Earlier this year, Higgs expressed frustration over the legal requirement for consultations, calling it vague.

But John Logan, the deputy attorney-general, told the legislature's Public Accounts committee on Thursday that "the duty to consult is quite clear."

He was responding to a question from Progressive Conservative MLA Stewart Fairgrieve, who said he attended a parliamentary conference in western Canada that featured discussions about how the requirement is "ambiguous" and "confusing." 

"With respect, I would disagree with you," said Logan, an experienced lawyer whose non-partisan role is to oversee the Office of the Attorney General. Its lawyers represent the government in most court cases.

John Logan, the deputy attorney-general, told the legislature’s Public Accounts committee on Thursday that 'the duty to consult is quite clear.' The statement contradicts that of Blaine Higgs, who said the issue is vague. (Jacques Poitras/CBC)

"The duty to consult is established over the course of decades of case law, but it's quite clearly articulated."

Logan said the duty to consult can be applied differently in different parts of the country, depending on whether there are treaties with Indigenous nations. 

And he said there is also a "sliding scale" to the obligation, depending on an assessment of how much a government action would infringe on treaty or title rights.

In June, Higgs revealed that his cabinet had approved a regulation to exempt the Sussex area from a province-wide moratorium on shale gas development.

Several Indigenous leaders condemned that decision, which they said happened without any consultations. 

In the legislature, Aboriginal Affairs Minister Jake Stewart said consultations weren't needed until after the cabinet decision. "We didn't even have a regulation until now so there was nothing to talk about," he said.

    In his speech at annual national meeting of the Assembly of First Nations, Premier Blaine Higgs repeated his view that the duty to consult Indigenous people on resource projects, a legal obligation upheld by several Supreme Court of Canada decisions, remains vague and undefined. (CBC)

But Higgs said in a speech at the national conference of the Assembly of First Nations in Fredericton in July that the government didn't have "a clear understanding of just what consultation means." 

He told reporters at the conference, "It's not well-defined so you don't know when you're done, and the timelines to achieve it.  No one is arguing the point of going through the process. It's just, let's understand what the process is." 

Fracking expansion plan halted

In August, Corridor Resources said it was putting on hold its search for investors for an expansion of its operations in Sussex. It said the province wasn't able to consider its application to lift the moratorium pending Indigenous consultations.

Corridor had extracted natural gas in the area since 1999 but suspended fracking after the previous Liberal government imposed the moratorium in 2016. 

Logan told the committee that there's been a lot of public discussion "as to what we have to do as a minimum, what we should be doing as a norm, what we should be doing if we really want to build a relationship that we need to build with the Indigenous communities." 

Corridor Resources, which had plans for hydraulic fracturing near Sussex, said in August it will spend its money outside New Brunswick. (Pierre Fournier/CBC)

The province's policy on the duty to consult, available online, says the obligation exists "when the Crown is considering an action or decision that may adversely affect Aboriginal and treaty rights" under Section 35 of the Constitution. 

That includes the creation or implementation of regulations and policies that could "negatively impact the traditional use of Crown land and resources or the way a right is exercised."

The five-page document says First Nations are also expected to participate in consultations in good faith.

Higgs complained in July that Wolastoqi chiefs that had signed an accommodation agreement with the province in 2017 about the Sisson mine were still saying they were against the project. He suggested they should return the $3 million they received from the province. 

Chief Patricia Bernard of Madawaska Maliseet First Nation said in July that agreeing to not challenge the mine in court was not the same thing as consenting to it, and did not limit her ability to say she didn't like the project.

Premier Blaine Higgs and his government are doubling down on their stance that an Aboriginal title claim for roughly half of New Brunswick could impact properties owned by smaller landowners, despite insistence by the claim's proponents that that's not what they're after.

The province filed a motion in New Brunswick Court of King's Bench this week, asking the court to strike out several sections of the claim by six Wolastoqey First Nations and to "remove all claims against and/or in relation to fee simple lands and the interests of the unnamed parties therein."

The province, in a news release the same day, said the motion was filed to protect "families, homeowners, businesses and others who own property" within the title claim area covering more than 60 per cent of the province.

"Today, across more than half of our province, hundreds of thousands of New Brunswickers are at risk of having their property impacted by this unprecedented claim in which they have been denied any standing or representation," said Higgs, in the news release.

Higgs said the motion applies to 250,000 properties, which are owned by people who are not named in the title claim, and as such, should be removed from it.

"The plaintiffs have dismissed the fears of these New Brunswickers, which is why our government is taking this action to ensure the plaintiff's legal claim reflects their statements."

