Judge dismisses judicial review of Mount Carleton snowmobile hub

A judge has dismissed two judicial reviews ofthe Mount Carleton snowmobilehub project.

Justice Richard Petrie of Court of Queen's Bench dismissed the complaints filed by the Wolastoq Grand Council, also referred to as the Maliseet Grand Council, and a former park manager. He ordered them to pay $3,000 to the province.

Petrie found the council did not prove it has legal standing to ask to be consulted as an Indigenous body or to claim treaty rights in this case. He also ruled a judicial review is not the proper channel for this kind of challenge.

"While I appreciate why members of the community, be it traditional or contemporary, would have an interest in maintaining any treaty protections, I am not convinced this applies in this particular instance before me," he wrote in his decision.

Last month, the council and Jean-Louis Deveau made arguments to stop the plans to develop the wilderness park, first announced by the Gallant government in 2015.

Council lawyer Gordon Allen and Deveau used affidavits from language and history experts to explain how the snowmobile trails plan contravenes a Peace and Friendship Treaty from 1725.

The treaty promises to protect Indigenous peoples' rights to observe their religion.

"[Nature is] at the core of their religious economy," Allen told the court.

Therefore, Allen argued, when the treaty states "any Indian should not be molested in the practise of their religion," it means Mount Carleton, the last wilderness park in the province, is an essential space for them to practise their way of life.

Possible appeal

Grandmother Alma Brooks said the council willappealthis decision. She said Petrie was wrong to say they have no right to ask to be consulted, because any Indigenous person has the right to protect their environment.

"The reason why we went in the first place was because of the snowmobile hub going right through a park and violating their own rules, right through the middle of a large moose yard," she said. "They didn't even address that at all."

Deveau said regarding the $3,000 amount he and the council have to pay, "Who now is going to want to stick their neck out to protect nature if, in addition to having to pay their own courts, are shackled with having to pay the government's court costs?"

No merit

Petrie wrote that while the council is not seeking to be recognized an an "authorized Aboriginal or treaty rights holder for the Maliseet Nation," the membersare asking the province to consult with them before carrying out further work on the project.

He suggested this indicated they were relying on the words "any Indian" found in the treaty to suggest they have a constitutional right to be consulted.

Petrie called this argument "unique" and "creative" but said "there's no merit" to it.

He said even if he were satisfied with the interpretation of the treaty, there is no evidence Tremblay knew where his people hunted and gathered in and around the park.

Deveau said Petrie "missed the boat on that one."

He said the basis of theirsubmission was that the government failed to take into account the park's own zoning plan developed by a Toursim Park staff member in the 1980s, which doesn't allow snowmobiling in areas that now will be used for snowmobiling.

"Justice Petrie's ruling now prevents the council from exercising its duty/responsibility of care towards the extended members of their families, the plants and animals of the park," he said in an email."That's the right/responsibility which is being infringed upon. "

Petrie said this decision doesn't mean the council can't represent the Wolastoq people or some subset of the nation, but it must first establish that it has the authority to do so.

The decision doesn't suggest how the council could have done that. Allen previously argued it's difficult for traditional governance bodies to establish this authority because they aren't governed by colonial documents such as the Indian Act.

Project update

Stphanie Bilodeau, spokesperson for the Department of Tourism, Heritage and Culture, said a new trail bridge at the mouth of the Little Tobique River is complete.

She said construction of the storage shed and the fuel station is underway, and is expected to be ready by the end of October or early November.

She said no new trails will be constructed within the boundaries of the park, and no snowmobilers will be allowed to use the utility road up Mount Carleton and hiking trails in the park.

"The Department of Tourism, Heritage and Culture has worked with First Nations through a formal consultation process and all issues have been addressed," she said.