In April 2021, the Madawaska Maliseet First Nation in northwestern New Brunswick was awarded the largest federal land claim settlement in Maritime history — $145 million. At the heart of this historic settlement is Chief Patricia Bernard (BEd'96, LLB'99), who submitted the original claim while in her second year at UNB Law, and spent the next 23 years fighting for justice for her community. 

Chief Bernard's work on the land claim started with an undergraduate independent study examining the history of her community at Madawaska. Her paper focused on the provincial government’s favouring of Aboriginal people who relinquished their traditional way of life and conformed to the stationary farmer lifestyle.

"Traditionally, our people were very migratory," says Bernard. "We travelled up and down the river system hunting, fishing and not really having any major permanent settlements. The government encouraged our people to abandon this way of life." Chief Bernard spent countless hours researching at the provincial archives, where she came across documents particular to her community that contained some inconsistencies and errors.

Chief Bernard had uncovered several maps depicting the size of the reserve and its boundaries. A 1787 map showing the boundaries at approximately 4,000 acres, an 1845 map at approximately 1,600 acres, and an 1860 map at approximately 700 to 800 acres. Bernard found no documentation demonstrating that the reserve was legally reduced in size from 1787, nor was any compensation paid to the reserve inhabitants.

"I realized that some of the maps were way off in size. I dug a bit deeper and realized that these lands, that were reserved lands, were alienated without lawful authority, without using the right legal process that was in place which would have been the royal proclamation at the time."

This discovery would be the basis of the claim. While researching the project, she came across the story of her great-great-great-grandfather, Louis Bernard, a farmer favoured by the government because of his assimilation — though he did continue to practise his traditional lifestyle.

According to Chief Bernard, in 1844, New Brunswick passed an act to remove the status of all the reserve land in the province for the better settlement of the colony, an act to regulate the management and disposal of the Indian Reserves in this province. By 1861, the reserve had already been diminished by over three thousand acres. An Indian agent met with Louis Bernard, informing him that he would need to start planning to move his family and community because the government would be selling the rest of the reserve land. "He was devastated," recounts Bernard.

"He travelled, at 90 years old, from Madawaska to Fredericton by canoe, hired a magistrate, and made a gut-wrenching petition to the government. Within the petition, he said, 'I can't believe that the government would treat me so poorly when I have been a good citizen. I've lived here all my life. I've buried my parents, my grandparents, my wives, my brothers and sisters, my children, and even some of my grandchildren along the banks of the river and you want me to move my family.' Clearly, it struck a chord because the reserve was never further diminished after that point. If it wasn't for his petition, there would be no reserve here today."

"Not only is this money going to improve the lives of our community members, but it will help the local economy as well."

Shortly after beginning her studies at UNB Law, Chief Bernard, along with classmate, Mary Caldbick (BA'94, MA'97, LLB'99), submitted the land claim to the Government of Canada. The pair drafted the document with the relevant facts and law to claim an alienation or illegal dispossession of reserve land. This was submitted to the Specific Claims Branch at the Department of Indian and Northern Affairs Canada in April 1998. The claim relied heavily on the 1787 survey by New Brunswick surveyor-general George Sproule, which established that the reserve was nearly 4,000 acres in size.

"The survey was completed under the authority of Lieutenant Governor Thomas Carleton," says Chief Bernard. "He instructed Sproule to survey the area and had the proper authority to set aside the land. The Canadian government would later argue that the survey was never meant to recognize the reserve and that we are a de facto reserve, being that no real instrument created it. This was our main argument, that this particular survey created our reserve and detailed its boundaries."

THE RESPONSE TO OVER A DECADE OF SILENCE

The Government of Canada sat on the claim for the next 11 years, formally rejecting the claim in 2009 on the grounds that the land was not alienated because it was not officially a reserve. "At that time, I was a councillor in the community, and I said to myself, 'no, this is not right, I know it's not right,' so we immediately sent it off to the Indian Specific Claims Commission (ISCC), which was the predecessor to the Specific Claims Tribunal (SCT)."

The documents were quickly returned as the ISCC was being dismantled.

"Unfortunately, but possibly, fortunately, we ended up going to the SCT. I say fortunately because the ISCC had no real teeth, they could only recommend that Canada reconsider their position, but the tribunal was able to make a binding decision."

