Forestry companies, Wolastoqey Nation fight over court fees in historic land title case

The judges at New Brunswick’s highest court are wrestling with how to award costs in the first part of a massive and complex litigation that has entangled the province’s biggest landowners.

The New Brunswick Court of Appeal heard arguments Tuesday from three timber firms that successfully argued their case in preliminary motions in a lower court in the Wolastoqey Nation’s big title claim for about 60 per cent of the province’s territory.

In an unusual twist, the judges heard from the parties before issuing a ruling on their appeal, expected sometime before the end of the year.

In most appeal court cases, the judges simply award basic legal costs of a few thousand dollars, along with their judgment.

But this lawsuit, expected to take years if not decades to resolve, is different.

Lawyers for J.D. Irving, Limited (JDI), Acadian Timber, and H.J. Crabbe and Sons argued that because the case is so complex and important for the rights of all private properties in the disputed territory, they deserve a bigger payout. All told, it’s an area that’s about 44,000 square kilometres, slightly larger than the entire country of the Netherlands.

Paul Steep, a lawyer from Toronto representing JDI, told the three black-robed justices on the panel in Fredericton that the case had posed an “existential threat” to the company, which employs more than 20,000 people.

At stake are 650,000 hectares of JDI land, both owned and leased, “supporting virtually all of its businesses,” he said. The land the firm controls is unparalleled in the province, accounting for nine per cent of New Brunswick’s total geography.

In a lower court ruling, Justice Kathryn Gregory of the Court of Kings Bench in February of last year upheld a motion filed by the three so-called industrial defendants. They had asked that she strike the request of the six Wolastoqey Nations in New Brunswick to issue certificates of pending litigation against the thousands of acres of land they use for commercial timber operations.

Those certificates, if issued, would have been a warning to potential buyers or investors that their land was subject to a lawsuit. The firms said it would make it very difficult for the defendants to keep running timber operations, particularly if they were seeking business loans, which require putting up property for collateral. Her decision was considered a win for the timber firms.

In a later ruling, she removed the defendants from the lawsuit but also said their land was still at stake, as there remained a question as to whether the British Crown – in this case, its successor, the provincial government – had given away Wolastoqey land inappropriately to private interests over the last 400 years.

The Indigenous chiefs who represent about 18,000 Indigenous people in New Brunswick praised her decision, but the firms quickly appealed it.

Steep said that given the lower court had ruled mostly in their favour, they were entitled to court costs of a higher than normal amount, given “the high stakes.”

The lawyer described the Wolastoqey side as “sophisticated litigants who know the rules of the game.”

Steep demanded the Wolastoqey Nation pay each firm $50,000 in legal costs, for a total of $150,000.

In most of the hearings, more than a dozen lawyers have made appearances from different private firms, the federal and provincial governments, the Wolastoqey Nation and interveners.

Monday was no different, with 18 lawyers, five officials and two reporters crammed into the small courtroom or attending virtually by remote feed.

Ernest Drapeau, the former chief justice who is now a supernumerary judge, told the lawyers that although he and the other two justices, Kathleen Quigg and Brad Green, were veteran jurists and very familiar with the law of legal costs, this was new territory for them.

“In a case like this, none of us have litigation, or trial experience, of a case involving Aboriginal title,” Drapeau said. “So, we can’t apply our tested experience as former litigators … to this.”

The unprecedented case is expected to cost millions over the years. This is one of the reasons the Liberals under Susan Holt say they decided the provincial government should stop contesting the lawsuit, given the amount it was paying an outside firm, rather than just settling the dispute.

The judge described the amount sought as symbolic.

“Mind you, I’d really like to see the invoices of the lawyers, but I don’t think that’s the way to go,” Drapeau said, adding that when it comes to $50,000, “I know it doesn’t come close.”

Lawyer Alex Cameron of Nova Scotia, representing H.J. Crabbe and Sons, characterized the case as unfair and damaging to an innocent party who did nothing wrong.

He argued that the sawmill and pellet industry is ruthlessly competitive and is threatened by international trade uncertainty and tariffs. The last thing its owner, Donald Crabbe, wanted was a lawsuit, Cameron said.

