Mount Carleton snowmobile project remains in limbo as judge reserves decision

A Court of Queens Bench judge has reserved his decision to dismiss or allow a judicial review of controversial plans for a snowmobile hub in New Brunswick'sMount Carleton Provincial Park.

The Wolastoq Grand Council, also referred toas the Maliseet Grand Council,and a former park manager filed the review to stop the plans to develop the wilderness park, first announced by the Gallant government in 2015.

William Gould, the lawyer representing the province, argued Monday the review should be dismissed because the grand council has no standing as a "recognized" Indigenous body, and therefore the province had no duty to consult. Gould also argued a judicial review is not the proper avenue to fight the province's decision to approve the project, because of its limited scope.

On Tuesday, Justice Richard Petrie said he will divide his decision into two parts. Hewill determinethe standing of the Wolastoq Grand Council, and alsowhether a judicial review is the proper avenue to challenge the province's decision.

"This is not a decision in the ordinary sense ... this is a dynamic thing that is going on in my mind," he told the court in Woodstock at the end of two full days of hearings.

"I've heard compelling arguments by both sidesI just hope that you will understand that I'll do my best and I'll try to get a decision out as soon as I can."

Unique argument

Gordon Allen, the lawyer for the council, usedaffidavits from language and history experts Tuesday 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. He quoted experts who studied the Maliseet or Wolastoq languagewho said the language reveals how the Wolastoq people view the world. In their vocabularies, trees and animals are animate, and make up their natural world.

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

Therefore, Allen argued, when the treaty states "They 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.

The snowmobile projectcontravenes the treaty by threatening the park, Allen said.

The $1.4 million snowmobile hub and trails project is expected to attract hundreds of snowmobilers and tourists to thearea.

Previous zoning

Allen told the court that Mount Carleton Provincial Park was zoned in the 1980s by the provincial tourism department. Some zones allowed snowmobile trails while others were protected environments and off-limits to motorized vehicles.

Allen suggestedsome of the proposed trails go through parts ofthe park that are not zoned for motorized vehicles.

He also alleged the province ignored its own zoning, notingthe resource management plan submitted by the province said the park was not zoned at all. Allen called this a "fatal error."

Petrie asked Gould to respondto that point before court took a 15-minute break. After returning,Gould said it's "unorthodox," but did not elaborate.

The right toa judicial review

In his response to Allen's arguments, Gould reasserted the province's position that the Wolastoq Grand Council does not have the authority to claim the right to consultation.

Gould suggested the grand council could one day become the preferred governance structure, but said it's not currently a recognized collective.

Petrie interjected that the treaty from 1725 recognizes "any Indian," bringing the right to an individual and not a collective. But Gould equated Allen's argument to "old testament gospel" that is an "interpretation" of the 1725 treaty.

"I flatly reject that a treaty ... established a constitutional right to the availability of a judicial review," Gould told the court.

Gould added that the province of New Brunswick isn't saying consultation has to be with First Nations only, but it has to be with an umbrella organization or a traditional structure that has "established consultation prerogatives."