First Nations title acknowledgements could be used as evidence in N.B. land claim case, say experts

First Nations land acknowledgements by New Brunswick public servants could potentially be submitted as evidence in an upcoming legal battle in a title claim covering about half of the province, say experts.

But whether they'd ultimately sway the decision of a judge is difficult to determine, said Fredericton lawyer and former New Brunswick attorney general T.J. Burke.

"It would have to be tied into the context of some form of evidence that was presented at the hearings," Burke said.

Last Thursday, New Brunswick Attorney General Ted Flemming issued a memo ordering all provincial employees to refrain from making First Nations land title acknowledgements.

Flemming said the move was provoked by legal actions against the government involving Indigenous rights and land titles. The memo said employees must instead only use an "ancestral acknowledgement" approved by the provincial government's protocol office.

In recent years, land acknowledgements have become a regular practice across Canada to open public events and ceremonies and in email signatures. 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 on the use of land acknowledgements 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.

Burke said he thinks it's possible that the plaintiffs in the case could submit any land title acknowledgements made by provincial employees as evidence when the case goes to court, especially if they're made by high-ranking officials.

"So I don't think a payroll clerk at the Government of New Brunswick acknowledging that we're on the unceded territory of Mi'kmaq and Maliseet people is going to have any bearing on the evidentiary record before a judge," he said.

"However, what may have an evidentiary bearing is if high-ranking civil servants, such as a deputy minister or maybe a minister ... are publicly conceding that the territory which we call New Brunswick was never lawfully given by the Mi'kmaq and Maliseet people to the British Crown.

"That may give some weight to the court's decision, but it would be highly unusual."

Alan Hanna, an assistant professor of law at the University of Victoria in British Columbia, also thinks such acknowledgements by provincial staff could be used as evidence in the case.

"How influential it would be in court? It depends on the judge. It depends on the rest of the evidence," Hanna said.