The plaintiffs in the claim are the Wolastoqey nations of Matawaskiye (Madawaska), Neqotkuk (Tobique), Bilijk (Kingsclear), Sitansisk (St. Mary's), Welamuktok (Oromocto) and Wotstak (Woodstock).

Launched in 2020, the claim specifically names the federal government, N.B. Power, and six predominantly forestry companies and 19 of their subsidiaries.

The six Wolastoqey First Nations in New Brunswick say their title claim is not about displacing people currently living on any land in the claim area. (Logan Perley/CBC)

Leaders for the communities have previously said the title claim is not about displacing people currently living on any lands subject to it, but rather about negotiating new deals with major industrial companies operating in the province.

Leaders have also denounced what they've described as fear-mongering in claims by Higgs that the title claim could jeopardize smaller private landowners.

Renée Pelletier, a lawyer representing the Wolastoqey nations in the title claim, shot back at the comments Higgs made in the news release Thursday.

"The Wolastoqey Chiefs have consistently said that they are not seeking to displace New Brunswickers or otherwise impact their property rights," Pelletier said in an email.

"That is consistent with what is actually written in our Statement of Claim."

  The title claim covers roughly 60 per cent of New Brunswick. (Wolastoqey Nation in New Brunswick)

Pelletier also shared paragraphs from the claim that exemplify the Wolastoqey chiefs' position that property owned by no one other than the defendants listed would be affected.

"The Plaintiffs seek no relief as against fee simple holders not named as Defendants who hold fee simple in the Traditional Lands ("Strangers to the Claim"),"the Wolastoqey nations write in the second paragraph of their claim.

Bilijk Chief Gabriel Atwin also accused the Progressive Conservative premier of mischaracterizing the title claim.

"His statements can only serve to put fear in the general public and to create tensions between the Indigenous and non-Indigenous populations in New Brunswick," Atwin said in an email.

"Frankly, that is irresponsible, and we hope the PC Party is taking notice."

The Higgs government has doubled its spending and staffing on Indigenous issues since it took power, with little visible progress to show for it.

The province has also spent millions of dollars paying lawyers from two major law firms to sit on a steering committee overseeing the government's legal negotiations and court battles with First Nations.

It has led to a more centralized, legalistic approach that is stalling progress on a range of issues, Indigenous leaders say, while producing no breakthroughs in such major areas as land claims and resource royalties.

Nor has it yielded any signed development agreements that Premier Blaine Higgs pitched to chiefs last year to replace the agreements he cancelled on gas-tax sharing.

Darrah Beaver, executive director of the Wolastoqey Nation of New Brunswick, which represents chiefs and councils, said discussions about the Mactaquac dam refurbishment and implementation of an accommodation agreement on the proposed Sisson Brook mine have stalled. (Submitted by Darrah Beaver)

"New Brunswick taxpayers should be very frustrated with this new approach," said Darrah Beaver, executive director of the Wolastoqey Nation of New Brunswick, which represents chiefs and councils.

"It's costing them more money and creating and fuelling a lot more conflict with the First Nations, and in the end, where does it get us? No further ahead." 

CBC News has confirmed that:

• The Department of Aboriginal Affairs now has 43 employees, more than double the 18 it had when the Progressive Conservatives took office in 2018.

• The department's budget has soared from $3.8 million in 2019-20 to $7.4 million this year. 

• It spent $2.6 million in 2021-22 on lawyers from Cox & Palmer and Stewart McKelvey, who advise the government and sit with Higgs and key ministers on a steering committee guiding the province's legal position.

• The department created an "initiative management branch" in 2021 to serve as "the hub for all initiatives across government" related to Indigenous people.

• It also created an "information governance" branch last year that collects and manages "all information assets" related to the department's work. 

Aboriginal Affairs Minister Arlene Dunn did not agree to an interview but provided CBC News with a lengthy written statement that called the changes "a significant reorganization" meant to give the government a more consistent approach. 

Process 'respects First Nations rights,' minister says

Before the overhaul, "the Province did not have one approach to consultation across all departments and did not ensure that each consultation met the standard that First Nations were requesting," Dunn said.

Some departments wrongly assumed informal discussion amounted to proper consultation, which "resulted in frustration, delays and wasted efforts," she said.

Dean Vicaire, the executive director of Mi'gmawe'l Tplu'taqnn Inc., which represents Mi'kmaq First Nations, said if the department is going to double the budget and double the staff, 'then where are the results?' (Contributed/Charlene LaBillois)

The initiative management branch now reviews anything that any department is working on with First Nations and brings in the consultation branch.

