Indigenous lawsuit 'unprecedented in this country,' says lawyer

Hugh Cameron raised a big white binder several inches thick with both hands in the air and let it drop to the courtroom table in front of him with a thud.

The lawyer representing Acadian Timber wanted to emphasize to the judge in front of him on Wednesday that it would be absurd to force the company and several other tree-cutting firms to provide a Wolastoqey Nation lawsuit to prospective buyers of their land or lenders who need property as collateral.

The Wolastoqey Nation wants its traditional Indigenous territory back that encompasses all western New Brunswick and has filed legal proceedings against the big tree-cutting firms, seeking certificates of pending litigation.

Such certificates would provide official court notice to the public that a property was subject to a legal dispute and could prevent the owners from selling or mortgaging their properties until title was cleared up.

Short of that, the legal team for the Wolastoqey Nation has asked Justice Kathryn Gregory to order the companies to do the job of notifying prospective buyers themselves.

They say they're concerned future landowners might argue they didn't know about the lawsuit and could tie up the expensive litigation for years to come. The nation says it never ceded its territory, which has been robbed by settlers over more than two centuries.

A hill to climb

Cameron had the most dramatic flair of the eight lawyers making submissions over three days at the Saint John Court of King's Bench. He argued that given the case's public notoriety, anyone doing business with Acadian would already know about the land dispute.

"They want to hamstring these defendants."

He said what the nation was seeking - the repossession of 5,028 parcels of vast forests owned by the big companies - was "unprecedented in this country."

Looking intently at the judge, he said proving the Wolastoqey case was "the hill they have to climb. But they want you to help them get there.

"They want to hamstring these defendants until the matter is disposed of in a case that, for all we know, could take decades."

With "a few clicks of a mouse," Cameron added, someone could find the lawsuit on the Government of New Brunswick webpage, not to mention word of it in its filed documents, as Acadian Timber is a publicly traded company on the TSX.

He said even when he turned off his phone alarm early Tuesday morning, a story on the court case popped up on his news feed, courtesy of Brunswick News.

Stock price pondered

Arguing on behalf of the Wolastoqey Nation, Jaclyn McNamara, a lawyer from OKT law firm in Halifax, objected to much of what Cameron had said. She pointed out that the companies provided no concrete evidence their businesses would be hampered by proper legal notification, and questioned if Acadian Timber had suffered thus far, asking why it had not provided evidence that its stock price had fallen.

Although the question was never answered in court, the stock price listed on the TSX over the last five years shows Acadian Timber's biggest plunge happened when the pandemic shuttered much of Canada in March and April 2020. Bottoming out at $12.02 a share before the lawsuit was filed in late 2021, the stock price has hovered between $14.56 and $18.69 over the last year.

Property law in the province, governed by the Land Titles Act and the New Brunswick Registry Act, does not include a provision for aboriginal title, even though the Supreme Court of Canada has recognized it for other Indigenous communities. McNamara said that procedural gap had to be filled someway, imploring the judge to act.

Forests twice the size of Luxemburg

Earlier, the province's biggest tree-cutting firm outlined what it said was at stake.

Lawyer Cathy Lahey, of Stewart McKelvey in Saint John, said a huge number of the parcels cited in the lawsuit, more than 2,000, were owned by J.D. Irving, Limited, which has extensive woodland operations and mills in several communities. It also employs 3,600 people.

The scale of the land in question is extraordinary, she said. J.D.I. owns 6,520 square kilometres of forest land named in the lawsuit, more than double the size of the country of Luxemburg.

"The industrial defendants are being used as leverage against the province."

Tying these lands up in litigation, Lahey warned "would essentially freeze the management and operation of the properties," putting thousands of jobs at risk.

She and lawyers for the other companies argued that the Wolastoqey Nation's real fight was with the government, which, if aboriginal title were proven, would be expected to provide compensation for allowing its traditional territory to fall into private hands.

"It would seem as though the industrial defendants are being used as leverage against the province," she said, warning of irreparable harm.

Given that the big firms had been telling the Wolastoqey Nation for two years it should drop its demand for certificates, they told the judge they expected her to award them substantial court costs.

But McNamara countered that her team had sought compromise plenty of times, in settlement discussions early on during the lawsuit and in official correspondence it sent in November 2022 to the parties.

"No counteroffer was made except to dispute the claim," she said.

A final flurry of arguments

Her side, led by Renée Pelletier of OKT law, has argued that they didn't include other property owners in the suit - there are as many as 200,000 parcels in the disputed territory - because it would make the litigation unmanageable.

Instead, the nation has targeted the biggest owners of the vast woods where the Wolastoqey traditionally hunted, fished and gathered. The six Indigenous communities that dot the Wolastoq, or St. John River, have a total registered population of 8,400.

The lawsuit has not gone to trial yet and many legal observers believe it will take years, if not a decade or longer, for the matter to be settled.

This week, two pre-trial motions were heard - one by the defendants asking the judge to strike down the demand for certificates of pending litigation, and one by the Wolastoqey side seeking an alternative remedy, such as ordering the firms to provide legal notice to potential buyers.

While Gregory hasn't ruled on those motions yet, there was heated arguing when the proceedings were finally over Wednesday.

"This is a very complicated litigation."

The judge tried to arrange for the next several motions to be heard on the court calendar, likely in April and May. The Province of New Brunswick, Acadian Timber, H.J. Crabbe & Sons and J.D.I. are filing five in total.

A lawyer representing the attorney general's office for the Government of Canada and the Wolastoqey Nation team said over and over they needed more time to respond to the legal briefs being fired at them.

"This is a very complicated litigation," Justice Gregory said, removing her bifocals. "So I absolutely have no problem with people taking the time they need."

But the lawyers packed in the room couldn't agree how long they should have to respond to the legal briefs and when they should be heard.

"Stop," the judge ordered after several lawyers had raised their voices and spoken over each other. "If you can't agree, I'll make the decision tomorrow or at the latest Friday."

John Chilibeck, Local Journalism Initiative Reporter, The Daily Gleaner