JD Irving, other companies want to appeal decision that releases them from land claim
JDI appeal says original claim against them should be dismissed or they should be reinstated as defendants
Normally when defendants are released from a court case, it's considered a win.
But more than a dozen New Brunswick companies previously named in an Aboriginal title claim aren't happy with the judge's decision to remove them.
Launched in 2021, the lawsuit asserts title to more than half of New Brunswick.
So far, three notices of motion for leave to appeal have been filed, claiming Justice Kathryn Gregory erred in her decision to remove the industrial defendants in the title claim by the Wolastoqey Nation.
In a decision dated Nov. 12, Gregory said the fight for the defendants' land should be between the Wolastoqey Nation and the Crown. She wrote that although she was releasing the industrial defendants, their land was still on the table. She said if the land was to be returned, it would have to be done by the Crown.
So far, appeal requests were filed by Acadian Timber Limited, H.J. Crabbe & Sons, Ltd., and one referred to as the JDI intended appellants, which represents 13 companies, including J.D. Irving Ltd.
Lawyers for Acadian Timber and H.J. Crabbe & Sons declined interview requests, while a spokesperson for J.D. Irving declined a similar request.
According to the JDI appeal, they're looking for one of two things — for the original claim against them to be dismissed or that they "be reinstated as proper party defendants to this action with full rights of participation therein."
The JDI court document said Gregory's decision to remove all industrial defendants from the case "was neither requested by the JDI Appellants nor contemplated by the Rule pursuant to which their motion was brought."
Removing them leaves them without a voice in the fight over land that they own, according to their notice of motion.
The JDI appellants said it is unfair to allow the Wolastoqey Nation to "maintain a claim" of Aboriginal title against their property "while, at the same time, excluding the JDI Appellants from participating in this action thereby depriving them of their right to be heard and to make submissions regarding their fundamental property rights."
The notice filed by H.J. Crabbe & Sons said the judge erred by not allowing the company to defend its property from the plaintiffs' claim, thereby depriving them of "a fair hearing, natural justice, fundamental justice and due process of law."
Wolastoqey Nation response
When contacted Monday about the appeal, a spokesperson for Wolastoqey Nation in New Brunswick emailed a response that stated, "Justice Gregory's decision reinforces our position that negotiation between the Wolastoqey Nation and the Crown is our preferred approach in that it can best address our Rights and everyone's interests."
The statement goes on to say that the communities "hope to pursue negotiations with the province while this litigation proceeds.
"We do not want these recent tactics to get in the way of making progress in discussions with the Minister on our Title."
The Wolastoqey Nation said it never gave up title to its territorial land when Peace and Friendship Treaties were signed with the British Crown in the 18th century.
It wants title over all of its traditional territory — nearly 253,000 parcels of land — and the outright return of about 5,000 properties held by the Crown and the defendants specifically listed in the claim, most of which are privately held companies involved in the forestry industry.
The chiefs of Wolastoqey communities have always maintained they are not trying to take back the property of individual homeowners.
Treaty veteran doubts court would take private land
"I know people are worried about this case," said Jean Teillet, a retired lawyer and a treaty negotiator for nearly 30 years for First Nations.
"I think that our courts would be very, very hesitant to overturn the Canadian land ownership system. In fact, I doubt they would do it. I don't think they would ever go that far," said Teillet, who appeared before the Supreme Court of Canada on 12 separate Indigenous rights cases over the years.
She doesn't think the courts would "allow the expropriation of — or the overturning of — our entire property system in the country. It would create chaos and I don't think that's ever going to happen."
Teillet said there are many examples of Crown land being returned to Indigenous communities, but not privately held land.
"So again, I can't see the government telling them that they have to sell their land," said Teillet, unless it's a "willing seller, willing buyer."
"There's no expropriation of private land going on in treaty negotiations."
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