Dunn said that ensures the process "respects First Nations rights, is properly documented and achieves the intended result."

And the use of outside lawyers has led to "positive progress" such as an agreement to avoid a court battle and instead negotiate following the cancellation of gas tax revenue sharing agreements, Dunn added.

'Where are the results?'

But Indigenous organizations say the new layers of bureaucracy and process, along with the inserting of the department into their dealings with other provincial departments, has stalled progress on a range of issues. 

"If they're going to double the budget, double the staff, then where are the results?" said Dean Vicaire, the executive director of Mi'gmawe'l Tplu'taqnn Inc., which represents Mi'kmaq First Nations. 

MTI first flagged the problem in 2021, writing that the elaborate new structure "rarely contributes towards positive outcomes, and often results in frustration, delay, and wasted effort, which only serves to undermine the relationship."

Co-chairs George Ginnish and Rebecca Knockwood said in a letter that they had been able to "advance discussions with departments on smaller initiatives [but] these discussions typically grind to a halt once DAA becomes involved."

Vicaire said almost two years later, nothing has changed.  And Beaver said many bilateral negotiating tables "just stopped."

Mi'gmawe'l Tplu'taqnn Inc. co-chairs Rebecca Knockwood, left, and George Ginnish had said in a letter that they had been able to 'advance discussions with departments on smaller initiatives [but] these discussions typically grind to a halt once DAA becomes involved.' (Alexandre Silberman/CBC (left) and Vanessa Blanch/CBC (right))

Discussions about the Mactaquac dam refurbishment and implementation of an accommodation agreement on the proposed Sisson Brook mine also stalled, she said.

"You would think that investments such as that going into this department that this relationship would be better and the situation would be better with First Nations," she said.

Beaver said longtime staff at Aboriginal Affairs have left and the department now appears to be run by lawyers with little understanding of Indigenous law.

The relationship "was never perfect but it has deteriorated significantly over the years," she said, with the department using potential progress in some initiatives as "a bargaining chip" to pressure chiefs to give ground on issues like shale gas development.

Several initiatives remain works-in-progress

The department provided a 17-page document that lists hundreds of initiatives undertaken by the province, many of them small-scale funding projects. 

But several remain works-in-progress. 

Then-Aboriginal Affairs Minister Jake Stewart announced in November 2018 that Indigenous people would be allowed to use eagle feathers when taking an oath to testify in court.

The document says the province is still talking about how to do it.

One of the few major breakthroughs was a recent five-year agreement between the province and Neqotkuk First Nation, also called Tobique, that will see the Regional Development Corporation provide more than $22 million for housing and road improvements. (Submitted by Darrah Beaver)

"Work on protocols is moving forward for the appropriate use of Eagle Feathers in oath taking processes in courts," the document says. 

A proposal to change seven place names in the province that are racist toward Indigenous people — listed on the document as "toponymy process review"— remains unfulfilled, CBC News reported earlier this month.

The province has budgeted only $7,800 for the initiative this year. 

There's also no discernible progress on bigger ideas like resource revenue sharing in the forestry and mining sectors.

Dunn floated that idea as an alternative to lucrative gas tax sharing agreements that Higgs cancelled in 2021.

The premier said later that year that a major land claim filed by Wolastoqey chiefs was an obstacle to progress on other files.

"It's pretty hard to have a meaningful discussion on forestry revenues and royalties, while at the same time you're being sued for the very land you walk on," he said.

One of the few major breakthroughs was a recent five-year agreement between the province and Neqotkuk First Nation, also called Tobique, that will see the Regional Development Corporation provide more than $22 million for housing and road improvements.

Dunn's statement called it "a significant example" of how the revamped department is achieving success and said other consultations and negotiations are happening now that should lead to more positive announcements in the coming weeks and months.

As several Indigenous nations in eastern Canada make overlapping claims to their traditional lands, they say the biggest obstacle won't be dealing with each other, but with the government of New Brunswick.

Last week, Mi'gmawe'l Tplu'taqnn Inc. (MTI), a Mi'kmaw rights collective in New Brunswick, released a map of its territory that included most of the province, and overlapped with territory claimed by the Wolastoqey Nation.

Chief Patricia Bernard of Madawaska Maliseet First Nation, part of the Wolastoqey Nation, said the maps show the two groups commonly shared some lands and that hard borders are a colonial concept.

"We are partners. We are allies in this. Our biggest challenge is going to have the province recognize it," she said.

She said the groups had two meetings already and the discussions will lead to a wampum agreement.

"Those are things that we're going to be working out. It will all be done in a friendly manner and it's a process to do this," said Bernard.

