Listuguj, Gespe’gewa’gi, 1760s to today – The Listuguj Mi’gmaq Government is actively

pursuing a just resolution of five longstanding disputes concerning breaches of Crown fiduciary duties in and around Listuguj.

Five local disputes As explained at periodic community and Council meetings, the LMG is engaged in negotiations with the Government of Canada to resolve the disputes regarding:

• the Mann-Fraser lands, including the “disputed acreage” ;
• the former Busteed estate;
• the Mission lands;
• the Highway 132 right of way;
• the Interprovincial Highway (bridge approach) right of way.

Not Comprehensive Negotiations on Mi’gmaq rights in Gespe’gewa’gi  

It is important to be very clear on what is and what is not involved. Outside of the relatively small boundaries of these five areas, any proposal made by Canada which must be submitted to the population for ratification before any agreement can be arrived at will in no way deal with or prejudice wider Mi’gmaq Aboriginal rights and title and Treaty rights in Gespe’gewa’gi. . The wider issues are protected under section 35 of the Constitution Act, 1982 and are being addressed through the Mi’gmawei Mawiomi.

Negotiating Team

The LMG negotiating team is made up of Chief Allison Metallic, Chief Negotiator Troy Jerome, Councillor Patty Martin, Jeff Basque, Bob Smith and legal counsel Franklin Gertler, (Click to view the OIC Mandate Busteed Team) supported throughout by Sherri Morrison and other professionals, including land appraisers, and an economic historian.

Law Suits

Of course the grievances are old and have been referred to for many years as “specific claims”, but the immediate context of the current negotiations is the result of two law suits in the Superior Court of Quebec and the Federal Court of Canada, as described below:

Superior Court Busteed case The Busteed dispute goes back to the time of Chief Joseph Claude in the 1780’s. Successive generations of Listuguj leaders delivered petitions and made representations. They conducted historical research, contested surveys and deeds, disputed the authority and results of the Gaspe Land Commission in the 1820s and 1830s and travelled to Quebec City, Ottawa and even London, England to demand justice.

Specific claims research was conducted in the 1980s and 1990s on all five of the land disputes, but the immediate origins of the Busteed law suit dates from 1997. The late Donald Germain received a permit from Gary Metallic Sr. and the Listuguj Overseers Tribal Council, including the late Alex Brisk. Sand was extracted from lot 1 at the south-eastern corner of the former Busteed estate. The sand was used for the building of new homes for the people of Listuguj.

The Busteeds sued in Quebec Superior Court (Busteed v. The Restigouche Indian Band and others, no. 105-05-000231-973) for trespass and damages. The Listuguj parties, including the Chief and Council, the Tribal Council and named individuals, counter-sued for declarations that the lands had been obtained by fraud, that the Busteeds had no good title and that these were still Listuguj lands on the basis of Aboriginal rights, Mi’gmaq title and Treaty rights.

Federal Court Case Listuguj Mi’gmaq First Nation and others v. Her Majesty the Queen in right of Canada (no. T-2478-03) (Click to download Listuguj Mi’gmaq First Nation v. The Queen, Fed. Ct. Statement of Claim), was commenced in the Federal Court of Canada in 2003. The Federal Court claim is not for direct return of land. Rather, it seeks compensation from the Crown for breach of fiduciary duty, loss of use of lands over all of the years in question, related economic and social damages and the current value of the lands of all five of the “specific claims” mentioned above.

Beginning in the 1760s, the Crown asserted authority over lands and waters in Gespe’gewa’gi, but also promised that settlement of colonists would respect, protect and address the interests of the “Indians”. The Federal Court case seeks compensation for the failure to fulfil these promises and Crown acts and omissions by which the Busteed lands as well as the Mann-Fraser and additional acreage, ended up in the hands of settlers.

Most of the Mission lands were returned in the 1990s. However, the law suit seeks compensation for Crown acts and omissions that allowed the loss of the use of the lands and their conversion to commercial non-Church purposes.

The two right of way claims are for more recent events by which reserve lands were taken by Quebec for road purposes while the Crown failed to ensure valid expropriations and adequate compensation to the Band and to the CP (certificate of possession) holders.