While the Specific Claims Tribunal Act was passed in 2008, judges were not appointed until 2011. Bernard, as the lead counsel, submitted the claim to the tribunal in 2012. The next five years consisted of drafting pleadings, applications, responses to expert reports, completing additional research, and uncovering new supporting documentation.

Chief Bernard and her team faced several legal hurdles during this time. First, a motion to remove Bernard as lead counsel citing her previous employment for the Specific Claims Branch as a conflict of interest.

"Right off the bat, they tried to remove me by saying I was in a conflict because I had worked for specific claims and I would have had access to their DOJ legal opinions. We went before the judge and I said, 'look, Canada wants to remove me because I might know what legal arguments they're going to use against me in this file, but aren't they going to express those legal opinions at a hearing and I'll know anyway?'" The application was withdrawn. Next came an attempt to deny up-to-date legal arguments of the now 16-year-old claim. This application was also withdrawn. Finally came an attempt to deny the First Nation the opportunity to expand the scope of the claim."

"They didn't want me to expand the scope or research of the claim. We had done additional research, and a deeper verification. We got better copies of the documents and I had significantly more experience than I did as a student. They were claiming that the minister didn't have the advantage of seeing new research to make a decision. This was also withdrawn."

The legal team relied on a series of 10 expert reports outlining the history of the reserve land and the events surrounding the creation of the reserve. From May through July of 2017, three hearings were conducted in front of the judge.

From May 15 to May 18 in Edmundston, N.B., experts were called upon to deliver their testimony. They included Maliseet expert Andrea Bear Nicholas, who discussed the history of Maliseet Treaties and the relationship with the Crown; Dr. Elizabeth Mancke, who provided an analysis of 18th-century land grants and Crown-Indigenous relations in British North America during the 18th and 19th centuries; and Dr. Brian Cuthbertson, who focused on the 1844 Act and the government's administration of Indian Reserves in New Brunswick during the early19th century. From June 19 to 22 in Halifax, Canada's experts testified as to its version of events surrounding the same period.

THE DECISION AND NEGOTIATION OF THE CLAIM

In November of 2017, the judge came to the decision that Canada had breached its lawful obligation, alienating large portions of reserve land without lawful authority. Over 3,000 acres had been lost, 1,000 of which are on the U.S. side in Madawaska, Maine. It was determined that 1787 was the date the reserve was created. Chief Bernard and her team agreed that the U.S. portion of the land loss was not going to form part of this claim.

"We negotiated very aggressively over the first year. Within a year and a half, we had an agreement in principle. In order for the agreement in principle to reach the level where they could send us a letter of offer, they needed treasury board approval."

The Department of Indian Affairs, as it was then called, has the authority to settle a claim for up to $50 million. Claims of $50 -150 million must be approved by the treasury board. Anything over $150 million would have had to go to cabinet.

"An important aspect of the negotiation was the addition of reserve land. Canada agreed to add 1,935 acres to expand our reserve boundaries. There's no time limit for that; the land just has to meet the requirements under the additions to reserve policy. It doesn't have to be connected to our existing reserve; it could be anywhere in the province."

A VICTORY FOR THE MADAWASKA MALISEET FIRST NATION

The Madawaska Maliseet First Nation has created a legacy trust named after Louis Bernard that will provide future income for the community. "It's a huge amount of money. In addition to the trust, the money also provided a lot of assistance to our band members, helping them get back on their feet. We provided a large per capita distribution and that's really helped a lot of people." As the funds were distributed throughout the community, Chief and counsel called every band member and explained the history behind the settlement.

"Not only is this money going to improve the lives of our community members, but it will help the local economy as well. Driveways are being paved, garages are being built, and vehicles are being purchased. This is a huge boost to the economy in this region."

For Chief Bernard, this settlement provides hope to First Nations communities across the country, hope that justice can be served. "The tribunal was put in place for a reason and this settlement is proof that it is working. It allows for more unbiased input; even though it's still a colonial system, it's still the federal government system, and it does provide a more arm’s-length review. The fact that you can actually continue to battle and win provides hope that all these injustices can be resolved."

"Although the journey to finally reach justice for our community was a rollercoaster ride, it was certainly well worth the effort. I am proud that my ancestors, particularly Louis Bernard, passed down his genes of justice seeking, determination and perseverance."

This story was originally featured in the spring/summer 2021 issue of UNB Law's Nexus magazine.