Hugh Akagi, chief of the Peskotomukati Nation at Skutik, near St. Andrews, N.B., said he has to take time to review the title claims of the Mi'kmaq and Wolastoqiyik. He added that pursuing title claims in the Canadian court system was like asking for sovereignty from one's oppressor.

"I think the first thing we have to do is remove the oppressor from the conversation and that means his law and his rules," said Akagi.

Chief Hugh Akagi, who represents the Peskotomuhkati Nation at Skutik, says he'd prefer if governments were left out of discussions about shared lands. (Submitted by Cynthia Howland)

He said he is committed to maintaining good relations with the other Indigenous groups but would rather not have the governments in those discussions.

Aboriginal title is the legal right of Indigenous peoples to their traditional territories. Both the Wolastoqiyik and Mi'kmaq say those rights were not extinguished when they signed the Peace and Friendship treaties in the 1700s.

The province of New Brunswick said by email that the entire province was under claim by different Indigenous groups and it had received notice of MTI's claim.

"The province will address the Mi'gmaq's position in due course and as part of that process must consider how it implicates the current claim by the Wolastoqey to land that is in the Mi'gmaq map area," said provincial spokesperson David Kelly.

  The Wolastoqey Nation in New Brunswick has laid claim to Aboriginal title for a large portion of New Brunswick. (Wolastoqey Nation in New Brunswick)

Crown-Indigenous Relations and Northern Affairs Canada said a tripartite framework was signed in 2017 with MTI, the government of Canada and the province of New Brunswick, which set out priority discussions including on Aboriginal title.

It said discussions of title were ongoing with Elsipogtog First Nation and the Peskotomuhkati Nation at Skutik, while the Wolastoqey Nation is pursuing title through the courts.

"Consistent with the principle of self-determination, matters concerning overlapping claims or assertions of Aboriginal rights and title by neighbouring nations are best addressed through discussions between the nations," said Randy Legault-Rankin, a spokesperson for CIRNAC, by email.

Building on Elsipogtog claim

Elsipogtog First Nation filed for Aboriginal title in 2016, laying claim to the Mi'kmaw traditional territory of Siknikt, on behalf of the Mi'kmaw Nation.

The map on the left shows the Aboriginal title claim made by Elsipogtog in 2016, while the one on the right shows the claim made by the other eight Mi'kmaq communities represented by MTI. (CBC)

In 2019, the community signed a memorandum of understanding with the Government of Canada. Elsipogtog's lawyer Bruce McIvor said discussions are going well between all parties except for the provincial government.

"The province has declined to come to the table so far and participate in meaningful discussion," said McIvor, a partner at First Peoples Law.

McIvor said his clients and MTI have a shared goal of securing title for the entire Mi'kmaw Nation and that the map "builds on the good work that Elsipogtog has done on this."

"It doesn't go as far as Elsipogtog did in filing a title claim in 2016 but it's consistent with the title claim that was filed and it's good to see MTI taking a more assertive position on these important issues," said McIvor. 

Natoaganeg Chief George Ginnish says securing title for the Mi'kmaq means securing economic means for the nation. (Vanessa Blanch/CBC)

Eel Ground First Nation Chief George Ginnish said the map was released to push the province to the table. MTI represents his community and seven others in the title discussions. 

Ginnish said he hopes the title claims can bring economic stability to the nine Mi'kmaw communities.

"How do we make life good, especially for our children, so that they feel that the world is a good place, that there's opportunity for them? You know, that's what we want to do," said Ginnish.

He said all the Indigenous groups will work together on the file but it may take some time to determine land boundaries.

Mi'kmaw communities in New Brunswick are once again asserting Aboriginal title to land in the province — and it's a lot more land than in the previous claim. 

In fact, according to a map released on Wednesday, the most recent claim covers nearly all of the province and even extends into offshore water.

Together with a previously made Wolastoqey claim, the entire province now falls under title claim, according to a government spokesperson.

Eight Mi'kmaw communities in New Brunswick represented by Mi'gmawe'l Tplu'taqnn Inc. "are formally asserting title to lands and waters in New Brunswick," according to a news release from MTI on Wednesday.

The group said the move is "another step in the process to reasserting jurisdiction over lands and waters within our territory. This is a step towards self-determination and full recognition of our rights."

The claim builds on a 2016 action by Elsipogtog First Nation, a Mi'kmaw community formerly called Big Cove. 

The new claim represents the other eight Mi'kmaw communities in the province, explained Dean Vicaire, executive director for MTI. 

