Expansion of land for maple syrup producers raises questions about treaty rights, forest management [video]

It might not be the sweet deal the Government of New Brunswick had in mind. 

When the province announced that it would expand the Crown land available for maple industry by 5,000 hectares, the New Brunswick Maple Syrup Association welcomed the news. 

But the president of that association has also criticized the province, calling on the government to revise forestry policies which he says are damaging native forests, including sugar maple stands. 

And a group representing Mi’kmaq communities in New Brunswick has condemned the provincial government over the decision.

Mi’gmawel Tplu’taqnn Inc. says the government failed to consult with First Nations ahead of the announcement. 

The province has defended its approach, stating in particular that consultations with First Nations will occur before any final decisions are made about expansions on Crown land. 

The dispute shows the contested nature of land and natural resources in the territory known as New Brunswick. 

5,000 hectares for maple production 

The newly available land will bring the total area for maple producers to 19,000 hectares over the course of five years. 

Existing sugaries will be able to apply for expansions, while new developments will go through a request for proposals process administered by Service New Brunswick. The deadline for new applications is Jan. 31, 2024.  

Forests cover about 6.1 million hectares of land in New Brunswick, and roughly half of that area is Crown land administered by the provincial government. 

MTI, a group representing the nine Mi’kmaq communities in New Brunswick, immediately condemned the move, saying in a media release that it learned about the plans on July 4, just before the province made the announcement. 

“There has been no consultation with Mi’gmaq communities on a Crown Maple Resource Strategy or the lands being used to expand the maple sugar industry,” MTI stated.

The provincial government didn’t respond to interview requests, but provided a statement attributed to Minister of Aboriginal Affairs Arlene Dunn. 

She said the consultation process was formally initiated on July 4, the date of the announcement.

“The provincial government is carrying out the Duty to Consult process with First Nations while also seeking interest from current and future maple sugar producers,” she said. 

“The consultation process with First Nations will be completed before any final decisions are made regarding future projects.”

Chief Terry Richardson of Oinpegitjoig (Pabineau) First Nation said consultations should have happened before the announcement. 

“It’s almost like they’re doing it backwards,” he told the NB Media Co-op. “This premier just doesn’t understand consultations, and it’s going to come at a cost to this province.”

MTI has stated that “we may be left with little choice but to challenge the validity of these leases” if their concerns aren’t addressed. Richardson also said the matter could end up before the courts. 

Duty to consult 

The duty to consult stems from Section 35 of the Constitution Act, 1982, which recognizes and affirms Indigenous and treaty rights. 

The government is obligated to engage in consultations in order to protect those rights, a doctrine that emerged from a series of decisions in the Canadian court system. 

New Brunswick’s duty to consult process, as outlined on the government’s website, starts with an initial assessment “to determine whether there is potential for an adverse impact to established or asserted Aboriginal and Treaty rights.”

MTI has suggested the expanded area may affect traditional hunting grounds, places where plants or medicines are collected, or sacred locations where ceremonies are practiced. “That’s why you engage in the consultation process,” Richardson said. 

The controversy over maple syrup production comes as New Brunswick faces the complex legacies of colonialism.

The federal government has acknowledged that the Peace and Friendship Treaties, signed between the British and Indigenous people in the mid-1700s, “did not involve First Nations surrendering rights to the lands and resources they had traditionally used and occupied.”

Earlier this year, MTI asserted title to land and waters amounting to roughly half of the province of New Brunswick. 

Wolastoquey Nation previously asserted title in the western part of the province. 

In October 2021, Attorney General Ted Flemming issued a memo banning civil servants in New Brunswick from making territorial land acknowledgements, a flashpoint in the tense relationship between the Higgs government and First Nations. 

At the time, the provincial government cited the ongoing land title case filed in court by the Wolastoqey Nation for the move. 

Maple under pressure from forestry

Frédérick Dion, president of the New Brunswick Maple Syrup Association, said maple stands in New Brunswick are under considerable pressure from the forestry sector. 

He said the province has effectively handed over management of New Brunswick’s wilderness to forestry companies which specialize in plantation-style softwood. 

“[New Brunswick] simply gave the keys to our public lands to the forestry industry,” he said in an interview with the NB Media Co-op, in English translation. 

Dion, who is the co-owner of a 3,000-tap maple grove in the Chaleur region, said the forestry industry has diminished sugar maple stands surrounding the property over the years. 

He recalled how one parcel near his property was clearcut and then sprayed with herbicide to prevent hardwood trees from growing back.

Sugar maples are characteristic of the Acadian-Wabanaki forest, but practices such as the spraying of glyphosate have altered the makeup of the New Brunswick wilderness.

An update report on the state of New Brunswick’s forests from the Department of Natural Resources has been delayed, prompting criticism from Green Party Leader David Coon, the CBC reported this week.

As for consultation with First Nations, Dion said the association does not dispute Indigenous and treaty rights. 

He said maple producers want to work with First Nations, but noted that negotiations are the responsibility of the government. 

MTI, in its statement, stopped short of blaming the maple industry for the lack of consultation. 

“We can appreciate the industry wants an opportunity to develop but we have to make sure this is not at the expense of our rights,” MTI stated. 

Richardson said developers should work directly with First Nations if they are interested in speedy development, instead of waiting for the government to act.

“If industry wants to grow, you have to have that relationship with First Nations.”

David Gordon Koch is a journalist with the NB Media Co-op. This reporting has been made possible in part by the Government of Canada, administered by the Canadian Association of Community Television Stations and Users (CACTUS).