Wolastoqey Nation can't 'pick and choose' whose land it want Wolastoqey Nation can't 'pick and choose' whose land it wants: Irving lawyer
New Brunswick's biggest timber company argued in court Tuesday that large landowners have become the favourite part of the menu in the Wolastoqey Nation's title claim.
Thomas Isaac, a lawyer working for J.D. Irving, Limited, was in the Court of King's Bench as part of a landmark case that involves more than half of New Brunswick's territory.
The company and two other firms - H.J. Crabbe & Sons, and Acadian Timber - have put forward motions asking Justice Kathryn Gregory to remove them from the claim, which includes the province, Ottawa and 25 companies as defendants.
Crucially, the claim does not name tens of thousands of private landowners whose smaller properties are also in traditional Wolastoqey territory in western New Brunswick. The Indigenous leaders whose six small communities launched the claim say they're not interested in the homes and businesses of everyday people.
This has opened a door for the bigger companies to question why they've been singled out.
"Aboriginal title is not a menu from which they can pick and choose," Isaac told the judge. "Whatever you want to call it, an la carte menu or whatever, it's a novel concept of Aboriginal title that ignores the fundamental definition that the Supreme Court of Canada has established."
There's a lot up for grabs. J.D.
Irving, Limited is by far the biggest private landowner in the province, including the largest portion of what the Wolastoqiyik are after.
All told, the claim includes 3.2 million acres of private, forested land owned by several timber firms which the provincial government says is worth $22 billion in assessed value.
The Wolastoqiyik also want nearly five million in Crown land turned over to them, which belongs to the provincial or federal governments.
Isaac, who is originally from the Maritimes but now works for Cassels law firm in Vancouver, spent much of the morning and afternoon pouring through previous court decisions to show the judge that what the Wolastoqiyik want is at odds with established case law.
While supporting the Wolastoqey right to claim Aboriginal title - a bundle of communal Indigenous rights that's been recognized by the Supreme Court of Canada - he argued it could not override what's known as fee-simple private property rights.
Private property rights are defined as giving the owners exclusive control, with exceptions.
"A single parcel of land can't have 'exclusive rights'between two rights'holders," Isaac said. "You can't have two parties having exclusive property rights to the same thing."
Instead, Isaac said the real quarrel was between the Crown - or the provincial government - and the Wolastoqiyik. It was up to the British Crown, and its successor government in New Brunswick, to help protect traditional Indigenous territory, instead of issuing land grants to settlers, Isaac said.
The government, he said, should compensate the Wolastoqey for the loss of their territory, which was never ceded or surrendered, and Indigenous leaders should leave "innocent private landowners" alone.
Tag-teaming with Isaac, Paul Steep, from the law firm McCarthy Tetrault in Toronto, told the judge that the Wolastoqey Nation's statement of claim failed on a basic level because it did not spell out why the timber firms were being sued. He went through it for several hours, sometimes word for word.
"There's no allegation of breach of duty by JDI" he said. "There's no wrongdoing cited, no concealment, no misconduct, no misrepresentation. When you read the claim, you will see breaches of duties alleged against the Crown."
The case continues Wednesday with arguments from lawyers representing H.J. Crabbe and Sons and Acadian Timber.