Eight Mi'kmaw communities in New Brunswick represented by Mi'gmawe'l Tplu'taqnn Inc. are asserting title to lands and waters in New Brunswick, indicated by the horizontal lines. (Submitted by Mi'gmawe'l Tplu'taqnn Inc.)

According to the news release, MTI says the Mi'kmaw never ceded the lands and waters under treaties signed by their ancestors. 

"The Peace and Friendship Treaties were signed by our ancestors with the intention that we would have a say and role in how our lands and waters are managed. We can no longer sit back and be spectators in our homeland. It's now the time to govern lands for the protection and benefit of future generations," said Chief Rebecca Knockwood of Amlamgog First Nation.

Although the Mi'kmaw are claiming title over the whole province, MTI said "we are not seeking the return of private lands to Mi'gmaq ownership, only Crown lands and industrial freehold lands."

Chief George Ginnish of Natoaganeg said private landowners in New Brunswick need not worry. 

"We are not looking at taking your homes, cottages, or properties. Our assertion of title is against the Crown and a small number of companies using industrial freehold lands in which the Crown still asserts an interest. We will be seeking compensation from the Crown for the loss of use of private lands," said Ginnish, according to the news release.

The release also acknowledges an "overlap" in the territory claimed by the Mi'kmaw with that claimed by the Wolastoqiyik.

"Overlap discussions with the Wolastoqiyik have already commenced," stated the release. 

"We have also shared this map with Elsipogtog and the Migmawei Mawiomi Secretariat. Title belongs to the Mi'gmaq Nation and will work with other Mi'gmaq organizations to coordinate our efforts at recognition of Mi'gmaq title."

"For thousands of years our nations and communities have worked together to identify lands that would be used and shared for hunting, fishing, and development. Any overlaps between the assertion of titles will be resolved among the Nations," said Chief Sacha Labillois of Ugpi'ganjig, according to the news release.

Chief Bill Ward of Metepenagiag said if the government of New Brunswick isn't willing to have 'meaningful discussions around our Mi’gmaw title, MTI will explore other options for recognition, which could include going to court.' (Logan Perley/CBC)

Chief Bill Ward of Metepenagiag said if the government of New Brunswick is "unwilling to have meaningful discussions around our Mi'gmaq title, MTI will explore other options for recognition, which could include going to court." 

Vicaire said MTI will only go to court if the province is "unwilling to sit down and engage in meaningful, good faith negotiations around the recognition and implementation of Mi'gmaq title. Canada has already indicated their willingness to negotiate recognition of our title."

He said MTI has already asked the province to negotiate. 

"The Government of Canada has indicated they are willing to discuss title," said Vicaire. "Going to court is always an option but we hope the Government of New Brunswick will be willing to negotiate in good faith and those negotiations can start soon. We'll see how the process unfolds."

Claims now encompass entire province

The New Brunswick Department of Aboriginal Affairs said it was just notified about the claim.

"The Province will review this development in the coming days and weeks," said department spokesperson David Kelly.

"The Province will address the Mi'gmaq's position in due course and as part of that process must consider how it implicates the current claim by the Wolastoqey to land that is in the Mi'gmaq map area.

"As a result of the Mi'gmaq's position, there are First Nation claims against all land in New Brunswick. First Nations are claiming the entire Province of New Brunswick, including the majority of the Bay of Fundy and the Northumberland Strait."

Previous claims in N.B.

In 2016, Elsipogtog First Nation filed for Aboriginal title over nearly one-third of New Brunswick on behalf of all Mi'kmaq in the province.

With the claim expanded to nearly all of the province, if granted, it would give the Mi'kmaq more say in nearly all of the province's natural resources.

At the time, Elsipogtog members said the action was motivated by fears of shale gas exploration clashes like the one that ensued between protesters and police in Rexton, near Elsipogtog, in October 2013. More than 40 people were arrested during the protests. 

In 2019, the federal government and Elsipogtog First Nation signed a memorandum of understanding that was supposed to launch discussions about the Mi'kmaw claim of Aboriginal title to a third of New Brunswick.

The Wolastoqey nations filed a similar title claim in 2020.

That 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.

The Six Chiefs of the Wolastoqey Nation in New Brunswick issued a statement in response to the newly released map. 

It says, "the overlap between the title asserted by MTI and the title claimed by the Wolastoqey Nation has been the topic of discussions between the respective leadership groups and we are working towards a Wampum Agreement regarding the overlap area with our neighbours."

The statement said the discussions, "like our collaboration on many matters, have been open, friendly and productive."

It also states, "We wish to amplify today's call from the Mi'gmaw chiefs: It's time for the Government of New Brunswick to see the importance of negotiating recognition and implementation of Indigenous title."