Additional and overlapping claims

On February 15, 2023, Mi’gmawe’l Tplu’taqnn Incorporated (“MTI”) issued a press release stating their intention to have the Mi’gmaq title claim recognized. The formal claim to title of lands and waters in New Brunswick is significant. MTI issued a map, which has an area that overlaps with the land in area claimed by the Wolastoqey. More information on the MTI title claim area can be accessed at - MTI - Mi'gmawe'l Tplu'taqnn Inc (in English only).

In addition to the asserted and overlapping Aboriginal title claim of the Mi’gmaq communities represented by MTI, the Peskotomuhkati First Nation also claim traditional lands and waters within the Wolastoqey claim area. The Peskotomuhkati First Nation are currently seeking recognition of the Peskotomuhkati people in Canada from the Federal government. The Peskotomuhkati First Nation have not formally asserted an Aboriginal title claim; however, they have confirmed that the Wolastoqey claim asserts title to all Peskotomuhkati (Passamaquoddy) traditional lands and waters in Canada, which is a right that “does not exist.”

The Wolastoqey claim Aboriginal title, which is a legal term not created by legislatures or the Constitution but by Courts through legal decisions. As described by the Supreme Court of Canada, Aboriginal title would give the Wolastoqey the right of exclusive possession and use of the lands in question – the right currently enjoyed by private landowners in New Brunswick.

The Wolastoqey claim is unprecedented and results in the difficult situation where the impact on private landowners’ right in New Brunswick will be uncertain until the claim is fully decided, which could take up to 20 years. The Government is actively defending the Wolastoqey claim, as well as seeking an order from the Court to exclude any impact on private landowners and to protect their interests

The Wolastoqey have stated they will allow for “peaceable possession” by current owners of land not named in their claim; however, this statement is not legally binding and its implications are unclear. The Wolastoqey continue to ask for a declaration of Aboriginal title over all the land within their claim area, including the land of private landowners who have not been named in the Court documents. This creates uncertainty for private landowners with regards to the impact that the Wolastoqey claim will have on them in the future.  

The effect of the Wolastoqey claim on Crown land is clear: if the claim is successful, the Wolastoqey will have the right to the exclusive use and occupation of all Crown land in the area of the province subject to the claim. The Wolastoqey have not been clear on how they think their claim will affect the private lands of landowners. The Wolastoqey have also claimed every New Brunswick river and stream in their claim area as well as into the Bay of Fundy. There is no certainty as to how this will be interpreted by the Court or what the Wolastoqey intend to do if successful. Although Wolastoqey representatives have made public statements to the press, the legal documents filed with the Court provide no information as to what in fact will be the end result of the Wolastoqey claim as it relates to private land, both now and for future generations.

To date, no Court in Canada has ruled on the relationship between a claim like the Wolastoqey’s and fee simple title. The case presently before the New Brunswick Court of Kings Bench and the Government is unable to predict all the ways that a finding in favour of the Wolastoqey over private fee simple land will affect landowners in New Brunswick. As such, the Government must fulfill its duties to the public as a whole and ensure that the rights of fee simple landowners are balanced.

The claim refers to any other party that owns land in the claim area, whether private citizens, business, or other third parties, as “Strangers to the Claim.” Although these parties are not named as defendants, the claim is seeking a declaration of Aboriginal title against their property contained within the area outlined on the Wolastoqey map. This is unprecedented and the full implications are unknown.

In addition to the claim for the return certain land, a say in what occurs on private land, and various other items, the claim also seeks payment of damages by the Province of New Brunswick and Canada including compensation for all resources extracted from the land such as timber, minerals, and other items.

The Government is not able to state what the Court will do, or how this claim could change land ownership, or what impact a declaration of Aboriginal title could have, but the Government will update the public as the case progresses.

The Government as defendant takes the Wolastoqey claim seriously and will continue to safeguard and balance the interests of all New Brunswickers while at the same time looking for opportunity to resolve matters outside of Court.

In addition, the Government will have to consider how the Wolastoqey and Mi’gmaq claims co-exist or are in conflict as set out in these maps.