The lawyer said Crabbe has created over the decades a solid, viable business that employs 55 people in the sawmill in Florenceville-Bristol, plus truckers and other workers in a rural area that desperately needs jobs.

“Everything Don Crabbe did was by the book,” Cameron said. “This business ought to be acknowledged as a model of economic development in rural New Brunswick, but instead he’s being sued.”

The lawyer added that Crabbe felt like he had to pick up the slack left behind by the province, which, under the former government of Progressive Conservative Premier Blaine Higgs, wanted to fight it on behalf of all property owners in the disputed territory, where more than 400,000 people live.

“Donald Crabbe is in the position of the attorney general when the attorney general doesn’t appear,” Cameron said.

Drapeau acknowledged that the case would likely follow a long and winding road, and expressed surprise that a jurist writing for a local newspaper already predicted the case would land at the Supreme Court of Canada. (This was likely a reference to retired justice Joseph Robertson, who has written several commentaries on the case for the Telegraph-Journal).

“Are we just the steppingstone to the big house?” Drapeau said, prompting titters in the courtroom.

Hugh Cameron, Acadian Timber’s lawyer, said his company was forced to defend itself, unfairly, but risked suffering catastrophic consequences if it did not do so.

His legal brief described the Wolastoqey Nation’s inclusion of Acadian Timber as a legal tactic.

No miners, millers, farms or fisheries were named in the lawsuit, the lawyer noted.

He said the Wolastoqey Nation named Acadian as a defendant simply to apply pressure on the provincial and federal governments.

In his appearance before the judges, the Fredericton lawyer said the Indigenous chiefs had only chosen “the six largest landowners, not seven, eight or beyond. They get a pass, and that seems unfair. Please consider the arbitrariness of it.”

He repeated Steep’s request for $50,000 each, but also said that if the Wolastoqey Nation won their appeal, their side wasn’t entitled to any legal costs.

Drapeau frowned. “As far as I’m concerned, the Wolastoqey Nation would be entitled to cost. But that’s just me. There are two other judges here.”

Speaking to the judges with an eagle feather beside her on the lectern, the Wolastoqey Nation’s lawyer, Renée Pelletier, criticized the firms for providing much of the same legal arguments over 15 days, accusing them of overlap and duplication.

She reminded the parties that the Wolastoqey Nation felt deep unfairness about being dispossessed of their lands.

In bringing this claim, her brief noted, “the Wolastoqey Nation is seeking the recognition of its unceded, unextinguished, and constitutionally protected Aboriginal title to its traditional territory in what is now New Brunswick.”

The lawyer said the Indigenous people could not exercise their right to the land because of historic breaches of the Crown in granting away their land and the timber firms occupying it.

“The Wolastoqey Nation is trying to correct an injustice that has been centuries in the making,” her legal brief stated. “By its very nature, litigation of this type over who, as between two innocent parties, should exclusively possess land has an unavoidable unfairness to it.”

She also said that by advancing “unmeritorious, novel, untested, and at times contradictory arguments,” the firms had unnecessarily increased the case’s complexity.

Pelletier reminded the justices that when it comes to legal cases involving the part of the Canadian constitution that recognizes and affirms the existing Aboriginal and treaty rights of Indigenous peoples, most judges do not award legal costs, even if the Indigenous party loses.

She said if her side did indeed win on appeal, it should be entitled to $6,000 from JDI, $6,000 from Acadian Timber, and $12,000 from H.J. Crabbe and Sons. The higher amount demanded of Crabbe was for what she considered its frivolous and complex arguments that strayed from the lawsuit’s central tenets.

“Why single out H.J. Crabbe and Sons?” Drapeau asked her. “It’s not a giant like the others.”

Pelletier reminded the panel that the firm was one of the six biggest landowners in the contested area and that even though it had framed itself “as a mom-and-pop shop,” it was still a huge property owner.

When the judge pointed out that $150,000 was only a small amount of what the firms had likely spent, and it was a symbolic gesture they were asking for, Pelletier begged to differ.

“It might be symbolic for JDI, but it would be significant for the Wolastoqey Nation.”

The judge said the court would make its decision known at a later date.

John Chilibeck is a Local Journalism Initiative Reporter for the Daily Gleaner. This article originally appeared in the Telegraph-Journal on October 22, 2025.