Negotiations

Negotiations cannot be conducted at all times in public without threatening the success of the process, though the LMG is committed to an open process.

Of course, at the end of the day, it will be the whole of the voting population of Listuguj, who will decide on ratification of any proposed settlement.

Beginning in 2004, successive Listuguj administrations have sought a negotiated settlement of the two law suits through a process not confined by the federal Specific Claims Policy.

In 2008, the efforts of the LMG and of our federal counterparts resulted in the Government of Canada mandating a Chief Negotiator. In October of that year, Canada a made a global offer of settlement of $21 million, plus the purchase of the Busteed lands and their addition to the Listuguj reserve.  By Community Notice on October 24, 2008, the LMG negotiating team shared the federal letter of offer with the community. Click here to download Canada’s Letter of Offer Oct 17 2008

Since that time there have been close to fifteen formal negotiating meetings in Listuguj, Bathurst, Montreal and Quebec City.

In summary form, here are some of the highlights:

• Without prejudice negotiations The LMG negotiating team rejected the federal suggestion to follow their standard operating procedure across the country, which is to make all of documents and discussions subject to a confidentiality agreement. Such an agreement would have been contrary to the mandate of the LMG negotiating team. Instead the LMG team required a “without prejudice” agreement so that the documents and positions shared in negotiations cannot be used against either party if we have to go back to court. Click to view Without Prejudice Agreement.Click to view the OIC that mandated Troy Jerome to sign the agreement itself.

• Superior Court case settled Effective March 31, 2009, the Busteed litigation in the Superior Court was settled. The Crown acquired the Busteed lands covered by the Superior Court litigation (essentially historic lots 1, 2 and 3 immediately to the west of the Listuguj reserve).

• ATR The LMG is engaged in the process of having these lands added to the reserve. We believe that the addition to reserve (ATR) process is nearing completion.

• Consolidating the land base The intent is to make the lands added to reserve as complete and coherent a parcel as possible. So, the negotiating team seeks the acquisition and addition to reserve of certain lands not covered by the Crown’s purchase in 2009. In addition, there are discussions with Pointe-à-la-Croix regarding Bordeaux Road and regarding the eroded Log & Boom Company lots along the shore. Similarly, initial steps have been taken to have the Battle of the Restigouche site added to reserve and then leased back to Parks Canada.

• Not a numbers game The standard federal practice in litigation settlement negotiations is to make global offers with no detailed explanation or discussion of the basis for and justification of the compensation offered. The LMG negotiating team has made it clear that such an approach of simply haggling over dollar amounts is unacceptable and will not meet with approval in Listuguj.

• Interest-based negotiations Instead we have insisted with Canada on the need to engage in interest-based negotiations, based on principles, objective criteria and information sharing,

• LMG due diligence To support principled negotiations, the LMG  has engaged the services of experienced professionals who are working with us to review historical data, and to identify appropriate valuation methodologies and inputs needed to quantify just, fair and reasonable compensation for the losses suffered by Listuguj.

• Listuguj counterproposal In the spring of 2011, Chief Allison Metallic informed the federal negotiators that their offer of $21 million is rejected as inadequate, unsupported and almost certainly unacceptable to the Listuguj Mi’gmaq. Canada was informed at that time that our due diligence suggests as appropriate and recommendable to the population a range of compensation somewhat in excess of $100 million [link to letter of April 21, 2011]

• Next Phase in Negotiations As a result of the efforts of the LMG negotiating team, Canada has agreed to engage in a process of sharing information about valuation methodologies and inputs that we believe will enhance the likelihood of a successful conclusion to these negotiations.

• Financial advice: The governance and use of any settlement monies received under an agreement approved by the population will require choices about important issues that must be addressed and decided, not prejudged. This is why the LMG intends to seek advice from independent consultants on models for long-term management of settlement monies.

We are working together to address the historic grievances that Mi’gmaq leaders and families have kept alive and pursued for generations.  The goal of the LMG is to achieve the best settlement possible for Listuguj.

WELA’LIEG!