Keswick couple suing province's archeologist, claiming abuse of office

A Keswick couple is suing provincial archeologist Brent Suttie and the province, claiming he used the alleged discovery of an arrowhead years prior to thwart their plans to build a retirement home next door to his house in Douglas.

Rocky and Cassie Brawn allege Suttie threatened to have their land locked down as an Indigenous archeological site with one call to the minister of tourism, heritage and culture, who oversees the archeology and heritage branch.

They say the province subsequently agreed to buy their property for $154,200, but backed out of the deal at the last minute, according to the statement of claim, filed with the Court of Queen's Bench in Fredericton.

None of the allegations have been proven in court.

Suttie could not immediately be reached for comment.

Asked for a comment about the lawsuit and Suttie's employment status, given the allegations, Tourism, Heritage and Culture spokesperson Jeremy Trevors said the department had no comment on the matter.

But the department "reiterates its confidence in its staff and its commitment towards the conservation of archeological sites throughout the province," he said in an emailed statement.

Fredericton lawyer Gordon Shepard, who is representing the Brawns, declined to comment.

Case dates back to 2012

The Brawns acquired the property at 1315 Route 105, on the shore of the St. John River, on March 22, 2012, and began site work soon after.

They claim Suttie, who lives at 1311, was aware of their development activities, which included excavating, cutting down trees and removing stumps, hauling in truckloads of fill, levelling and compacting, and digging a test pit for a septic system, all with the help of heavy equipment over six years.

He even gave them two rolls of road-building fabric he had leftover from a project, according to the court document.

Suttie "took no action whatsoever" to stop them — even when they removed soil about 50 metres from where an arrowhead was allegedly discovered by someone picking fiddleheads in 2012.

Nor did he notify the Brawns of the existence of "the archeological find and its implications" for their plans.

The couple had also applied for various development permits from the province during this period, which were approved with no mention of any arrowhead, according to the court document.

Offers to buy lot rejected

It was only in June 2018, after they subdivided their property and Rocky Brawn told Suttie's wife he would be cutting trees on his side of the dividing property line to build a new home that problems started.

Suttie told Brawn he "would not tolerate" him cutting any trees near the boundary, expressing concerns about drainage as well as a reduction in privacy.

He asked if Brawn was interested in selling him the vacant lot. When Brawn said no, he offered to buy a 10-foot wide strip. Again, Brawn declined.

Suttie responded by informing Brawn that he was the provincial archeologist and he would "stop any further cutting on the property by calling 'the minister' and having the plaintiffs' property designated as a 'no future development area,'" the lawsuit claims.

"It was at this point for the first time, that Suttie revealed that an 'arrowhead' had been found on their property."

Costly to report

Suttie told Brawn he had registered the artifact but never reported it to the minister because "it puts my land at risk," according to the court document.

He explained test holes would have to be dug at a cost of $300 each and if any artifacts were found, the area would need to be excavated at a cost of $7,500 per square metre at the owner's expense.

"Suttie made it clear to Mr. Brawn that the Brawns were not going to be able to build on their lot if Suttie reported the arrowhead to the minister, and repeated his offer to buy the plaintiffs' lot." Brawn said he'd think about it.

On June 20, Brawn visited the provincial archeological services office in Fredericton and was told no artifacts had been registered in connection with the properties. He was advised he was "free to break ground and commence building."

So the couple proceeded to cut trees and hauled in 200 truckloads of fill, which was levelled and compacted.

But in early September, the Brawns decided they would sell their lot rather than build, "out of concerns over Suttie's threats to interfere."

Never inputted in computer system

About a week later, Suttie told Brawn the property search done by Karen Narvey at the archeological services office was incorrect and they would be hearing from the office about the artifact. He asked again if they would be willing to sell him their lot.

Around Oct. 3, they were advised an artifact had been found on the property but hadn't been inputted into the department's computer system.

According to a Maritime Archeological Resource Inventory form, dated May 16, 2012, an alleged artifact was found on an unknown date and submitted to archeological services on April 18, 2012.

Suttie alleges in the form that the artifact was found on the shore near the southern boundary of the Brawns' property.

Suttie's subsequent report to the minister of tourism, heritage and culture has led to their property being designated as within the 200-metre site protection buffer of a registered pre-contact Indigenous archeological site.

'Wilfully withheld properly reporting'

The Brawns contend they exercised due diligence by asking the archeological services office about the existence of any registered sites and relied on the advice of the branch in their decision to continue development of the lot.

Suttie, meanwhile, "wilfully withheld properly reporting and registering" the discovery of the artifact to the minister, "contrary to his statutory duty" under the Heritage Conservation Act, according to the statement of claim.

This prejudiced their ability to ascertain the existence of the archeological site as an impediment to their development plans for the lot and they had to abandon their plan to build their retirement home, the Brawns contend.

They further allege Suttie used the threat of revealing the 2012 archeological discovery to the minister with malice, to pressure them to sell to him.

He used the power of his office "in bad faith" and the province is liable for the actions of its employee, they claim.

Intimidation and misfeasance

In addition, they claim once they learned Suttie followed through with his alleged threat to have their property designated an Indigenous archeological site, "they pursued resolution of the situation involving Suttie with the province" through the office of the minister.

They say the province had agreed to purchase the lot for $150,000 and to cover legal fees of $4,200. They were assured the funds had been allocated, but the COVID-19 pandemic and Sept. 14, 2020 provincial election had delayed closing the deal, according to the court document. They were asked to remain patient, it states.

Then, on Dec. 10, they were advised the province "does not have the authority" to purchase the property.

Against Suttie and the province, the Brawns are seeking damages in an amount to be determined by the court, based on the torts of intimidation and misfeasance of public office.

Against the province, the Brawns are seeking a declaration that they're entitled to be paid $154,200, or damages for breach of contract or damages for breach of duty to act in good faith in its contractual dealings, as well as special damages for money "wasted" developing the property.

They are also seeking legal costs and any other relief the court deems fit.

No statements of defence have been filed yet and a hearing date has not yet been set.