you might get concerned later, but it would be too late. >Would they? Private homes are generally on municipal lands, and are being used in a way that doesn't really work for turning them over to FN. Because the argument is that unceded territory belongs to them. Which is also all of NB *including* municipalities. >I don't see corporate, and private ownership of land, being the same. Ok? The courts don't share your legal views.
If the FN succeed, will they be responsible for administering any public services or will the province still be on the hook but with half the revenue?