N.B. employees told to stop making Indigenous title acknowledgments, but won't face repercussions if they do

New Brunswick's Attorney General Ted Flemming says provincial employees will not face repercussions if they don't follow a new directive to stop making First Nations title acknowledgements.

Flemming issued a memo with the directive Thursday, a move he said was provoked by legal actions against the government involving Indigenous rights and land titles. Instead, the memo said employees must only use an "ancestral acknowledgement" approved by the provincial government's protocol office.

Speaking to media Friday afternoon, Flemming said provincial employees operating outside the scope of their employment are "free individuals in a free society and a free country."

"There's not going to be any acknowledgement police or anything else like that. I mean, good grief, there would be none of that."

In recent years, land acknowledgements have become a regular practice across Canada to open public events and ceremonies. In New Brunswick, they typically recognize the Wolastoqiyik, Mi'kmaq or Peskotomuhkati, depending on where the acknowledgement is being made, and often indicate an event is taking place on unceded territory.

Flemming said the province was "forced" to take this position after a title claim was filed by Wolastoqey nations in 2020.

The claim alleges the province is not upholding the Peace and Friendship Treaties signed in what is now Maine, New Hampshire, New Brunswick and Nova Scotia between 1725 and 1779. According to the federal department of Crown-Indigenous Relations and Northern Affairs Canada, "Aboriginal peoples did not surrender rights to land or resources" in those treaties.

Flemming said he sent the memo because whether the land is unceded or not is still "unresolved."

Not allowed to say 'unceded,' 'unsurrendered

"As you may be aware, the Government of New Brunswick (GNB) is currently involved in a number of legal actions which have been initiated by certain First Nations against the province, including a claim to ownership and title to over 60% of the Province," read Flemming's leaked memo, which was later verified by a provincial spokesperson.

"As a result of this litigation, legal counsel for GNB and the Office of the Attorney General has advised that GNB employees may not make or issue territorial or title acknowledgements.

"This includes the use of territorial acknowledgements at meetings and events, in documents, and in email signatures."

Flemming wrote it may still be "desirable" to make an "ancestral acknowledgement," which is provided at the bottom of the memo: "We (I) respectfully acknowledge the territory in which we gather as the ancestral homelands of the Wolastoqey, Mi'gmaw and Peskotomuhkati peoples. We strive for respectful relationships with all the peoples of this province as we search for collective healing and true reconciliation and honour this beautiful land together."

"Please note the absence of terms such as 'unceded' or 'unsurrendered,' " Flemming wrote.

After Premier Blaine Higgs was re-elected in 2020, a land acknowledgement read by Lieutenant-Governor Brenda Murphy at the throne speech did not include the terms "unceded" and "unsurrendered" and consisted of one line: "We gather today on the ancestral territory of our Indigenous people."

The terms were also missing from Higgs's speech on opening day of the Assembly of First Nations' 40th annual General Assembly in Fredericton in 2019.

Flemming said Friday afternoon he had "never" used the words "unceded" and "unsurrendered" in his remarks since the claim was filed in 2020. He also said he would not police what teachers say in class, even though they're provincial employees.

'It's so disrespectful'

Oromocto First Nation Chief Shelley Sabattis said land title acknowledgements are an important part of recognizing that New Brunswick sits on land that was never surrendered to Europeans when they arrived and settled. She thinks Flemming's memo is a slap in the face to First Nations people.

"We were here since time immemorial," Sabattis said. "We were always here, and to be pushed aside and to be taken over to follow a more dominant society or more dominant culture, it just seems … ridiculous. It's like, it's so disrespectful."

Last year, Oromocto, along with five other Wolastoqey First Nations, filed a lawsuit with the province asserting title to their traditional lands along the St. John River, also known as the Wolastoq.

The claim covers about half the province and is ostensibly the same one Flemming was referring to.

The Wolastoqey Nation in New Brunswick, a group representing six Wolastoqey chiefs, released a statement decrying the memo.

"We were forced to file a title claim because our rights continue to be ignored by GNB. Now, in response to this, the Province seeks to further trample our rights and erase us from the history of this province," the chiefs said in the statement.

The chiefs said their unceded Aboriginal title in the province of New Brunswick is a "historical fact that the provincial government is simply going to have to come to terms with."

"The Wolastoqey Nation is not seeking the return of all of the land in its traditional territory through the title claim," they said. "We made it very clear when giving the Crown notice of our claim in October 2020 that we were not looking to displace homeowners in New Brunswick."

Sabattis said she's already heard from provincial workers considering what they should do in response.

"My suggestion is just to keep on doing it, keep on acknowledging the proper acknowledgement. It is unceded, for one, and it's unsurrendered. That's what's unique about New Brunswick, or the Maritimes, even."

Mi'kmaw chiefs question negotiations with province

The six leaders said Higgs's track record shows "his unilateral decision making without any Indigenous input."

"His disdain for our people bears out in the government's refusal to conduct a public inquiry into systemic racism, his shredding of our tax agreements, his aversion to implementing any of the 94 Calls to Action of the Truth and Reconciliation Commission."

The province did not make the National Day for Truth and Reconciliation a provincial holiday. Higgs also pulled out of a 10-year tax-sharing agreement, calling it "unfair."

After two First Nations people were killed at the hands of police within two weeks last year, the province did not answer calls for an inquiry into the justice system's treatment of Indigeous people, instead appointing an independent commissioner to address systemic racism against all groups.

Mi'gmawe'l Tplu'taqnn Inc., the group representing the Mi'kmaw chiefs, said in a statement that while Wolastoqey nations are litigating title claim to 60 per cent of the land, 100 per cent of the land New Brunswick falls on is unceded.

"While the Mi'gmaq communities we represent have not filed a claim in court, we have entered into negotiations
with the Province regarding recognition and implementation of our Aboriginal rights and title," the chiefs said.

"Unfortunately, this memo has us questioning whether the Province is negotiating in good faith, and whether these negotiations are even worth pursuing."

Legal expert questions authority of order

Mary Ellen Turpel-Lafond, a law professor at the University of British Columbia says the order set out in the memo appears to be legally unnecessary and could potentially undermine the opportunity for meaningful reconciliation with New Brunswick First Nations.

"First of all this, this is not an appropriate approach," said Turpel-Lafond, also a director of UBC's Residential School History and Dialogue Centre.

"Indigenous people in New Brunswick are entitled to assert their rights in the courts," she said. "What a public servant says or doesn't say by way of a greeting at a meeting is not going to be evidence that's going to sway and determine that."

Turpel-Lafond also questioned whether Flemming really has the authority to dictate what provincial employees can and can't say.

"I mean, that smacks to me like something that could touch upon racial discrimination and be, you know, quite harmful and not particularly culturally safe for the Indigenous employees in the government of New Brunswick."